Fantastic Courage in Colorado: Longmont City Council votes 7-0 to appeal judge’s decision saying Longmount has no right to ban fracing within city limits

Longmont City Council votes unanimously to appeal judge’s decision on fracking ban by Tony Kindelspire, August 26, 2014, Times-Call
Applause and a standing ovation greeted the 7-0 vote Tuesday night by the Longmont City Council to appeal Boulder County District Court Judge D.D. Mallard’s ruling in July that said Longmont had no right to ban fracking within its city limits.

While more than two dozen speakers at the public invited to be heard portion of the meeting urged the council to appeal the judge’s ruling, in sometimes heated rhetoric, the city council itself engaged in very little discussion in advance of its unanimous vote.

“I know this will surprise some people,” Councilwoman Bonnie Finley said, introducing her motion to support an appeal. “There’s a need for clarity on the issue. That’s why I am supporting this, and that’s why I believe we should go all the way (to the Colorado Supreme Court).

“And I also believe we should invite other communities with similar interests to join our case.”

Since Longmont voters put a ban on hydraulic fracturing, or fracking, into the city charter in 2012, several other communities along the Front Range have either implemented or are considering implementing similar bans.

Not long after the Longmont ballot measure passed, the Colorado Oil and Gas Association, the state’s largest industry trade group, sued Longmont over the ban, and not long after that it was joined by the Colorado Oil and Gas Conservation Commission, the state agency assigned with overseeing oil and gas development, and TOP Operating, the most active oil and gas company in Longmont.

In her July ruling, Mallard ruled that Longmont’s ban was an “irreconcilable conflict” with state law, which should take precedent under current public policy.

“Whether public policy should be changed in that manner is a question for the Legislature or a different court,” she wrote.

In a brief presentation made by the city’s legal team that fought the case in Mallard’s court, Longmont assistant city attorney Dan Kramer picked up on the “different court” statement by Mallard and also noted that her ruling said she was “not in a position to agree or disagree” with any evidence of health, safety and environmental risks associated with fracking.
The local group Our Health, Our Future, Our Longmont pushed the item onto the 2012 ballot based on what it said are questions about the short- and long-term safety of fracking on the public’s health and the environment. That group has since joined the city’s side of the suit, as has the Sierra Club, Food and Water Watch and Earthworks.

“Based on those risks it’s really a matter of local control and not state control,” Kramer told council.

Phillip Barber, the city’s outside attorney it hired to help fight its case, held up a 5-inch thick binder of evidence the city’s attorneys used to argue their side. “We felt that the evidence showed that the state does not regulate fracking,” Barber said, arguing why he thinks why Mallard’s ruling was incorrect.

“It all kind of boils down to whether the state should have given the city a full trial on these issues,” he said.

Barber told the council that the positive aspects of appealing Mallard’s decision would include the ban remaining in effect — Mallard stayed her decision pending Longmont’s appeal — for at least another 2 to 5 years. Further, council would be defending the will of the voters, which passed the ban by about a 60 to 40 margin, and it ultimately could increase the ability of local jurisdictions to have more control over oil and gas operations than state law currently allows.

On the negative side of continuing the appeal, Barber said, was it would be an uphill battle taking years of litigation; plus the cost: just appealing, first to the Court of Appeals and then the Colorado Supreme Court, could cost between $75,000 and $150,000. On top of that, a trial at the Supreme Court level could cost more than a quarter-million dollars.

Councilwoman Polly Christensen agreed with Finley that now is the time for other communities wanting some local control over oil and gas development to join Longmont.

The case will now proceed to the Colorado Court of Appeals.

[Refer also to:

Alberta Moves to Strike Down Ernst’s Fracking Lawsuit, Landmark case could spark a flood of litigation against the province, lawyer argues

Crown counsel argued that Alberta landowner Jessica Ernst’s case could inspire ‘millions or billions of dollars worth of damages’ in subsequent lawsuits against the province.

An Alberta government lawyer argued in court this week that Jessica Ernst’s lawsuit on hydraulic fracturing and groundwater contamination should be struck down on the grounds that it would open a floodgate of litigation against the province.

“There could be millions or billions of dollars worth of damages,” argued Crown counsel Neil Boyle.

June 30, 2014: Massive Legal Victory in New York State: Towns can ban fracking; New York’s highest court ruled in 27 days

December 20, 2013: Pennsylvania Supreme Court Says It’s Unconstitutional For Gas Companies To Frack Wherever They Want; Act 13, Gas Industry Takeover Law thrown out by State’s Highest Court

“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” ]

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