Preemption, simply stated, is when state regulations trump local regulations if a matter is primarily of state interest or of mixed state and local interest.
Colorado case law also states that not even home rule municipalities, which have more local control than statutory cities and towns, may totally prohibit oil and gas drilling.
To attempt to overcome this, Saguache County adopted an "Operational Conflicts Special Exceptions" provision into its new regulations. The Colorado Department of Local Affairs recommends that local governments consider adopting such a provision when drafting new regulations. The operational conflicts provision allows local governments to amend the requirements in a permit when it is determined that there is an operational conflict between the local regulations or permit requirements and the COGCC rules and/or the Colorado Oil and Gas Conservation Act.
This may also be overruled in court.
If you decide fracking is not good for your community, there is new hope
The Community Environmental Legal Defense Fund (CELDF) is helping community groups and municipalities write and adopt laws that assert community rights, including the right to local self-government, the rights of nature, and the subordination of corporate privilege to the rights of the community.
Colorado communities can transition from merely regulating corporate harms to stopping those harms by asserting local, democratic control directly over corporations.
Through grassroots organizing, public education, ordinance drafting, home rule charter campaigns and the provision of legal counsel, the Community Legal Defense Fund works with communities -- with residents, citizens groups, and municipal governments.
Citizens are being told by their local government officers, municipal solicitors, state representatives and regulatory agency personnel that "there's nothing we can do for you; our hands are tied. We can't pass an ordinance banning fracking--every community that has is getting sued!"
It might look that way--but in fact, not a single, rights-based ordinance has been attacked by the drilling corporations.
The communities being sued for their attempts to regulate or prohibit gas drilling and fracking are the ones that adopted non-rights-based ordinances. They base their ordinances on state regulatory law and receive the blessings of municipal lawyers that the ordinances are legal. And when the corporations sue, the laws are stacked on behalf of the corporations: violations of their constitutional and civil rights. The corporations win. The communities lose.
Now local governments can actually protect their citizens. They no longer have to be powerless because of preemption. They can stop trying to write oil and gas regulations they know are insufficient.
It is time to challenge the idea that the State can preempt human and civil rights on behalf of corporatations.
Saguache County Oil & Gas regulations
Community Environmental Legal Defense Fund http://celdf.org/index.php
How fracking is harmful
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