Kevin J. Duffy


Hydraulic fracturing enables oil and gas operators to maximize hydrocarbon extraction from unconventional reservoirs. The increasing prevalence of fracturing generates robust debate and review of the environmental and economic impacts of the practice. An unbiased political dialogue of fracturing proves challenging. The technical complexity of the process and the divergent perceptions of local and state decision-makers foment regulatory tension. A division-of authority contest between the state government and home-rule cities ensues. In Colorado, state-level preemption gives courts a tool to invalidate local regulation of oil and gas activities where an operational conflict exists between the state and local law. However, Colorado cities that enjoy "home-rule" status under article XX of the Colorado Constitution possess plenary power to regulate matters of local concern. Zoning and land use, traditionally areas of local concern, could be utilized to effectively regulate fracturing. This Comment proposes that, notwithstanding home-rule plenary power, zoning regulations that de facto regulate oil and gas should be invalidated under the operational preemption test. The ambiguity between a permissible local land-use regulation and an impermissible local regulation of oil and gas needs greater clarity. Through express preemption, the state government can best provide this clarity by assembling the diverse collection of stakeholders required to implement the science-based regulations that fracturing demands.

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