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Colorado: District court judge voids voter-enacted fracking ban

Signs of oil and gas development are visible on a landscape level from 35,000 feet in the air.

Signs of oil and gas development are visible on a landscape level from 35,000 feet in the air.

Are communities powerless against the fracking juggernaut?

By Bob Berwyn

FRISCO — Banning fracking within Longmont city limits would result in “waste” of the state’s mineral resources, Boulder District Court Judge D.D. Mallard ruled today, voiding the city’s voter-enacted ban on the controversial drilling practice.

But  fracking won’t resume anytime soon in the northern Colorado town, as Judge Mallard said there will be no fracking “until further order of Court, either from this Court or a higher court.”

In Judge Mallard’s words: “Longmont’s ban on hydraulic fracturing does not prevent waste; instead, it causes waste. Because of the ban, mineral deposits were left in the ground that otherwise could have been extracted in the Synergy well. Mineral deposits are being left in the ground by all the wells that are not being drilled due to the fracking ban.”

Conservation groups that intervened in the case on the city’s behalf expressed disappointment in the ruling and vowed to continue their legal fight, which is likely to end up the Colorado Supreme Court. Mallard’s interpretation of existing law didn’t sit well with attorney Kevin Lynch, who argued the case on behalf of local, state and national groups that lined up to take on the fossil fuel industry and its allies in state government.

“We feel there’s room for the courts to do ad hoc balancing under existing precedent,” said Lynch, adding that the judge only used precendent-setting cases cited by the plaintiffs — the Colorado Oil and Gas Association and the Colorado Oil and Gas Conservation Commission, joined by Top Operating Co. as in intervenor. “She ignored the case law we cited,” Lynch said.

Judge Mallard claimed her hands were tied by a series of decades-old state court rulings, and questioned whether a district court is the right place to revise state energy policy.

“While we respectfully disagree with the Court’s final decision, she was correct that we were asking this Court, in part, to place protection from the health, safety, and environmental risks from fracking over the development of mineral resources,” said Kaye Fissinger, President of Our Health, Our Future, Our Longmont. “It’s tragic that the judge views the current law in Colorado is one in which fracking is more important than public health; reversing that backwards priority is a long-term battle that we’re determined to continue,” Fissinger said.

Many of the chemicals used in fracking are known to be toxic endocrine disrupters, and people all over Colorado have suffered serious health issues associated with fracking activities. State regulators don’t come close to covering all the ground they need to when it comes to inspection and enforcement, so more and more local communities are taking steps to protect themselves.

The judge’s ruling in this case may actually strengthen the movement to pass a statewide fracking law in November that could help clarify the ever-murky ground between local control and state pre-emption. Mallard focused a lot of attention on the state’s authority over orderly development of resources

“This decision means two things,” said Bruce Baizel, Earthworks Energy Program Director. “The judge has invited us to seek the change we need either through the higher courts or the legislature. We fully intend to pursue the former on appeal while the latter underscores the need for the citizens of Colorado to get out and support the Environmental Bill of Rights ballot measure this fall.”

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