State law overrides city rules on oil, gas

Judge kills Thornton buffers and pipeline regulations meant to protect people

A state judge has rejected Thornton’s rules requiring 750foot buffers and pipeline safety to protect residents from intensifying oil and gas activity inside its boundaries — declaring these rules illegal because they conflict with more permissive state law.

And industry leaders on Wednesday issued a warning: Colorado cities that do what Thornton did will face a similar fate. The Colorado Oil and Gas Association and the American Petroleum Institute had filed a lawsuit attacking the rules that Thornton made in August.

But cities, including Broomfield, are pressing ahead carefully, prepared to face legal consequences.

Colorado District Judge Edward Moss, a former mayor of Westminster, relied on a 2016 state Supreme Court ruling that he interpreted as meaning municipalities “cannot authorize what state law forbids or forbid what state law allows.” He ruled that the state’s Oil and Gas Conservation Commission rules for the industry trump 15 different rules Thornton made, including the buffer requirements. However, Moss declined to reject other rules requiring companies to consolidate wells and minimize “site disturbances.”

The ruling, issued Tuesday night, gave specific grist for answering a question many Colorado

Front Range communities are asking: What can local leaders do legally — using traditional land use and zoning powers that the high court has recognized — to regulate drillers’ activity?

Moss decided local rules are illegal wherever they have “materially impeded” efficient fossil fuels development. For example, an oil well 600 feet from a playground couldn’t have been drilled under Thornton’s rule but is allowed under the state’s 500-foot setback rule.

This case looms as the latest as courts grapple with the conflict between cities and the COGCC appointed by Gov. John Hickenlooper and tasked by lawmakers with facilitating orderly extraction of fossil fuels while protecting public health and the environment.

It boosts the industry as it pushes to produce inside Colorado Front Range communities, where residents object to pollution, truck traffic, regular explosions and broader climate impact. Colorado’s population has been growing at rates among the fastest in the nation. At the same time, companies are expanding operations to increase production as oil prices rise, relying on a “split estate” system that forces land owners to give companies that own mineral rights reasonable access to drill.

“This ruling, again, spells out quite clearly that local governments cannot pass rules that conflict with the state’s authority to regulate oil and gas development and the federal government’s authority to regulate gathering lines. Those communities that choose to do so will simply continue wasting the hard-earned dollars of their taxpayers,” COGA president Dan Haley said Wednesday in a statement. “This ruling should be used as a guide for those local governments on the northern Front Range that are currently reworking their oil and gas regulations.”

Municipal advocacy groups emphasized that state Supreme Court rulings have buttressed local government powers to regulate land use and protect public safety and health.

“This is a contentious issue in a lot of communities. There’s certainly a role for the state, through the commission (COGCC), in terms of their permitting powers,” said Colorado Municipal League executive director Sam Mamet.

“But there is, from our viewpoint, an equal amount of authority that cities also have through their land use powers and police powers. It’s just going to have to be sorted out, yet again,” he said, suggesting that the Thornton decision will be appealed. “The question comes down to whether you push the envelope too far in the industry’s view — to where it impedes their ability to drill. For people in some communities, this case may cause a particular city or county to take a step back and say: ‘Well, maybe we will just wait until this case involving Thornton plays itself out.’ For others, they may say: ‘We’re going to continue to regulate and adopt our own policies, and let the courts catch up with us. If the industry disagrees with us, the industry disagrees with us.’ It will be a mixed bag in how different communities will respond.”

Last week, Broomfield city and county leaders looked at proposed new rules that would require oil and gas companies to provide an analysis of alternative sites, use electric motors instead of diesel-powered equipment, and ensure setback buffers of up to 1,320 feet around 18-well industrial pads. The draft rules also would forbid storage of oil and gas in tanks inside city limits. They’ve scheduled a second meeting next month.

“We have our charge from our citizens, and that is to adopt rules we think will protect public health, safety and welfare,” said Tami Yellico, Broomfield’s director of strategic initiatives.

In neighboring Boulder County, chief planner Kim Sanchez said, “We will not be deterred by this ruling, and we are confident that will be true for many other communities.

“We know that the oil and gas industry is litigious. That will not stop us from doing everything we can to protect public health and the environment.”