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 eorts 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 signicantly 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 specically 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 signicant 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, eorts
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.
