A decision this week by the Broomfield City Council to postpone action on a proposed five-month moratorium on new oil and gas development — despite strong turnout by citizens urging the temporary ban — highlights the legal and political uncertainties that local government officials are facing as they try to figure out what authority they might have to control the spread of fracking operations in their communities.
The moratorium proposal had been prompted by the discovery last fall that drilling plans submitted by Extraction Oil & Gas involved up to 141 wells at four sites, far more than previously announced. In December the city council approved the moratorium on first reading by a unanimous vote. But since that time, councilmembers have had ample time to hear from the Colorado Oil and Gas Conservation Commission and from Extraction, which has offered to reduce the number of wells to 139 and move a couple dozen of them farther away from neighborhoods.
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At Tuesday night's meeting, some councilmembers, while critical of the energy company's "epic miscommunication over the past several months," opined that a moratorium might just lead to a lawsuit — one the city could very well lose. In Colorado's see-saw battle over whether municipalities can exert some regulatory controls over drilling operations, the fractivists scored major victories at the polls in 2012-’13, passing moratoria or outright bans of new wells in Boulder, Broomfield, Fort Collins, Lafayette and Longmont. But the Colorado Supreme Court later threw out most of those measures, including Broomfield's five-year moratorium, insisting that the regulatory authority properly belongs to the state.
It's unclear whether even a short reprieve, such as the one residents of Broomfield are seeking in order to get a better handle on Extraction's plans, can pass muster in court. The council will take up the matter again next month, after a series of community meetings — and doubtless more negotiations with Extraction about some of the wells' proximity to schools and housing. "We carefully chose these four locations to be as far as possible from residential housing and to be compatible with surrounding development," notes a presentation of the plan on the company's website.
In the meantime, Broomfield Clean Air & Water issued a statement expressing disappointment in the delayed vote: "Extraction's revised plan of 139 wells, down from 141 wells, is not an acceptable alternative and does not show serious concessions, especially given the history. Additionally, numerous health and safety concerns, including air contamination, leaks, spills and chemical migrations from subsurface injections, remain unaddressed."