Energy infrastructure preemption conflicts between state and local governments

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Last updated: November 5, 2021

Ballotpedia covers preemption conflicts between state and local governments in several policy areas. Preemption occurs when law at a higher level of government is used to overrule authority at a lower level. This page summarizes preemption conflicts over natural gas infrastructure policy. To learn more about other preemption conflicts, click here.

Municipal governments across the country have come into conflict with state governments over policies related to natural gas infrastructure. These policies include regulation of gas hookups in new buildings, renewable energy requirements, and fracking.

In June 2021, this page was expanded from fracking preemption conflicts to include energy infrastructure preemption conflicts.

Email [email protected] to notify us of updates or new fracking preemption stories.

Energy infrastructure preemption conflicts overview
Year	State	Summary
2021	Kansas	The Kansas State Legislature passed the Energy Choice Act, which preempted parts of the city of Lawrence's renewable energy transition plan.
2020	Colorado	A Colorado district court upheld a previous Colorado Supreme Court ruling finding a hydraulic fracking ban in the City of Longmont to be preempted by state law.
2020	Arizona	Arizona passed a law preempting municipal natural gas bans in new construction, which preempted parts of the city of Flagstaff's plan to transition to renewable energy.
2019	Pennsylvania	An Allegheny Township zoning board decision to allow fracking in each of the town's zoning districts was challenged by residents in court, with the Pennsylvania Commonwealth Court ultimately upholding the zoning board's decision.
2017	Colorado	Colorado’s Attorney General filed a lawsuit against Boulder County for having a moratorium on new oil and gas development that conflicted with a state law, but the lawsuit was dismissed as the moratorium had expired.
2016	Various	Thirty-three mayors issued a statement seeking greater local control over fracking.
2016	West Virginia	A federal judge struck down a Fayette County fracking waste disposal ban on the grounds that it was preempted by state and federal law.
2016	Louisiana	St. Tammany Parish attempted to block a drilling project using zoning ordinances, but the Louisiana Supreme Court held that the parish’s ordinances were preempted by state oil and gas regulations.
2016	Colorado	The Colorado Supreme Court struck down a five-year moratorium on fracking in Fort Collins and a fracking ban in Longmont since the cities’ fracking regulations were preempted by state law.
2015	Texas	Texas passed an oil and gas preemption bill in response to a Denton ballot measure that would have banned fracking in the city.

2021

Kansas: Legislators pass Energy Choice Act, preempting city of Lawrence's renewable energy transition plan

In 2021, the Kansas Energy Choice Act became law. Gov. Laura Kelly (D) did not sign or veto the legislation, which passed the legislature with a veto-proof majority. The Act states: “A municipality shall not impose any ordinance, resolution, code, rule, provision, standard, permit, plan or any other binding action that prohibits, discriminates against, restricts, limits, impairs, or has the effect thereof, an end use customer's use of a public utility based upon the source of energy to be delivered to such customer.”

The Act preempted parts of a plan passed in March 2021 in Lawrence, Kansas, which set a goal of shifting all community energy use to renewable energy sources by 2035.

Jasmin Moore, the sustainability director for Lawrence and Douglas County, said before the Act’s passage: “It does seem that the legislation […] was intended to prohibit cities like Lawrence from taking steps to reach those goals we set. The goals of Lawrence are pretty aggressive, and that was intentional because of the climate crisis. The city felt this kind of action is needed now.”

Zack Pistora, legislative director for the Kansas Sierra Club, opposed the Act, saying: “using Kansas-based, pollution-free energy resources like wind, solar, energy storage, and efficiency can create jobs, improve health and social equity outcomes, and save residents a lot of money.”

Elizabeth Patton, the Kansas State Director for Americans for Prosperity, supported the Act, saying: “These local bans will ultimately serve as regressive taxes that hurt low- and middle-income consumers and they will exacerbate energy poverty in our state.”

Patrick Vogelsberg, the Government Affairs Director for Kansas Gas Service, said the bill was “needed to make certain that Kansans, households and businesses, continue to have the ability to have choice in regards to which energy source they have.”

2020

Colorado: District court rules against Longmont hydraulic fracking ban

On November 1, 2020, district Judge Judith LaBuda ruled against reinstating a voter-approved hydraulic fracking ban in Longmont. In 2012, voters in Longmont passed Question 300, which stated:

“

It shall hereby be the policy of the City of Longmont that it is prohibited to use hydraulic fracturing to extract oil, gas, or other hydrocarbons within the City of Longmont. In addition, within the City of Longmont, it is prohibited to store in open pits or dispose of solid or liquid wastes created in connection with the hydraulic fracturing process, including but not limited to flowback or produced wastewater and brine.

”

The ban had previously been struck down by the Colorado Supreme Court in 2016. However, in 2019, the Colorado General Assembly passed Senate Bill 19-181, which provided for increased local control over the use of land for fracking as it pertained to its surface effects on communities, health and safety, and the environment. The plaintiffs argued that the passage of SB 19-181 would allow the fracking ban to stand. LaBuda, in her ruling, said:

“

The Court finds that the Oil and Gas Conservation Act and the Commission, under the authority granted to it by the Act, established pervasive rules that evince state control over oil and gas development and production, which includes fracking. The rules demonstrate the state’s interest in the efficient, fair, and safe development of oil and gas resources, which includes the uniform regulation of fracking. This interest remains strong and unchanged even after the enactment of SB 19-181. Article XVI’s fracking ban prevents operators from fracking even if they abide by the requirements of the Act and the Commission’s extensive regulations, impeding the state’s interest in enforcing and protecting coequal and correlative rights of interest owners, preventing of waste, and the producing up to its maximum efficient rate from each pool. Therefore, the Court finds that the provision of Article XVI banning fracking materially impedes the effectuation of the state's interest; thus, Article XVI’s fracking ban is preempted by state law.

”

Arizona: State passes law preempting natural gas bans, parts of a Flagstaff climate plan

On February 21, 2020, Governor Doug Ducey (R) signed HB2686 into law. The bill preempted the local regulation of energy utilities in building construction, saying: “a municipality may not impose a fine, penalty, or other requirement that has the effect of restricting a utility prover’s authority to operate or serve customers.” The law was the first of its kind passed at the state level.

The bill’s sponsor, State Speaker of the House Russell Bowers (R), said: “We’re trying to make sure all of our citizens have [access to] a broad variety of energy sources that they see fit, one of which is natural gas."

HB2686 preempted parts of a proposed 2018 Climate Action and Adaptation Plan in Flagstaff, Arizona, that would have required “zero-net-energy construction for all new residential and commercial buildings by 2040.” Nicole Antonopoulos, the city’s sustainability director, said: “It [HB2686] definitely put a huge hurdle in our plans for promoting electrification and fuel switching. [...] It's a reluctance to work with the community, the state government or federal government to identify solutions to address climate change.”

2019

Pennsylvania: Commonwealth Court rules in favor of Allegheny Township in zoning dispute

A dispute over the Allegheny Township zoning board's decision to allow fracking in each of the town's zoning districts ended with the Supreme Court of Pennsylvania declining to hear an appeal challenging the board's decision in June 2019. The challenge arose from a group of local residents opposed to the construction of a fracking well pad in their area, which had been zoned for R-2 agricultural-residential use. After an unsuccessful appeal before the township zoning board, the group took their case to Westmoreland County court, where a judge ruled in favor of the zoning board. On October 26, 2018, the Pennsylvania Commonwealth Court upheld the county judge's ruling, finding that the role of Pennsylvania's state government was to regulate how fracking was to take place while local governments were responsible for selecting where fracking could take place.

2017

Colorado: Judge dismisses suit against Boulder County

In May 2017, a Boulder County District Court dismissed a lawsuit filed against the county by Colorado Attorney General Cynthia Coffman (R). According to the suit, the county's moratorium on new oil and gas development bucked a 2016 state supreme court ruling preempting local oil and gas bans that conflicted with the Colorado Oil and Gas Conservation Act. The county filed a motion to dismiss the suit on the grounds that the moratorium had expired on May 1, 2017, and District Court Judge Norma Sierra granted the motion.

In its February 14, 2017, statement announcing the suit, Coffman's office said:

“	On January 27, 2016, the Attorney General’s Office put Boulder County on notice that if it did not come into compliance with the law by February 10th, the State would take legal action against the County. The Boulder County Commissioners responded that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development. Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance. It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado. Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.	”
—Cynthia Coffman (2017)

The Boulder County Board of Commissioners issued a response the same day, which said:

“	It’s a sweetheart deal for the oil and gas industry, but a massive waste of Coloradans’ tax dollars for the State to sue us on industry’s behalf, and we are prepared to defend our right to safeguard the health, safety, and wellbeing of our constituents. As we stated when we first responded to the Attorney General’s January 26 letter, Boulder County understands its legal constraints on adopting local bans and lengthy moratoria; however, the current moratorium is of a materially shorter duration and is consistent with Colorado law.	”
—Boulder County Board of Commissioners (2017)

2016

Mayors call for local fracking control

Thirty-three mayors, including Charlotte Mayor Jennifer Roberts (D), Portland Mayor Charlie Hales (D), and Pittsburgh Mayor Bill Peduto (D), issued a statement in June 2016 seeking greater local control over fracking. The statement argued that city residents should be allowed to regulate or prohibit drilling over health and environmental concerns. It said:

“	It is no surprise that a growing number of communities are moving to halt or regulate fracking within their borders. The notion that our communities have the right to govern on issues and activities that threaten public health or the quality of life of their residents has a long tradition in law. This principle is the basis of public health ordinances and local land use rules, including zoning, which often involve trade-offs with property rights and other interests. In light of the foregoing, we believe that all communities should have the right to decide whether, where, and how industrial fracking operations–including not only well pads, but waste disposal facilities and all related infrastructure–happen within their borders. We urge our state and federal leaders to affirm the ability of localities to protect the health and quality of life of residents against the widespread expansion of industrial fracking into their communities. The best policy is to leave decisions over these local impacts to local governments and let the democratic will of their residents and other stakeholders be heard.	”
—Environment America (2016)

West Virginia: Federal judge overturns county fracking waste disposal ban

Federal Judge John Copenhaver struck down Fayette County's fracking waste disposal ban in June 2016, on the grounds that it was preempted by state and federal law. The petroleum company EQT Production Company had filed suit over the ban.

Fayette County Commission President Matt Wender told The Fayette Tribune that the commission was not permitted to testify prior to the ruling. "I'm most disappointed that we cannot present information about the many health concerns about injection wells that have come to the commission's attention," he said. "One real consequence of today's hearing is that it did not allow for public awareness and dialogue about these health concerns."

Louisiana: Supreme court refuses hearing on oil drilling in St. Tammany Parish

In June 2016, the Louisiana Supreme Court voted 4-3 against hearing an appeal of district and circuit court rulings upholding the issuance of a state drilling permit to the New Orleans company Helis Oil & Gas. St. Tammany Parish had attempted to use zoning ordinances to block the Helis project. The lower courts found that the parish's ordinances were preempted by state oil and gas regulations.

St. Tammany Parish filed suit against the Helis project in June 2014 due to concerns that it would pollute the area's water supply and adversely affect property values. The Concerned Citizens of St. Tammany assisted the parish with further litigation.

Colorado: State law supersedes local fracking bans

The Colorado Supreme Court struck down a five-year moratorium on fracking in Fort Collins and a fracking ban in Longmont in May 2016. The court ruled that the cities' fracking regulations were unenforceable because the state has an interest in creating uniform regulations.

Attorneys for the cities had argued that the state's constitution includes an inalienable rights provision under which citizens' rights preempt state law. Energy companies representatives argued that state officials should have the ability to mediate disputes between local officials and fracking operators without the complications of local regulations.

In its ruling on the Longmont ban, which included language similar to the language in the Fort Collins decision, the court said:

“	Applying well-established preemption principles, the supreme court concludes that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within its city limits operationally conflicts with applicable state law. Accordingly, the court holds that Longmont’s fracking ban is preempted by state law and, therefore, is invalid and unenforceable. The court further holds that the inalienable rights provision of the Colorado Constitution does not save the fracking ban from preemption by state law.	”
—Colorado Supreme Court (2016)

2015

Texas: State legislators preempt local bans on fracking

Texas Gov. Greg Abbott (R) signed an oil and gas preemption bill, House Bill 40, on May 18, 2015. The bill was introduced in response to a November 2014 ballot measure banning fracking in Denton. In a press release announcing the signing, Abbott said, "This law ensures that Texas avoids a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city. HB 40 strikes a meaningful and correct balance between local control and preserving the state’s authority to ensure that regulations are even-handed and do not hamper job creation."

The Denton City Council repealed its fracking ban in June 2015. Members of the local chapter of the climate change group Rising Tide North America initiated a recall effort against Denton City Councilman Joey Hawkins over his support for lifting the ban. The recall failed 71 percent to 29 percent in May 2016.

See also

Local Politics	2021 Election Analysis	Preemption conflicts
Municipal government Local courts School boards Local ballot measures Local recalls	Municipal elections, 2021 Local court elections, 2021 School board elections, 2021 Local ballot measure elections, 2021 Political recall efforts, 2021	Coronavirus • Energy infrastructure Firearms • GMOs • Labor LGBT • Marijuana Plastic bags Police department budgets Ridesharing Sanctuary jurisdictions • Soda taxes