Tug of War Over Colorado's Energy Future: State Preemption of Local Fracking Bans

• Date: 01 June 2014
• Author: Colin C. Deihl, Jamal L. Knight, Alexander F. Logemann, and Ann E. Prouty

44 ELR 10524 ENVIRONMENTAL LAW REPORTER 6-2014

Tug of War Over

Colorado’s

Energy Future:

State Preemption

of Local Fracking

Bans

by Colin C. Deihl, Jamal L. Knight,

Alexander F. Logemann, and

Ann E. Prouty

Colin C. Deihl is a Partner and Jamal L. Knight,

Alexander F. Logemann, and Ann E. Prouty are

Associates at Faegre Baker Daniels LLP.

Summary

Colorado is one of the epicenters of hydraulic frac-

turing in the United States. In addition to promising

a lower carbon fuel source and increased domestic

energy security, this development has attracted oppo-

sition from local citizens and governments worried

about the local impact of the natural gas activities. e

authors review the state of play in Colorado hydrau-

lic fracturing and suggest that loca l eorts to restrict

hydraulic fracturing should themselves be prohibited

due to comprehensive state regulation in this arena.

In the past decade, hydraulic fracturing and horizontal

drilling have signicantly expanded Colorado’s pro-

duction of clean-burning natural gas, natural gas liq-

uids, and oil, but have also generated public concern about

perceived environmental and public health risks associ-

ated with exploration and development of hydroca rbon

reserves. While fracking in Colorado is specically per-

mitted at the statewide level, subject to regulation by the

Colorado Oil and Gas Conservation Commission, some

municipalities have responded to local concerns by pass-

ing moratoria and other restrictions intended to prohibit

the practice within their geographic limits. ese morato-

ria raise signicant legal questions regarding the authority

of loca l governments to ban natural resource production

within their jurisdiction.

is Article explores the history of hydraulic fractu ring

and its regulation, the recent attempts to ba n hydraulic

fracturing in cer tain parts of the state, and the legal limits

of local governments’ ability to do so. While opposition to

hydraulic fracturing in t he state is likely to persist, eorts

to ban the practice at the city and county level should be

preempted by Colorado’s statewide regulatory str ucture.

I. The History of Hydraulic Fracturing

Hydraulic fracturing —the use of pressurized uids to

extract oil or natural gas from tight rock formations—has

been used in oil and gas development for more than 60

years.1 To implement the process, uid is pumped down

a well into formations often located one mile or more

beneath the surface. e hydraulic pressure created by the

uids creates small cracks in t he formation, at which time

small granular solids, such as sand or cera mic beads, are

pumped into the cracks to keep the cracks open after the

hydraulic pressure is removed.2 e cracks are then utilized

to extract otherwise inaccessible oil or gas from the for-

mation. Hydraulic f racturing increases the rate at which

a well is capable of producing oil or gas. In fact, many

wells require hydraulic fracturing to permit any economic

extraction of hydrocarbons.

While the use of hydraulic fracturing technology is not

new, recent advances in drilling technology have led to a

surge in the use of hydraulic fracturing in the past decade.

Using so-called horizontal drilling, operators are now able

to access and recover more oil or natural gas from a single

wellhead. Instead of only drilling straight down from t he

wellhead, operators can now drill down to the formation

that they want to tap, and then turn the drill 90 degrees to

1. See, e.g., Dennis C. Stickley, Expanding Best Practice: e Conundrum of

Hydraulic Fracturing, 12 W. L. R. 321, 323 (2012).

2. See Stickley, supra note 1, at 323-24.

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.