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When state and local laws conflict

By: Jim Flynn
August 18, 2016 Updated: August 18, 2016 at 12:55 pm
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So what happens when a Colorado municipality passes a law (usually called an ordinance) in possible conflict with a law created by the state Legislature? The answer is - legal chaos.

The Colorado Constitution grants to municipalities (such as Colorado Springs) adopting a "home rule" charter the right to govern their own affairs. Specifically, Section 6 of Article XX of the state constitution says that laws created by a home rule municipality "shall supersede within the territorial limits of said city or town any law of the state in conflict therewith."

But that's not really how it works. Instead, if the matter in question is one of "statewide concern" and the local law gets in the way of the functioning of the state law, the local law is pre-empted. Sometimes the Legislature, when enacting a law, makes a clear statement that the law is a matter of statewide concern and municipalities need to butt out. Other times, however, courts have to decide the statewide concern issue by looking closely at the language the Legislature used in writing the law, the need for statewide uniformity and/or the impact a local law might have beyond a municipality's geographical limits.

To further complicate the situation, even if a matter is of statewide concern, a state law and a municipal law dealing with the same subject can coexist. Thus, courts have to look not only at the issue of statewide concern but also the issue of operational conflict in deciding whether or not a state law will pre-empt a local law.

This issue of state law versus local law came to a head recently in two cases decided on May 2 by the Colorado Supreme Court. Both involved fracking. In 2012, the city of Longmont passed a law prohibiting fracking activity, and the storage of fracking-related byproducts, within city limits. In 2013, the city of Fort Collins didn't outright ban fracking, but it did put in place a five-year moratorium. Both cities were sued by the Colorado Oil and Gas Association, a trade organization, and in both cases the cities lost. The Supreme Court concluded that, by reason of the Legislature's passage of the Oil and Gas Conservation Act; the creation of a regulatory agency to administer the act (the Colorado Oil and Gas Conservation Commission); the comprehensive rules this agency has put in place; and the fact that oil and gas deposits don't pay much attention to municipal boundaries, fracking is a matter of statewide concern. The court also found there was an irreconcilable operational conflict between the state law and these local laws, and the local laws were therefore preempted.

After these Supreme Court decisions, although there is still room for municipalities to regulate some aspects of fracking activity, its outright ban is no longer an option, and it's largely up to the Oil and Gas Conservation Commission to decide how oil and gas deposits can be efficiently and fairly developed "consistent with the protection of public health, safety, and welfare, including protection of the environment and wildlife resources."

In furtherance of that agenda, the commission recently approved an application to drill 28 wells in the Garfield County community of Battlement Mesa. And the commission is continuing its review of an application to drill other wells closer to the Colorado River and a municipal water intake.

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Jim Flynn is a private attorney with Flynn Wright & Bentley LLC in Colorado Springs. He also is the author of three law-related novels. Contact him at moneylaw@jtflynn.com.

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