State Law as a Limit on Local Regulation of the Mineral Industry
| Publication year | 1986 |
| Pages | 1657 |
| Citation | Vol. 15 No. 9 Pg. 1657 |
1986, September, Pg. 1657. State Law as a Limit on Local Regulation of the Mineral Industry
Recent controversies over whether to allow oil and gas development in Douglas County and Greeley(fn1) have brought local government regulation of land use into conflict with the state Oil and Gas Conservation Commission ("Commission"). This has raised interest in how the courts will decide these disputes and others where the authority of state and local government apparently overlap.
As a general rule, local government ordinances can be preempted by the laws of state and federal governments. However, in matters of "purely local concern," the ordinances of Colorado home rule cities preempt state law. The powers of counties and other municipalities are less clearly defined, but may expect state deference to their enactments.(fn2)
In general, zoning is a matter of local concern. However, mineral development is to some degree a matter of "statewide concern" as a result of delegation of authority to state boards by the Oil and Gas Conservation Act and the Mined Land Reclamation Act.(fn3)
The "statewide conern" and "purely local concern" arguments have been applied in the present controversies. In Oborne v. Board of County Commissioners, Douglas County,(fn4) the Commission argued that county regulation of oil and gas operations is precluded because it is a matter of statewide concern. The Commission is making the same argument in the Greeley cases.(fn5) The City of Greeley, a home rule city, argues that it does not have to consider the regulations of the Commission in land use decisions because this is an area of purely local concern. Because of the importance of the viability of a statewide regulation system and the traditional authority exercised by local government over land use, Colorado courts are unlikely to limit power currently being exercised by one level of government or the other.
Colorado cases have defined a third category of conflicts between state and local law. Where the two levels of authority meet and the concern is "mixed," state and local law can coexist. Where there is a conflict between the two levels of authority, the state ordinance will apply.(fn6) A Colorado statute specifically provides for supremacy of state enactments.(fn7) However, the presence of "statewide concern" does not automatically invalidate local ordinances, and normal precepts of preemption will still apply.(fn8)
The concept of preemption at a state level does not differ greatly from that at the federal level; therefore, federal cases can be used as guidance. In the absence of express statutory preemption, analysis centers on the possible intent of the higher government to occupy the field as determined by the scope of the legislation and the facts of the situation.(fn9) Where occupation of the field is found, the regulation of the lower governmental unit is preempted. This is also true where it is impossible
Even if the higher government has occupied some definable field, it is important carefully to determine the bounds occupied. For example, the U.S. Supreme Court in Pacific Gas & Electric Co. v. Energy Resources Conservation Commission(fn11) held that, while the federal government occupied the safety and "nuclear" aspects of nuclear power plants, states retained their "traditional" authority over a number of things concerning nuclear plants, including...
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