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  • Writer's pictureMario Nicolais

Fracking opinions a study in judicial discipline

The twin fracking opinions handed down by the Colorado Supreme Court illustrate the distorted lens through which most court opinions are reported and received by the public.

Justice Gabriel, the newest member of the court and one generally considered to fall on the liberal side of the judicial spectrum, issued the opinions. In just the second paragraph of the Longmont decision, Justice Gabriel made it clear that, while both sides held sincerely held beliefs over the “vices and virtues” of fracking, the case turned on a “far narrower, albeit no less significant, legal question.”

In the wake of the decisions, reports typically skimmed over the preemption jurisprudence that provided the foundation of the opinion and focused more time and energy on the winners (fracking proponents), the losers (fracking opponents), and who may have been harmed (the voters of both cities). These represent the sexier sells-more-copy angles of the story. Pitting bitter rivals against one another fits nicely within a 140-character tweet. That in turn attracts the attention of both sides.

And it misses the broader, more complex legal underpinnings.

That is a shame because the opinions penned by Justice Gabriel are a wonderful study in judicial constraint, application, and clarification of governing law. Justice Gabriel’s step-by-step analysis in the opinions provide a window into how courts should operate.

After quickly dispensing the background hoopla regarding policy concerns, Justice Gabriel dug directly into the substantive matter of preemption. Recognizing deficiencies in prior case law that led to confusion, Justice Gabriel provides a concise and concrete framework for review. Specifically, he noted that the “question of whether a matter is one of statewide, local, or mixed state and local concern is separate and distinct from the question of whether a conflict between state and local law exists.” He then set forth the standards to be applied, how to assess the interplay between regulatory schemes, and declared that most instances provide a question of facial evaluation of the regulations, not factual inquiry into the effects.

In one paragraph, Justice Gabriel laid out the approach for preemption review in any other circumstance that may present itself, not just the limited scope of fracking rights.

The application of such a framework becomes near mechanical. As any good legal rule should be.

Because the bans effected interests that extended beyond the city lines, the question became one of mixed state and local concern. The interplay consequently leads to further analysis of the type of preemption: express, implicit, or operational. In the end, an operational conflict between the state and the local government – i.e. “by prohibiting fracking and the storage and disposal of fracking waste, Article XVI materially impedes the effectuation of the state’s interest.” To allow the local ban to do wo would render the state regulations meaningless and superfluous.

Finally, Justice Gabriel addressed the challenge of Longmont intervenors asserting an inalienable right to protected against preemption. Finding that the rationale relied upon by the intervenors would apply too broadly – effectively meaning local regulations would always supersede state law.

I don’t know Justice Gabriel and have only appeared before him once that I remember. However, by reputation, he is among the more “liberal” justices. If I had to guess, I believe he probably personally opposes fracking. But you cannot find a trace of that preference in these opinions. That is exactly what we should always seek from our judiciary: an impartial and straightforward legal analysis. As Justice Antonin Scalia said, “The judge who always likes the results he reaches is a bad judge.”

Justice Gabriel should be applauded for these decisions because of the straightforward, disciplined nature inherent in both.

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