Colorado: Debate shows some common ground, many differences on fracking regulation

Oil and gas drilling near schools and homes in Firestone, Colorado. Photo courtesy Shane Davis, Sierra Club, Rocky Mountain Chapter.
Oil and gas drilling near schools and homes in Firestone, Colorado. Photo courtesy Shane Davis, Sierra Club, Rocky Mountain Chapter.

Gov. Hickenlooper, Boulder County Commissioner Elise Jones tackle tough questions in lively Denver session

By Bob Berwyn

FRISCO — Despite a couple of interruptions by hecklers, Monday’s debate between Colorado Governor John Hickenlooper and Boulder County Commissioner Elise Jones showed there may be some common ground for addressing the contentious issue of oil and gas drilling regulations.

Hickenlooper seemed to agree that the state could do more to address citizen concerns about health and quality of life impacts, and said that the venting methane from oil and gas drilling operations is an unacceptable waste.

But the lunchtime debate at the University of Denver’s Sturm College of Law also highlighted some of the conflicting views about the appropriate roles of local and state regulation, as well as larger questions about energy policies. Jones emphasized that Colorado residents want a clean, renewable energy future, while Hickenlooper touted natural gas as the fastest way to cut greenhouse gas emissions and air pollution.

The debate was held in the context of ongoing legal and political tussling over oil and gas drilling regulations. On the legislative side, the Colorado General Assembly is considering a slew of bills that would tighten up the regulatory framework, and in the courts, the state has sued the City of Longmont over its adoption of strict regulations.

Hickenlooper and Jones had differing views of where local authority starts and ends.

The governor said long-established laws make it clear that subsurface mineral estate owners have a fundamental right to access their property.

“We have given them, for more than 100 years, the certainty that they can access those mineral rights,” Hickenlooper said, adding that the legal framework ensures that those resources are developed as a public benefit.

Jones questioned whether that framework benefits the public and said those rights date back to a time when the industry needed state help. Now, the benefits mostly accrue in the form of profits to corporations, she added.

“The costs are localized, the benefits go to private interests,” she said.

“Not sending billions of dollars to foreign dictators … I think that’s a public good,” Hickenlooper shot back. “Inexpensive energy that’s cleaner than traditional energy is an incredible public benefit,”

“People vastly prefer renewable energy over any other energy form. We should be focusing on that … we don’t have the luxury of time. We have to keep our eye on the prize, a fossil fuel-free future,” Jones said, reflecting, in particular, the views of a majority of her Boulder constituents. “Wind and solar don’t use a lot of water, they don’t have emissions.”

Hickenlooper said the switch to natural gas will help Colorado reduce air pollution by 70 to 80 percent and cut down on emissions of heat-trapping greenhouse gases, and said that new regulations are being developed to address methane venting.

Municipal interests

There was even less agreement about the role of local government in regulating the industry. Jones, a long-time environmental activist. believes local governments should have a big role in protecting the health and welfare of citizens.

As a state with a strong legal basis for home rule, towns have the right to regulate all sorts of industrial uses, she explained.

“For the state to tell us we don’t have a role … it’s hard for us to swallow,” she said.

In a previous interview, Jones said that, by passing local regulations, people are sending Gov. Hickenlooper a signal that the state is not doing a good enough job.

“I would like it to be crystal clear that local governments are free to provide stronger protections without being sued by the state,” she said, adding that the state is woefully understaffed when it comes to enforcement; that local governments should be empowered to charge fees to pay for inspectors, and that, in cases of water quality impacts, the “presumptive burden” should be on the oil and gas industry to show that it wasn’t responsible for the pollution.

Numerous bills either pending or waiting to be introduced may address some of those issues, and all of them may be well within the legal parameters laid out by the Colorado Supreme Court, which has ruled that cities and counties can’t adopt outright bans.

“But the court was careful to say that only outright prohibitions are illegal,” said Colorado Municipal League general counsel Geoff Wilson. “With other kinds of regulations … you look to see if there are operational conflicts … if local regulations materially impair the state’s interest,” Wilson said. “We’ve always viewed that as a pretty deferential standard to local interests,” he said, advocating for a nuanced view of regulation that takes local conditions into account.

He also pointed out that, in many cases, the industry has been able to reach agreements with local jurisdictions that result in a contractual agreement rather than a police power exercise.

“As municipalities, our job is to broker a fair balance among land owners … to look at competing land uses at the local level,” he said. “It’s interesting that the state sued longmont rather than the industry … we’re spending thousands of dollars of taxpayer dollars … and the Longmont ordinance doesn’t actually interfere with anybody,” he said, encouraging state lawmakers to explore ways to make the public feel a little more secure, especially in the area of enforcement.

Wilson said the Colorado Municipal League is not actively pursuing any new oil and gas drilling regs, but would consider supporting legislation that “makes more clear our authority to protect public health and safety … “We’re not an enemy of the industry, but we’re not always receptive to industrial land uses in residential zones.

“I’m tired of this drumbeat that local regulations have impacted the industry. We would have seen some effect on production. Instead we’ve seen more and more production, more money,” he said, recalling that a 2008 state rule-making also sparked predictions that the industry was going to leave the state.

Local versus state

Advocates of stronger local regulations have put forth a philosophical bases for their arguments, starting with the basic legal concept that home rule cities and counties have not just the authority, but a responsibility to protect their citizens and regulate land use.

“To me it’s fascinating that all other industries have to comply with local zoning. Why should the oil and gas industry be exempted,” said Boulder City Councilwoman Suzanne Jones. “Why should we have industrial uses in residential areas? I think that communities are very much within their legal rights to protect their citizens and to determine their own futures.

“The reason you’re seeing communities doing this, is, the state isn’t taking good enough care of the people … we have robust local economies that depend on quality of life, and industrial activities undermine that. I have no idea why the governor is trying to elevate this industry above public health,” Jones said, adding that, while Boulder may not be directly threatened by oil and gas development, city residents care deeply about the issue.

“We’re focused on a long-term solution. We’re looking at our energy future and we want to incorporate more renewable energy sooner,” she said.

Colorado has been a leader in clean energy, the tech sector and in innovation, which don’t interfere with the Colorado brand. The drill-baby-drill mentality is driven by simple greed that puts profits ahead public well-being, she said.

“I think what you’re seeing is people standing up and saying this is not the future we choose. It’s not like we don’t have other options,” she concluded.


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