by Lisa Cyriacks
An intensifying battle is brewing nationally over how to balance public demands for a pristine environment and health versus ramped-up production of fossil fuels. Front Range residents have proposed 17 state ballot measures to bolster local control over drilling, short of a statewide ban.
Last November voters in four Colorado towns approved moratoriums on natural gas and oil exploration and hyrdraulic fracturing (fracking). In Boulder, question 2H placing a five-year moratorium passed with 76.8% voting to approve. Voters in Lafayette approved banning new oil and gas wells with no end date, 57.8% to 42.1%. Fifty-five percent of voters in Fort Collins voted to approve a five-year moratorium on fracking and waste products from natural gas and oil and drilling.
Broomfield, CO, is currently in court over controversial election results that initially reported the five-year ban failed by 13 votes. In a recount, the measure passed by 20 votes. In February 2014 a judge upheld the ban, stating that the razor thin outcome was due to a close election, not flaws in the election.
Oil and gas operations in Colorado have grown controversial as drilling rigs have moved closer to communities north of Denver in the last few years.
A ban on the use of fracking by oil and natural gas drillers, approved in 2012 by Longmont voters, has been challenged in court by Colorado Oil and Gas Association and Colorado’s Oil and Gas Conservation Commission. Earlier in 2013, Gov. John Hickenlooper vowed to continue to take legal action against cities and counties in the state that enact fracking bans. At the time, Hickenlooper said the bottom line for the state was that “someone paid money to buy mineral rights . . . and you can’t harvest mineral rights without doing hydraulic fracturing, which I think we’ve demonstrated again and again can be done safely.”
The Colorado Oil and Gas Association responded quickly to the local bans at the end of 2013 by suing Lafayette and Fort Collins, challenging their authority under home rule powers to put in place restrictions on activities that are under the auspices of state control.
The state’s lawsuit filed in 2012 against Longmont’s regulations has not yet been decided. “If the court says Longmont is free to ban fracking . . . that is an earth-shattering reversal by the court,” Suthers said in a recent interview with The Denver Post.
Beginning April 2014, Attorney General John Suthers is hosting a first summit of states’ chief law enforcement officers to address challenges as the expansion outpaces existing rules.
Among experts called for the forum, Colorado School of Mines petroleum geologist Steve Sonnenberg said he’ll describe the scope of the boom. An area northeast of Denver holds 3-5 billion barrels of untapped oil, Sonnenberg said. While natural gas production is slowing, oil production in Colorado has set records—63 million barrels in 2013, up from 49 million in 2012. “Now we’re transforming back to an oil state,” Sonnenberg said.
For Suthers, the key question is just how far cities and towns can go to shield residents under current law, which establishes an overriding state interest in developing oil and gas.
Also currently in the works is a wide-ranging study to analyze health and quality-of-life impacts of oil and gas production which passed in the state House of Representatives. It will then go to the state Senate for consideration. All Democratic representatives voted for the bill, joined by one lone Republican, Rep. Jared Wright (Grand Junction).
House Bill 1297, if signed into law, would direct the Colorado Department of Public Health and Environment to conduct a study, focused on Adams, Arapahoe, Boulder, Broomfield, Larimer, and Weld counties, by January 1, 2017. According to the fiscal note accompanying the bill, the study will cost $598,717.
Voters may be asked in November to consider several ballot issues that would add more restrictions to oil and gas operations—beyond current state regulations.
The 17 proposed ballot measures fall into two groups: one that would amend the constitution to allow tighter local control over oil and gas operations, and another that would require buffer zones statewide up to five times bigger than the 500-foot limit set by the Colorado Oil and Gas Conservation Commission.
If any voter initiative passes and gives locals power to prohibit owners of oil and gas from extracting it, “a huge consideration will be whether this will amount to a ‘taking’ of that property by the government,” Colorado Municipal League attorney Geoff Wilson said. “If that’s the case, a proposal to ban drilling may amount to a proposal that local taxpayers purchase all the affected mineral rights. That could easily make this popular political and policy choice a very expensive one for local taxpayers.”
The amendment to the state constitution, known as the “Right to Local, Self-Government Act”, is sponsored by the Colorado Community Rights Network. The ballot measure would give local governments across the state the power to protect the health and safety of residents by banning or restricting oil and gas drilling and other industrial activities now permitted by state law.
According to community activist and Lafayettte resident Cliff Willmeng, “The measure would address any type of corporate project that a local community would deem to be a threat. That could include hydraulic fracturing (fracking), but would not be limited to it.”
Other activities over which residents should be able to exercise control might include the planting of genetically modified crops, cyanide use in gold mining and the construction of dams, he said.
Once the ballot language has been turned in to the state, a statewide signature collection campaign—86,105 valid signatures would be needed to be presented to Colorado Secretary of State’s office by August—would qualify the measure for the November 2014 ballot.
Willmeng said the intent of the proposed act would be to ensure that state law and corporate interests don’t trump local law when it comes to making decisions about what’s best for the health and wellbeing of a community.
He expects that there will be strong legal challenges to the measure, which would give local communities the power to eliminate the “rights, powers and duties of for-profit business entities” if they usurp or conflict with the “fundamental rights of people, their communities and the natural environment.”
Willmeng said the Colorado Community Rights Network formed last fall and has about 50 members so far, though he expects that number to grow rapidly as the campaign picks up steam.
Draft of language for proposed ballot measure:
“As all political power is vested in and derived from the people, and as all government of right originates from the people, the people have an inherent and inalienable right to local self-government, including in each county, city, town, and any other municipal subdivision or other local community within the State. That right shall include, without limitation: (a) the power to enact local laws recognizing the fundamental rights of people, communities, and the natural environment, and securing those rights using prohibitions and other means; (b) the power to enact local laws for the protection of the health, safety, and welfare of people, their communities, and the natural environment; and (c) the power to enact local laws establishing, defining, altering, or eliminating the rights, powers, and duties of for-profit business entities, operating or seeking to operate in the community, to prevent such rights and powers from usurping or otherwise conflicting with the fundamental rights of people, their communities, and the natural environment.”.