2016 CO 28
Colo.2016Background
- Fort Collins voters approved a citizen-initiated ordinance imposing a five-year moratorium (with no exceptions) on hydraulic fracturing and storage of fracking waste within the city, to allow study of health and property-value impacts.
- City amended its municipal code to prohibit hydraulic fracturing and certain waste storage, with narrow grandfathering for pre-existing wells under operator agreements.
- Colorado Oil and Gas Association sued, seeking a declaratory judgment and injunction, arguing the Oil and Gas Conservation Act (OGCA) and Commission rules preempt the moratorium.
- The district court granted summary judgment for the Association, concluding the moratorium was preempted; Fort Collins appealed and the case was transferred to the Colorado Supreme Court.
- The Supreme Court treated fracking regulation as a matter of mixed state and local concern and examined express, implied, and operational conflict preemption, focusing on whether the moratorium materially impeded state law and regulatory objectives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state law preempts Fort Collins's fracking moratorium | OGCA and Commission rules preempt the moratorium because state interest requires uniform regulation | Home-rule authority and local land-use/zoning power permit the moratorium as a local exercise of authority | Moratorium is preempted due to operational conflict with state law |
| Whether OGCA expressly or impliedly preempts local regulation of fracking | (Association) OGCA occupies the field for fracking regulation | (Fort Collins) OGCA does not clearly displace local land-use authority; no express preemption | No express preemption; no implied field preemption — local land-use authority preserved in part |
| Whether a five-year moratorium is a permissible temporary zoning tool | (Fort Collins) Moratorium is a temporary ‘‘time-out’’ to study impacts and is distinct from a ban | (Association) Moratorium effectively prohibits fracking statewide within the city and impedes state program | Five-year prohibition is functionally a ban that materially impedes state objectives and is preempted |
| Standard of review and burden on preemption claim | Fort Collins suggested presumptions favor municipal zoning (arguing high burden on challenger) | Association proceeded under ordinary legal preemption standards | Preemption is a question of law; no ‘‘beyond a reasonable doubt’’ standard required for challenger |
Key Cases Cited
- Bowen/Edwards Assocs., Inc. v. Bd. of Cty. Comm'rs, 830 P.2d 1045 (Colo. 1992) (framework for home-rule preemption and operational conflict analysis)
- Voss v. Lundvall Bros., Inc., 830 P.2d 1061 (Colo. 1992) (local land-use authority over oil and gas not completely preempted by state law)
- Webb v. City of Black Hawk, 295 P.3d 480 (Colo. 2013) (de novo review of legal questions about home-rule/state conflict)
- Sellon v. City of Manitou Springs, 745 P.2d 229 (Colo. 1987) (zoning decisions presumptions discussed)
- Williams v. City of Central, 907 P.2d 701 (Colo. App. 1995) (moratoria as temporary measures; distinguished on facts)
- Claridge House One, Inc. v. Borough of Verona, 490 F. Supp. 706 (D.N.J. 1980) (one-year moratorium preempted where it undermined state regulatory program)