Hickenlooper Declares War: State Will Sue Cities Over “Fracking”

After more than two years of dismaying conservationists with his relentless promotion (and frequent prevarications) in support of the controversial practice of hydraulic fracture drilling for oil and natural gas, all the while proclaiming the practice's safety, Democratic Gov. John Hickenlooper has cut to the bottom line.

And announced that the state will sue any city or town that attempts to ban "fracking" within its borders. CBS4:

Gov. John Hickenlooper says he won’t tolerate cities and towns that ban oil and gas drilling within their borders and he promises to take them to court.

CBS4 Political Specialist Shaun Boyd sat down with the governor, who was blunt. He told Boyd the state will sue any local government that bans hydraulic fracturing, or fracking, the drilling technique that uses high-pressure water and chemicals to extract natural gas.

“Nothing makes me less happy then to have to be in a lawsuit with a municipality,” Hickenlooper said…

“The bottom line is, the way we have a split estate in this part of the world – pretty much all of the western United States — someone paid money to buy mineral rights under that land,” Hickenlooper said. “You can’t harvest the mineral rights without doing hydraulic fracturing, which I think we’ve demonstrated again and again can be done safely.”

The problem: Gov. Hickenlooper has severely damaged his personal credibility to assert fracking is "safe." During recent testimony before a U.S. Senate committee in opposition to greater federal regulation, Hickenlooper again claimed to have "drank fracking fluid"–without disclosing that the product he consumed is not used commercially. Even without that disclosure, Hickenlooper's testimony received widespread coverage, including a ribbing from Comedy Central's Indecision (see: "The Hickenlooper: A Fracking Perfect Valentine's Day Cocktail"). The overwhelming majority of that press coverage simply repeated the line about "drinking frack fluid" with no further details: again, nothing to indicate that people should not head out to their nearest drill pad and gulp down whatever they are actually "fracking" with there. After the story traveled widely enough to raise that question, Hickenlooper attempted to backpedal, admitting belatedly to a small-market Durango reporter, “I don’t think there’s any frack fluid right now that I’m aware of that people are using commercially that you want to drink.”

This logically calls into question why he spent years telling anyone who would listen, without any more detailed explanation or qualifiers, that you can drink fracking fluid. Those questions become deeper when Hickenlooper makes sweeping claims about the safety of "fracking" in pro-industry ads that are refuted by the state's own records of accidents and water contamination all over the state. With the facts established, and regardless of the local press' inexplicable willingness to run cover for him, it's undeniable that Hickenlooper has been willingly and knowingly deceiving Coloradans every time he has told them this lie–which is frequently as Governor.

How, then, cities rightly ask, can his administration be trusted to protect their communities?

Folks, this is not a game. New technologies are bringing energy development to places it has never been before. Split estates are what they are, but the responsibility of government to protect its citizens' health and welfare matters at least as much. Based on Hickenlooper's own questionable words, and the questionable actions of state regulators in his administration, what we have here are communities making a choice–to challenge what they consider to be inadequate protection from the state, to not risk their health and safety with this administration.

Despite his folksy charm and army of spin doctors, Hickenlooper has nothing with which to reassure them. And now, in the hardest test of his vaunted popularity yet, the charm offensive is about to lose its charm.

30 Community Comments, Facebook Comments

  1. If I had any trust that Hickenlooper was actually working to protect Colorado citizen's health and welfare, then I would not be as worried about him asserting state primacy over O&G rulemaking.  Unfortunatly, he has shown himself to be biased and punitive, and I have zero trust that he will do what is best for Colorado.

    We need our legislators to pass state laws which allow for local citizens to have a voice in what industrial activites are performed next to them. And we probably need it with veto-proof majorities, sadly.

  2. BlueCat says:

    Looks like the "aw shucks" era is over.  This is pretty naked, entirely non-soft and cuddly, sweet or goofy aggression. I'm not entirely sure he'd win a suit against a municipality anyway just because "someone owns the mineral rights under that land" and fracking is the only way to harvest it. What if the only way is too dangerous to be tolerated?

    I'm no lawyer but it seems to me that those who bought the mineral rights took a risk in the first place. They gambled that they would find and be able to profit from those minerals. That's hardly something guaranteed to pan out. 

    If a municipality can show in court that there is significant risk of serious harm from what Hick says is the only process through which those minerals can be accessed based on solid evidence then wouldn't the owners of the mineral rights just have to eat their investment? It happens all the time .  Not every business venture succeeds, after all.

    What do our lawyers think?

    Naturally, Hick gave up any personal credibility on the safety issue by his repeated misleading claims about the safety of fracking fluid since, in each instance, he was talking only about fracking fluid which is not being used while leaving that most salient fact out of  every repetition because, had he been honest about that, it would not have supported his contention that the fluid that is used in the fracking process is safe to drink. He is now a known repeat offending liar by omission.  Sad to see the old goofy nice guy Hick image destroyed but there it is.

    • roccoprahn says:

      That's a great rundown.

      I'm not a professional engineer, far from it. Or a geologist. That's up front.

      But there are times when you know something is not right.

      I have two points.

      First, the documented cases of people getting sick as a direct result of gas escaping into the potable and non potable water from fracking are there to see. period. The cases of the fluid itself being toxic are documented. We've all been privy to this data, and it's not just urban legend. Period. That's a danger to public health. Our animals that we harvest are subjected to it. Our crops are as well. Wildlife is exposed to it.

      Cities and towns are fighting it because they see it.

      Hickenlooper's "pretty naked, entirely non soft and cuddly, sweet or goofy aggression" is a thunder clap to me. I've allways seen him as wishy washy, kind of a chamber of commerce enabler, a person that's "not gonna be there for ya" type of friend. Better than 1Y, lesser of 2 evils, but certainly not a strong Democrat. But this is different.

      Fracking fluid is deadly. We know that. And what's perplexing, disturbing, and frightening, is that he has to know that. He's the Governor, and he's siding against the will of the people he is supposed to represent. His is an act of outright betrayal.

      And this shouldn't even go to court! It's pretty obvious the industry's lying about the danger and that people are wise to it.

      Secondly, I agree entirely with Bluecat. There's no guarantee you'll be profitible in this business going in, and there should be a limit on how much the Government will subsidize the drilling industry. But having said that, can't the industry extract the gas without fracking? And still turn a huge profit? What are they going to do, leave? I don't think so. The gas is here. They're big boys, they can turn a profit with less deadly technology, it seems to me.

      Duke, am I wrong? You're not going to hurt my feelings if you tell me I'm all wet. If we can't extract it profitibly and safely, what were the means before they started fracking.

      Again, I'm uneducated in the means and technology. I'm only an "expert" 'cause I saw "Gasland" and have personal knowledge of what fracking does through friends victimized by it, but this doesn't smell right to me.

      • The realistThe realist says:

        I asked a gas drilling industry person last year how much of western Colorado's natural gas would be developed without fracking, and he replied, "none." No doubt Duke and others can provide a more comprehensive response on this issue.

         

      • Duke CoxDuke Cox says:

        Duke, am I wrong? You're not going to hurt my feelings if you tell me I'm all wet. If we can't extract it profitibly and safely, what were the means before they started fracking.

        Most of the easy resource has already been taken out of the ground, and the industry engineers will tell you that "tight sand" and "shale" extraction can't be profitable without fracking to maximize production. I don't personally know if that is true, but the message is pretty uniform throughout the industry.

        Can you get gas out of a well without fracking?…Yes, but not much.

        The problem is the equation…do we poison our air and water, subsidize an industry to the tune of billions per year, and put peoples lives and health at risk in order to produce a fuel, for which we actually have a substitute? Hick says yes…I say no.

        All of the funds we have invested in harvesting "unconventional " fossil fuel could have been much better spent developing solar and wind energy to meet our needs. Biofuel is another option, but this government has NEVER put any serious effort into it except to subsidize Con-Agra and Cargill to make ethanol…a very bad idea.

        Gotta go…more later.

         

  3. Duke CoxDuke Cox says:

    “So you’ll go around the state and sue every city and county that passes a ban?” Boyd asked Hickenlooper.

    “We have to, we have no choice,” he responded.

    This is the part that really pisses me off…of course he has a fucking choice…and he has made it. He has chosen to do the bidding of his oily benefactors. The guys he hangs with.

    Hick has abandoned the people of Colorado. He gets his marching papers from COGA and the CPA and it has now become clear to anyone that he has fully earned the "Frackenlooper" moniker I gave him last year.

    Morgan Carroll for Governor…no fooling….time to get the campaign started.

     

     

  4. AristotleAristotle says:

    Well, that's it. I'm not donating to his next campaign. There's little else I can do, especially since it's unlikely he'll face a primary challenge and any Republican he faces will be just as much on O&G's side instead of the people's. At least he'll do the right thing on most other important issues, but this is too much for me to support with my dime.

    I wonder what kind of childish post this will inspire ArapaGOrP to write? If he's not still focused on shoring up support for his good friend Franklin Sain, that is.

    • The realistThe realist says:

      Is he our next Ben Nighthorse Campbell?  In other words, is Hickenlooper next year's Republican candidate for Governor?  Or does he just change parties after Dems get him re-elected?

       

      • Gray in Mountains says:

        If he did that now he'd imediately jump to the top in R Pres sweepstakes

        • The realistThe realist says:

          I agree – no real competition among the R's. Wonder if he's looking at it from that angle. Ambitious without question.

        • AristotleAristotle says:

          The party that's currently trying to find a way to vomit out Chris Christie? Don't count on it.

        • BlueCat says:

          He'd never get through a GOP primary.  Remember, he may be a DINO to Dems but only because what he really is is an almost extinct kind of Republican.  He's nowhere near right enough to enjoy success as a contemporary Republican. He won't get far as either a Democratic or Republican hopeful for a presidential run. 

          We're probably stuck with him, as Ari notes, for a second term as Governor because a Republican alternative would be worse and no Democrat as strong as Hick is to avoid the risk of a much worse GOP Governor is available.

          Sorry Morgan Carroll fans.  Things could change but as of now I don't see majorities in red municipalities who are ticked at Hick voting for a Dem like Carroll.  A Dem alternative would have to be somebody with broader appeal and higher name rec. and a primary could leave the newcomer pretty bloodied in the process of tossing Hick, even if that could be accomplished.

          One thing is for sure.  Those of us who thought Hick was OK on most issues and were willing to actively support him as the kind of D who wins statewide in Colorado are never going to view him in even that much of a  positive light again. So much for his cute positive campaigning.  What we're seeing now is the real, push coming to shove Hick and he isn't  the least bit aw shucks cute..

           

      • AristotleAristotle says:

        I can't foresee Hick defecting at this time. Given the state of the Republican Party, where popular figures like Chris Christie face the wrath of teabaggers for sins like accepting Obamacare's medicaid expansion, it would be foolish for a centrist to defect into that environment. It's important to keep in mind that he's fully taking the correct position on many other issues, like guns and same sex marriage. Will the party of Brophy, Shultheis, Szabo and Wright welcome such a figure?

        • Curmudgeon says:

          They'd never take him. Sure, he's a bought-out stooge, but he's a bought-out Democrat stooge. It'd take something like a tramuatic injury to the brain to make him Szabo/Wright material.

          • AristotleAristotle says:

            Here's the funny thing, Curmudgeon – I don't believe Hick is a bought-out stooge at all. Remember, he came to Colorado 30 years ago as an O&G man. That's his pre-brewing-redeveloping-and-politics profession.

            Hick has great charm which has been key to his success in politic. But I think that he actually sticks up for what he believes. The "drinking fracking fluid" thing was disingenuous, and he's probably being willfully blind to the dangers and environmental wreckage he's defending, but I think he actually believes that it's the right thing. He's demonstrating an atypical degree of passion here, something you don't see with most elected shills.

            • BlueCat says:

              My problem is that the whole fracking cocktail thing was so dishonest and purposefully deceptive.  If he wants to defend fracking, fine.  But don't use something as evidence when it's clearly not.

              Over and over he sought to convince people of the safety of one thing by telling a cute story about how he drank something that he knew perfectly well was something else.  I don't appreciate that kind of naked deception  whether or not it's to support something in which he believes.

              He may not be bought and paid for, he may be a sincere believer, but he certainly isn't honest or to be trusted. He  threw away his good guy reputation and credibility with both hands. You don't get those back so easily. 

              I have yet to see anything approaching a sufficient mea culpa from him either. He'd have to take out ads to explain that if anyone thinks his little cocktail story proves anything they are mistaken, he's sorry for  intentionally misleading the public to make a point, even one he believes in, and he knows that what he perpetrated on the public was a hoax for me to even begin to consider thinking about trusting a word out of his mouth again. Still probably wouldn't.

        • Gray in Mountains says:

          I agree Ari, very unlikely

  5. The realistThe realist says:

    Hickenlooper is wrong in so many ways on this one, as noted above.  But one of his largest errors is this: Colorado has a long history of being a local control state.  By law, land use planning through zoning regulations, local development codes and other measures is a function of local government, not state government.  Some of us have been around long enough to remember Governor Lamm's short-lived attempt at "human settlement" policies, which were designed to have the state direct where growth and development would take place. They were shot down quickly.  A current example is the years-long battle between the state and counties for the right to run the child protection and social services system.  Despite a growing recognition that the diverse approach to child protection around the state may lead to child fatalities and children living in dangerous situations, counties continue to win the political battle over who will run social services (hint: it's not the state).

    Local responsibility and authority for land use decisions means the Governor cannot by Executive Order or other executive direction take away the power of local government to determine how land is used within their jurisdiction.  It is particularly offensive to me that his statement is specifically about cities and towns – it's one thing to consider the appropriateness of the industrial activity of fracking in remote unincorporated areas of a county, but for him to say that cities and towns have to bow down to industry and allow this activity everywhere within their boundaries is beyond understanding. 

    Not only is the charm gone (though for some of us it was never there to begin with), but so is much of this state's respect for their Governor. 

     

    • Early WormEarly Worm says:

      I appreciate your analysis. In this instance, what is the State's overriding interest in interfering with local control? If I understand correctly, HIckenlooper is threatening to sue in order to protect property rights. While he may or may not succeed in that mission, it appears to be a strange place for the state to expend its resources. If a private property owner (including an owner of a mineral interest) believes that its property interests are improperly taken away or impinged by local regulation, the property owner has recourse, both administratively and judicially. If I give Hickenlooper the benefit of the doubt, that he truly believes banning fracking is an overreach by the localities, why does the state have to get involved.  As pointed out in the original post, it is ultimately a health and safety versus property rights issue.  Reasonable people can disagree, but there is no reason the biggest bully on the block (the State of Colorado) has to pick sides. 

  6. Gray in Mountains says:

    Gov. "Lets agree on the facts" or I'll sue your ass

  7. allyncooper says:

    The issue of fracking notwithstanding, and I've said it before on here, Hick is a corporatist who will follow the money, plain and simple.

    He was put into the mayors office by Denver corporate interests. He walked into the governors office due to the incompetance of the opposition party not having to answer to anyone but his corporate masters.

    He threw the Occupy protesters out of City Park and had them arrested, then a few days later was the speaker at the Colorado Mortgage Bankers Assn. in Colorado Springs. ( Nice bunch of people those fellows are).

    I didn't vote for him, left my ballot blank on that office. No regrets at all.

  8. ArapaGOPArapaGOP says:

    As Governor, Hickenlooper is obligated to defend state law. If you don't like that, change the law. What I don't understand is how attacking your fellow Democrat on an issue he is moderate on will help you get his support for gun grabs and tax hikes.

    It's like you're driving Hickenlooper into the arms of the GOP. Thanks! We will take him.

    • Gray in Mountains says:

      cabbage-vegetable

    • Duke CoxDuke Cox says:

      The surest indictment of Gov. Frackenlooper is your endorsement, agop.

       

      As Governor, Hickenlooper is obligated to defend state law.

      which state law is it that says local governments can't decide on land use policies? Have you forgotten the Gunnison case?  I want you to tell me the specific law Fort Collins is breaking..show your work..

      and to Early Worms point…

      As pointed out in the original post, it is ultimately a health and safety versus property rights issue.

      I tend to see it also as a property rights versus property rights issue.

      Ken Wonstolen (lead counsel for COGA), during a previous debate on regulating access once said," the State of Colorado has no business taking value from the mineral estate, and giving it to the surface estate". In other words, his contention was that by restricting access to minerals in any way, the surface estate was "taking" value (lost income) from mineral owners.

      If that is true, then it should also be true that allowing the mineral estate to destroy surface value through degradation of property value, should not be the business of the state. In fact, the state should see to it that the playing field is level by giving equal standing to both sets of rights and guiding disputes to an equitable resolution. However, that isn't the case.

      As EW also points out, both parties have access to relief through the courts. The problem for surface owners, including local governments, is they seldom have the assets with which to wage legal war against one of the worlds'  wealthiest, most powerful industries.The laws have been written, mostly by industry lawyers like Wonstolen, to give the mineral estate trump cards to play whenever they need them.

      Now Governor Frackenlooper wants to deal them all the aces by forcing their opponents into court.

       

      • Gray in Mountains says:

        I have a hunch that some counties are going to be reviewing their 1041 authority. I'm sure you know more about this than I, Duke. But, 1041 authority gives broad power to counties to protect water. They do have to spell out their concerns but this is authority granted to counties by the state. Given that O&G are building retention ponds to store contaminated fracking water I think counties can likely govern those.

        • Duke CoxDuke Cox says:

           retention ponds to store contaminated fracking water I think counties can likely govern those.

          Actually, I am not sure of the current status of wastewater regulations…I think Twitty or ardy will have a better handle on that issue. My recollection is that some authority was given to the state on that,  back when J. Penry was still just a senator,  and the counties were cut out of that deal.

          My memory of it is fuzzy….

    • AristotleAristotle says:

      ROFLMAOPIMP….

      "We'll take him!" Only because your party is so devoid of appealing, non-batshit crazy politicians that a pro-LGBT equality, pro-Obamacare, pro-gun control politician would be your only chance at winning any major statewide race. (Did I mention that he's pro gun control, something you perjure as "gun grabbing" in this very post?

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