A Legal Opinion on a Fracking Moratorium

Lawyer and health and safety advocate Kate Merlin shares her legal opinion on whether or not the State of Colorado can legally impose a moratorium on new drilling permits. She writes this opinion as a dissenting voice to what many oil and gas operators’ attorneys are telling our legislators.

Can the Colorado Legislature Impose a Moratorium on New Drilling Permits?

Answer: Yes. Moratoria can be called by legislative action and frequently have been. See Katheryn Watts, Regulatory Moratoria, 61 DUKE L. R. 1882 (2012).   The Colorado Legislature has the sole authority to reform the Oil and Gas Conservation Act. There are no limits or prerequisites to legislative action. The Colorado Legislature could abolish the Oil and Gas Conservation Commission or place a complete ban on fossil fuel development tomorrow if it wanted to.  

I. Legislative Branch Authority to Enact Moratoria 
Administrative agencies are created by the Legislative Branch but exist within the Executive Branch. Moratoria may be considered a direction to an agency, which would intuitively seem to limit their enactment to the Executive Branch. However, moratoria have been enacted by both executive and legislative actions at both the state and federal level.  
In fact, moratoria by executive actions have been criticized as intrusions on Legislative Branch authority to create, empower, and direct administrative agencies. A 2011 ruling from the Supreme Court of Florida stated that an Executive Branch moratorium raised serious concerns about separation of powers. See id. (citing Whiley v. Scott, No. SC11–592, 2011 WL 3568804, at *5 (Fla. Aug. 16, 2011) (per curiam) (finding an executive-ordered rulemaking suspension in Florida to be improper).  

II. Finding a Solution to Colorado’s Residential Fracking Crisis  A moratorium on new permits would provide temporary relief to many communities currently facing the imminent threat of being fracked. However it is not a long term solution, and it is far from the only option available to the General Assembly.   
Colorado’s oil and gas industry has been building larger and larger well pads from which to conduct multi-well operations and has been bringing them closer and closer to some of Colorado’s more densely populated regions. It has significantly worsened our ground level ozone problems and threatens to undermine Colorado’s commitment to a clean energy transition.   
The recent ruling in the Martinez v. COGCC case held that the agency that it must foster the development of oil and gas resources, taking steps to prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, only after taking into consideration cost effectiveness and feasibility. This is not enough protection from an industry that experiences 18 fires or explosions per year in Colorado.