If state Attorney General Cynthia Coffman wants to waste Colorado taxpayers’ money on a premature legal battle with Boulder County, we encourage the county to give her one. We think she’s wrong on the legal merits, and that she basically admits it in her correspondence with the county. She “suspects” that the county will violate a recent Colorado Supreme Court decision by extending its current short-term moratorium on oil and gas development, but it hasn’t done so yet.
This leaves only two explanations for picking a pointless fight. The first is using the threat of legal action to prevent county commissioners from extending the current five-month moratorium when it expires May 1. If that’s the plan, she should threaten to sue if and when they enact such an extension, not by establishing an arbitrary deadline in February that has no apparent basis.
The second explanation is that this is a political publicity stunt designed to prove her loyalty to the oil and gas industry. A gubernatorial campaign can be expensive. Generally speaking, when a politician sends a letter and issues a news release simultaneously, publicity is her actual goal.
The difference between Coffman’s Feb. 10 deadline and the May 1 expiration of the county’s current moratorium is 79 days. And Coffman would only advance the timetable by that much if the county caved without a fight. If it elects to fight, as it has suggested it will, the court case could easily extend rather than shorten the timeframe, making Coffman’s litigation counterproductive to her stated goal.
The history here is well known. A number of jurisdictions in and around Boulder County enacted bans or moratoria on fracking over the past several years, some of them by citizen initiative at the ballot box, to protest state policies that take land-use decisions out of the hands of the localities, where they traditionally rest, for the benefit of the oil and gas industry. The Colorado Oil and Gas Association, an industry trade group, challenged most of these bans and moratoria in court, contending that state law pre-empts local law in this area. Last May, the Colorado Supreme Court agreed, throwing out Longmont’s ban and Fort Collins’s five-year moratorium.
But the court added a telling penultimate paragraph to its decision in the Fort Collins case: “We express no view as to the propriety of a moratorium of materially shorter duration.”
Why would the court add this paragraph? We can see only one reason — to distinguish between Betpark bans masquerading as moratoria and actual moratoria designed to give jurisdictions adequate time to devise local rules and regulations around a disruptive industrial activity they had not previously permitted.
We can only assume that’s why, in December, the county lifted its long-term moratorium, then scheduled to last through mid-2018, and replaced it with a shorter moratorium designed to allow it to craft rules around oil and gas development in unincorporated areas of the county. The new moratorium is slated to run through May 1. A public hearing on the proposed new rules is scheduled for March 14.
Coffman’s threatening letter demanded the county lift the moratorium by Feb. 10. She wrote “there is reason to suspect that the county will continue its pattern of extending its ‘temporary prohibition’ beyond May 1.” She’s right, there’s reason to suspect that, given the history, but suspicion that something might happen is not the same as that thing actually happening. It is just as possible that County Attorney Ben Pearlman has advised county commissioners that the Supreme Court decision leaves them no option but to prepare to accept fracking applications and that the current moratorium is actually for the purpose of designing local rules. If you examine the county’s timeline for addressing subdivision road maintenance and county jail overcrowding, the current oil and gas timetable actually represents stunning alacrity.
Coffman and the industry will respond that the county has had five years or more to design rules for oil and gas exploration, but the fact is that before the Supreme Court decision it had no intention of allowing oil and gas development. The court decision started the clock on actually preparing for fracking in Boulder County. We’re not lawyers, but we suspect the unsolicited opening the Supreme Court provided for a moratorium “materially shorter” than five years would be interpreted by a lower court to permit the county’s current timetable, under which it would begin accepting applications within a year of the ruling.
The county should not cave. Indeed, it should prepare a vigorous defense of its current process, as Pearlman indicated it would in his response to Coffman. The attorney general’s impatience may have created that rarest of opportunities — a potential victory for local government over the state in a Colorado courtroom.
—Dave Krieger, for the editorial board. Email: kriegerd@dailycamera.com. Twitter: @DaveKrieger
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