Hydraulic fracturing, or “fracking,” is a hotly debated topic in many states. In New York and Pennsylvania, anti-fracking groups have obtained a statewide ban on fracking and the allowance of local authority to regulate fracking, respectively. Texas, however, has enacted a state law expressly preempting local authority over a number of drilling activities. In March 2016, the Louisiana First Circuit recognized the preemptive authority of state law to regulate and permit fracking. Now, the Colorado Supreme Court rendered two opinions on May 2, 2016 finding state law preempted local efforts to prohibit fracking.
The residents of Longmont, Colorado voted in 2012 to add Article XVI to the City’s home-rule charter. The Article prohibited fracking and the storing or disposing of wastes created by fracking within the City’s limits. The Colorado Oil and Gas Association sought a declaratory judgment invalidating and permanently enjoining the enforcement of the Article. City of Longmont v. Colorado Oil and Gas Association, 2016 CO 29, ___ P. 3d ___ (Colo. 2016). The Colorado Constitution recognizes the power of home-rule charters to supersede “any law of the state in conflict therewith.” Colo. Const. art. XX, § 6. However, the Colorado Supreme Court has consistently held that state law supersedes home-rule ordinances when they conflict on matters of either state concern or mixed local and state concern. The Court concluded that the Longmont Article addressed a matter of mixed state and local concern and found the Article conflicted with and materially impeded the Colorado Oil and Gas Conservation Act. Therefore, the Court held that state law preempted local attempts to regulate and prohibit fracking. That same day, the Court made the same ruling with regard to a local moratorium on fracking enacted by the City of Fort Collins, Colorado. City of Fort Collins v. Colo. Oil and Gas Ass’n, 16 CO 28 (Colo. 2016). This moratorium, like the home-rule charter article, was preempted by the Colorado Oil and Gas Conservation Act.
The Colorado opinions echo the recent ruling of the Louisiana First Circuit. In 2014, St. Tammany Parish filed suit after the announcement by Helis Oil & Gas of its intent to begin hydraulic fracturing in the Parish. St. Tammany Parish Government v. James H. Welsh, 15-1152 (La. 1st Cir. App. Mar. 9, 2016). The Parish filed suit against the state’s Commissioner of Conservation. The Parish pointed to local ordinances zoning the proposed site as residential and also claimed the Commissioner’s permitting of the Helis project was unconstitutional. The court agreed with the Parish that Article VI of the Louisiana Constitution bestows the land use and zoning power on the Parish but the court also recognized exceptions to this local power when the legislature’s clear and manifest purpose in enacting a law is to preempt the local ordinance. The court recognized Louisiana Revised Statute § 30:28(F), which grants the Commissioner permitting power, as supreme over any other agency or political subdivisions’ attempt to prohibit or interfere with permitted drilling. It further held that the State’s extensive legislation addressing every aspect of oil and gas exploration evidenced the legislature’s implied intent to preempt that area of law. The Parish has requested review of the decision by the Louisiana Supreme Court.
These recent cases point out that the authority to regulate fracking varies from state to state and should be evaluated accordingly.