City of Lafayette "Community Rights Act" Fracking Ban Amendment, Question 300 (November 2013)

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A City of Lafayette Ban on New Oil and Gas Fracking Amendment, Question 300 was on the November 5, 2013, election ballot for voters in the city of Lafayette in Boulder County, Colorado. It was approved, but it was struck down by a court ruling.

This measure, which was referred to by supporters as the "Lafayette Community Rights Act" and was put on the ballot through a citizen petition drive, amended the Lafayette city charter to add a "Community Bill of Rights and Obligations" section which would impose a ban on oil and gas extraction and all related activities, especially fracking, within the city limits. The proposed amendment also established certain rights for city residents and ecosystems as part of the city charter such as clean water, air and freedom from certain chemicals and oil and gas industry by-products. The amendment, moreover, included a clause making all municipal corporations "subordinate" to city residents "in all respects at all times." The amendment also established that "ecosystems possess unalienable and fundamental rights to exist and flourish within the City of Lafayette. Residents of the City shall possess legal standing to enforce those rights on behalf of those ecosystems."

Election results

otLafayette Question 300
Result		Votes	Percentage
a Yes		5,329	60.11%
No		3,536	39.89%

These results are from the Boulder County elections office.

Text of measure

Ballot question

The question on the ballot:

Shall Chapter II of the Lafayette Home Rule Charter be amended to add a new section 2.3 entitled Community Bill of Rights and Obligations to (i) prohibit corporations, or persons using corporations, from extracting gas and oil within the city limits, except through currently active wells; (ii) prohibit corporations, or persons using corporations, from depositing, storing or transporting within city limits any water, brine, chemical or by-products used in or that result from the extraction of gas or oil; (iii) prohibit corporations, or persons using corporations, from engaging in the creation of fossil fuel and nuclear energy production or to create delivery infrastructure that facilitates activities related to the extraction of gas and oil; (iv) prohibit corporations, or persons using corporations, from extracting water from sources in the city for use in the extraction of gas and oil; (v) impose liability on corporations, or persons using corporations, that engage in the extraction of gas or oil extraction outside of the city limits for harm caused within the city; (vi) interpret the definition of “persons” who are entitled to certain rights and privileges of the United States and Colorado Constitutions; (vii) limit the rights of corporations, or persons using corporations, that engage in gas and oil extraction to enforce state or federal law, or to challenge municipal or charter provisions; and (viii) invalidate permits, licenses, privileges or charters issued by state or federal agencies, boards or commissions that would violate the charter prohibitions?

Amendment text

Below is the introduction of the full text of the proposed charter amendment:

“

PROPOSED CITY CHARTER AMENDMENT To be presented to the electors of the City of Lafayette, Colorado, at the next regular election Adding Section 2.3 to Chapter II of the Lafayette City Charter as Follows: Section 2.3. – COMMUNITY BILL of RIGHTS and OBLIGATIONS - THE PROTECTION OF THESE RIGHTS BY PROHIBITING NATURAL GAS AND OIL EXTRACTION The rights secured here are not mere privileges; they are obligations justly placed on government and on each member of the community to respect freedoms held individually and collectively by every member of the community. The protection of these rights constitutes the highest and best use of the police powers that this municipality possesses. Throughout this Section, the term “ecosystem” shall include, but not be limited to, air, soil, independent (non-corporate centrally controlled or contracted) agriculture, naturally occurring plants, animals, wetlands, streams, rivers, aquifers, and other water systems. All rights secured by this Charter and this Section shall be self-executing. These rights shall be enforceable against private and public entities. The rights specifically enumerated by this Community Bill of Rights Section are enforceable exclusively with regard to the extraction of natural gas and oil, as prohibited by this charter provision. The expansion of protections of the rights herein enumerated, and the further enumeration of rights, as well as additional prohibitions against rights-denying behavior, through citizen use of the initiative process, is hereby encouraged.

”

For the full text of the Amendment see the following page: City of Lafayette "Community Rights Act" Question 300, Amendment Text

Support

Supporters

• East Boulder County United
• League of Women Voters

Arguments in favor

Supporters of fracking bans argued that the fracking process allows methane gas and carcinogenic and toxic chemicals to be released into groundwater. And, in general, they claimed that fracking is harmful to nearby air and water and that citizens have a right to ban it in populated areas like cities and towns.

The League of Women Voters compiled a voter guide to Question 300, in which the arguments in favor were:

Anti-Fracking forum by EBCU

“

1. Unconventional oil and gas drilling using hydraulic fracturing is a toxic, dangerous, industrial process that does not belong within the city limits of a residential community. It cannot and should not exist in close proximity to homes, parks, and schools. 2. Toxic chemicals are used in the drilling and fracturing process, and additional toxins (volatile organic compounds) are released into the air and ground during production. These chemicals include endocrine disrupting compounds and benzene, a known carcinogen. All have serious health repercussions, especially for children and the elderly. 3. The Lafayette Community Bill of Rights to ban hydraulic fracturing elevates community rights above corporate “rights.” It establishes our community’s right to say no to any dangerous industrial activity within our city limits. 4. The Lafayette Community Bill of Rights to ban hydraulic fracturing protects Lafayette’s public health, environment, and property values in perpetuity, not just for a fixed period of time.

”

Opposition

Opponents

• Colorado Oil & Gas Association
• The Lafayette City Council
• Lafayette Campaign for Energy Choice

Arguments against

Gas and oil company officials voiced concerns that the language in the proposed charter amendment was too vague and could have legal consequences unforeseen by voters who may choose to enact it. They pointed to a possibility that natural gas would not be allowed to be transferred through pipes in the city, which would curtail natural gas service to the residents of Lafayette.

Doug Flanders, Colorado Oil & Gas Association director of policy and external affairs, said, concerning the lack of a ballot summary on the petition forms, "[...] For example, signatories were probably unaware that approval of this ballot could stop the transportation of all natural gas through pipes, which means disallowing natural gas to your homes."

Video proposing the safety of fracking

The League of Women Voters allowed the following arguments against Question 300 to be published in its voter guide, although the League was not responsible for them:

“

1. There’s not a single instance of hydraulic fracturing contaminating ground water in Colorado. Period. 2. Initiative 300 contains vaguely written language that could have a profound effect on the delivery and transport of natural gas in Lafayette. According to one expert quoted in the Boulder Camera, “companies that don’t want to find themselves on the wrong side of the law will simply avoid doing business in Lafayette (if 300 passes).” 3. Green energy solutions ─solar gardens and wind power─ that we use in Lafayette require the extraction of cheap, reliable and plentiful natural gas found right here in Colorado. When the wind doesn’t blow and the sun doesn’t shine, it’s mostly natural gas that allows us to turn on the lights, power our smart phones and drive our electric cars. 4. Renewable energy sources need a backup power source that doesn’t depend on the weather. Natural gas is clean-burning, plentiful and home grown. Lafayette citizens deserve policy, not posturing. Plan it. Don’t ban it.

”

Logo of Question 300 Opponent

The Council's position

Lafayette City Council members voted unanimously to pass a resolution officially opposing Question 300, although many council members expressed condemnation of the practice of fracking. The resolution expressed the following concerns with the language of the proposed amendment of Question 300:

• The timing and need of such a wide, sweeping amendment was dubious.
• The amendment may have had illegal incompatibilities with the Colorado and United States Constitutions regarding the status of "persons."
• The amendment may have violated property rights, resulting in the city having to hand over millions of dollars to compensate oil and gas companies.
• Litigation such as the court case in Longmont would be very likely in the event of Question 300's passage.

The resolution, however, pointed out with approval the effective three year moratorium on new oil and gas extraction passed by the City Council in 2012.

Councilman Pete d'Oronzio said, "I am completely opposed to fracking in Lafayette ... and trying to do something about it is important. What this charter amendment does is takes fracking and writes a document around it that attempts to separate Lafayette from the United States Constitution and the Colorado Constitution ... at the expense of Lafayette. I think it's a really bad idea. It is really overreaching."

Concerning the Longmont lawsuit, Mayor Carolyn Cutler said, "If Longmont wins that battle, then we have a path ourselves. It's a battle that a number of people think is important. What a three-year moratorium does for us is gives us time." Cutler went on to say, "I'm not sure that if we don't have any applications, and somebody else is fighting that battle ... we don't need to be in it right now."

Media endorsements

Support

• Boulder Weekly: The staff of the Boulder Weekly endorsed both this measure in Lafayette and a fracking moratorium measure in Boulder. They wrote: "Yes, it’s pretty broad, and the city may well get sued over the language, since it goes further than Longmont’s lawsuit-embroiled ban. But we’re endorsing Question 300 on principle, the principle that a community should have the right to exert local control when it comes to keeping corporations and misguided governors from compromising public health and safety."

Path to the ballot

See also: Laws governing local ballot measures in Colorado

Signatures

The petitioners working with East Boulder County United (EBCU) to get Question 300 on the ballot needed 948 valid signatures to reach the required threshold. EBCU, led by Cliff Willmeng, turned in over 2,042 signatures, out of which the city clerk found more than an adequate number to be valid. The city clerk certified the measure for the ballot.

oil drilling site

Petition protest

See also: Laws governing the initiative process in Colorado

A Lafayette resident, Jon Hydeman, filed a protest against the Question 300 ban initiative trying to disqualify the petition on the grounds that the petition forms lacked the following components:

• a summary of the ballot language
• an affidavit verifying the circulator read and understood the laws governing petition circulation,
• and the inclusion of a section for petition signatories to include their county of residence.

He filed the protest with the Lafayette city clerk. When the protest was announced by the Colorado Oil & Gas Association, Tisha Schuller, the organization's president and CEO, said, "Poorly crafted and insufficient ballot measures do a disservice to the communities they impact. Activists challenge the industry to work honestly and transparently, and we ask the same of them."

Lafayette City Clerk Susan Koster presided over a hearing on the protest in which evidence was heard on both sides. At the end of the hearing, Koster denied the protest saying, “As a home rule city, Lafayette operates under a citizen-adopted charter. The Colorado Home Rule Act establishes the procedures to amend that charter. In the case of this protest, the petition submitted to amend the City’s Charter complied with the Colorado Home Rule Act.”

Related lawsuits

CO Oil and Gas Association

Status: Ruled in favor of plaintiffs, overturning Question 300

Immediately after election results were finalized, the Colorado Oil and Gas Association (COGA), which was one of the main opponents to the fracking bans passed in four Colorado cities on November 5, 2013, sued the city of Fort Collins and Lafayette. The lawsuit claimed that the fracking bans passed on the city ballots were illegal because case law and regulations dictate that only the state has right to regulate drilling. A lawsuit was also brought against the fracking ban in Broomfield, but this suit focused on allegedly improper vote-counting procedures used and did not ultimately overturn the fracking ban.

Boulder County District Court Judge Dolores Mallard ruled on August 24, 2014, that Question 300 violated state law and was invalid. Mallard wrote, “Lafayette does not have the authority, in a matter of mixed state and local concern, to negate the authority of the state. It does not have the authority to prohibit what the state authorizes and permits.”

Longmont

On May 2, 2016, the Colorado Supreme Court ruled that state hydraulic fracturing laws preempted local laws. As a result, fracking bans in Longmont and Fort Collins were rendered "invalid and unenforceable." According to Mark Matthews, an attorney for the Colorado Oil and Gas Association, because this issue only involved state laws, the case could not be brought to the Supreme Court of the United States, despite earlier pledges by anti-fracking lawyers and activists to do so. Dan Haley, the president and CEO of the Colorado Oil and Gas Association, called the court's ruling "a win" for Colorado residents. Lauren Petrie, the Rocky Mountain region director with Food and Water Watch, which supported the fracking bans, said, "Today's decision deals a devastating blow not just to Longmont residents, but to all Coloradans."

Three other cities in Colorado banned fracking through the initiative process—Boulder, Broomfield, and Lafayette. On May 19, 2016, Boulder County Commissioners lifted that county's fracking moratorium and imposed a new six-month moratorium to allow officials time to update the county's oil- and gas-related statutes. The five-year moratorium on fracking in Broomfield was suspended during the Longmont trial. The Lafayette fracking ban was invalidated by a judge over voting process issues; the city did not appeal the ruling.

Background

In 2012, Longmont voters approved a citizen-initiated charter amendment to ban hydraulic fracturing. The measure was approved by approximately 60 percent of voters. Two lawsuits were filed against Longmont over this ban, one of which involved the Colorado Oil and Gas Association (COGA) and the state's Colorado Oil and Gas Conservation Commission as plaintiffs. According to a Colorado Open Records Act request, both lawsuits cost the city of Longmont almost $69,000 in legal fees as of March 31, 2013. On July 24, 2014, Boulder District Court Judge Dolores Mallard struck down the ban, finding that the city of Longmont "does not have the authority to prohibit what the state authorizes and permits." Mallard cited Voss v. Lundvall, a 1992 court ruling that gave states, rather than cities, control over oil and gas extraction regulations and bans. The ban, however, remained in effect, as Mallard's ruling was immediately stayed due to an appeal by the ban's supporters.

On September 21, 2015, the Colorado Supreme Court agreed to hear the case. The court stated that it would rule on lawsuits related to fracking bans passed in both Longmont (2012) and Fort Collins (2013). Groups on both sides of the issue—Our Longmont, which supported the city's ban, and the Colorado Oil and Gas Association, which opposed such bans—welcomed the court's decision to make a ruling on the legality of local fracking bans in Colorado.

Similar measures

Local

aot Longmont City Fracking Ban, Question 300 (November 2012)
a Broomfield Five Year Fracking Suspension, Question 300 (November 2013)
aot City of Lafayette "Community Rights Act" Fracking Ban Amendment, Question 300 (November 2013)
a City of Boulder Five Year Fracking Suspension, Question 2H (November 2013)
a City of Fort Collins Five Year Fracking Suspension Initiative, Question 2A (November 2013)
d City of Loveland Two Year Fracking Suspension Initiative (June 2014)

Statewide

Colorado Distribution of Oil and Gas Revenue Initiative (2014)
Colorado Environmental Rights Amendment (2014)
Colorado Local Regulation of Oil and Gas Development Initiative (2014)
Colorado Mandatory Setback of Oil and Gas Wells Amendment (2014)
Colorado Right to Local Self-Government Amendment (2014)
Michigan Fracking Ban Initiative (2014)

• Michigan Fracking Ban Initiative (2016)

See also

• November 5, 2013 ballot measures in Colorado
• Boulder County, Colorado ballot measures

External links

Suggest a link

• Lafayette municipal code and charter
• Boulder County elections office website
• East Boulder County United website (dead link)
• East Boulder County United facebook page
• Lafayette For Energy Choice facebook page
• Leeds School of Business, University of Colorado, "HYDRAULIC FRACTURING BAN The Economic Impact of a Statewide Fracking Ban in Colorado," March 2014

Additional reading

• Daily Camera, "Lafayette hears arguments over fracking ban ballot issue challenge," August 22, 2013
• 9News, "Lafayette's fracking ban tossed," August 28, 2014