CIty of Longmont v. Colo. Oil and Gas Ass’n, along with City of Fort Collins v. Colo. Oil and Gas Ass’n, were decided on May 2nd by the Colorado Supreme Court. At issue, specifically, was if home rule cities could regulate fracking by prohibiting the practice in the jurisdiction. However, like many cases that reach the highest courts, the issue is not truly about fracking, but is instead about when and how State regulation and home rule authority interact.
At its core, this case was written to clarify the state of the law in two regards. The first, is in determining which governmental unit gets to set policy. The second is to look at the preemption doctrines and applications.
In Colorado, there are three types of “concerns”, in this context, specifically state, mixed, and local. When an issue is of local concern, the local home rule municipality will have superior governance. Similarly, if the issue is of state concern, then the state law will prevail. When there is significant state and local concern, the state law will supersede municipal law only if there is a conflict.
The determination of the type of concern has been difficult to track. In some authority there have been six factors. Other authorities have three or five factors. Sometimes, the type of concern has been assumed and determined from there. With these current cases, there are four factors: (1) the need for uniformity, (2) extraterritorial impacts by municipal regulation, (3) who traditionally regulated the issue, and (4) grants of authority by the Colorado Constitution.
As to the preemption and conflict issue, there was clarification given as well. First, there was an admonition to lower courts to be careful in analysis and avoid putting parts of the preemption issue into the type of concern analysis. Second, the Court outlined the three forms of preemption as being express, implied, and operational. As this case focused on operational, that will be explained here.
Operational Conflict is when the “effectuation of a local interest would materially impede or destroy a state interest.” The court then recognized that the typical test of looking to see if the home rule regulation “authorizes what the state statute forbids, or forbids what state statute authorizes” does not always adequately address the situation. This second test is sufficient to determine if the standard is met, but the key is to look at the “interplay between the state and local regulatory schemes” in a “facial evaluation of the respective regulatory schemes.”
This case does not seem to indicate a paradigm shift in the law, the state and local governments have always had to share authority in some way. However, it is another case in a string of cases, many cited by the opinion, limiting the home rule power and in what types of cases home rule power can be exercised. This may be another indication of a shrinking world, where municipalities are less influential.