Will Coffman Drop the Lawsuit Against Boulder's Fracking Moratorium?

As Boulder County prepares to end its moratorium on fracking, officials are wondering why a two-month-old lawsuit against the moratorium filed by the Colorado Attorney General is still in the works.

The suit is the last in a line of legal challenges to Boulder County’s temporary ban on new oil and gas development permits, which has been extended three times since the Colorado Supreme Court struck down several Front Range fracking bans last May.

Colorado Attorney General Cynthia Coffman filed the latest suit on February 14, 2017, seeking a court-ordered removal of the temporary fracking ban. With the moratorium ending on May 1, however, Boulder County officials don’t know why they’re still being sued.

Whereas cities like Fort Collins and Longmont quickly removed their fracking bans after the Supreme Court ruling, Boulder County repeatedly extended its moratorium in what Coffman believes is a violation of state law. David Hughes, the attorney leading Boulder’s defense, says the move ensured that the county had enough time to enact appropriate regulations.

Almost a year after the Supreme Court decision, Boulder County has adopted the “strictest regulations it could enact under the law,” says Hughes. The comprehensive rules go into effect on May 1 and effectively end five years of extended fracking bans in Boulder — putting the lawsuit in awkward territory.

Asked by Westword why the state would continue spending taxpayer money on the lawsuit, Hughes affirms that he has “asked them that question many times and they haven’t answered it,” adding that “after May 1...[the lawsuit] will be even more moot than it already is.”

Annie Skinner, a spokeswoman for the Colorado Attorney General’s Office, says that “Boulder has not yet removed the moratorium, so at this point nothing has changed. If Boulder removes the moratorium, then we will consider the appropriate steps at that time.

“Every local government across the state has an obligation to comply with the law,” continues Skinner, “and it is the attorney general’s job to ensure that the state’s laws are respected throughout Colorado.”

Meanwhile, Boulder County is waiting to hear whether a county court will accept its motion to dismiss the case, and intends to file another request after May 1 if necessary.

But the county’s new oil and gas regulations may face legal challenges of their own.
Boulder’s long-awaited oil and gas regulations leave no stone unturned, covering the development process from site assessment and drilling through disposal of industrial waste.

“The regulations are comprehensive and lengthy,” says Hughes, “and they address a number of areas that are of particular concern to the citizens of Boulder County and the Board of County Commissioners. Those especially include air quality, water quality and the location issues – looking at, especially, the recent developments in the oil and gas industry that have much larger well pads with an increased number of wells.”

The regulations, which span fifty pages, also institute a “special review” process in which potential oil and gas operators are first required to appear with residents in a video-recorded “neighborhood meeting,” then in a hearing before the county’s planning commission and, ultimately, the Board of County Commissioners.

Hughes calls the level of regulations “strict” but “appropriate” for the county. The Colorado Oil and Gas Association disagrees. The primary trade group for oil and gas operators in Colorado, COGA is also party to the current suit against Boulder County and filed suit against Longmont and Fort Collins in 2012.

In a written statement, COGA president and CEO Dan Haley called the new regulations “unrealistic,” noting that "the County is attempting to regulate beyond their authority and with complete disregard for state law and the robust regulations already in place.

“Our legal team will be conducting a thorough analysis over the coming weeks,” wrote Haley, suggesting that Boulder County may face another round of lawsuits from the industry. As for the state, Skinner says that the attorney general’s office is still reviewing the new regulations and that “it is a bit too soon to comment on the substance.”

Regardless, Hughes says, the county “would be prepared to defend whatever other lawsuit comes our way.”

The end of the five-year fracking ban will open Boulder County to oil and gas operators as the price of natural gas rises, potentially ending an energy “bust” that began in 2014.

Boulder sits on the edge of the same shale formation as Weld County, which leads the state in both oil and natural gas production. Operations on the Niobrara shale formation, which goes from Denver up the Front Range, has put fracking into areas as dense as Broomfield.

This also comes as a report from the Center for Western Priorities shows that there were 509 spills in Colorado related to oil and gas production in 2016.