Local Control Special Session Officially Dead; Voters To Decide

Photo courtesy Rep. Jared Polis

Photo courtesy Rep. Jared Polis

As 9NEWS' Brandon Rittiman reports, Gov. John Hickenlooper is giving up on the idea of a special session of the legislature this year to pass legislation giving local communities greater control over oil and gas drilling. That means two measures supported by Rep. Jared Polis to increase setbacks from drilling and establish an "environmental bill of rights" for Coloradans, are likely a go for this November's ballot:

Talks aimed at brokering a compromise to allow increased local control over oil and gas drilling operations have failed, Gov. John Hickenlooper's (D-Colorado) office reported Wednesday.

The governor's office says there will be no special session – as Hickenlooper had hoped – to pass a compromise law on fracking.

"Despite our best efforts and those of other willing partners," the governor said in a written statement. "We have not been able to secure the broader stakeholder support necessary to pass bipartisan legislation in a special session."

That news all but ensures Colorado voters will have the opportunity to weigh in with a statewide vote on fracking this year, a follow-up to local ballot questions which have halted the practice in four Front Range communities.

With the special session now dead, as many observers expected, Sen. Mark Udall was quick to announce his opposition to the ballot measures:

"Fracking can be done safely and responsibly," Udall wrote shortly after the governor's announcement. "I believe that Colorado can and must do better, which is why I oppose these one-size-fits-all restrictions."

Undaunted, Rep. Polis announces he is moving ahead:

“I have said from the beginning of this debate that my one goal is to find a solution that will allow my constituents to live safely in their homes, free from the fear of declining property values or unnecessary health risks, but also that will allow our state to continue to benefit from the oil and gas boom that brings jobs and increased energy security,” Polis said.

“I stand by this goal, I am confident that the majority of Coloradoans share this goal, and I am committed to continuing to work to protect our Colorado values.”

FOX 31's Eli Stokols reports that the American Petroleum Institute, which plans to spend a great deal of money fighting these initiatives, hardened opposition among Republicans and the oil and gas industry against a compromise with a poll indicating they can beat the ballot measures. On the other side, proponents have polling that says the measures can pass–even after respondents hear the industry's arguments against the measures.

Stokols speculates once again about the measures "potentially jeopardizing the reelection of Hickenlooper and Sen. Mark Udall — and, by extension, Democratic control of the senate." As we've said previously, that is a dubious suggestion at best. We also don't believe that high-profile Democrats steering clear of these initiatives hurt either the initiatives or their re-election campaigns–there's a lot more driving those campaigns than this one issue, and by disavowing the initiatives early, there's nothing to use against Udall or Hickenlooper even if they do go badly. As for Rep. Polis? The FOX 31 story a week ago, trying to cast CD-2 Republican candidate George Leing as a credible opponent–which even most Democrats opposed to Polis on this issue found laughable–makes it pretty clear he doesn't have much to worry about. That said, we expect the industry will do whatever they can to extract a cost from Polis for his "impertinence."

In November, all of these assumptions will meet their ultimate test–and somebody's going to be wrong.

60 Community Comments, Facebook Comments

  1. gertie97 says:

    What a mess. If they pass, the takings issue will be tied up in the courts for years.

     

    • mamajama55mamajama55 says:

      So I had to look up "takings", and found: "When the government acquires private property and fails to compensate an owner fairly."

      When I look in the language of 88 and 89, I'm not seeing anything which allows government to acquire private property, or indeed any mention of compensation to anyone.  89 merely states a) that  clean air, water,  are environmental "commons" and b) that where there is a conflict between local and state environmental regulations, that the more restrictive regulation governs.

      I know that other proposed amendments had specific "takings" language,(they specifically stated that there would be no compensation to mineral rights holders because it wasn't a "taking"), but they didn't make it through the process.

      So please  explain why you think "takings" will be such a mess if these pass.

       

      • ct says:

        The right always screams 'takings' about any regulation on private property.  Can't build the toxic waste dump and RV park you have long dreamt about in that old brown field you own next to the Kiddie Zoo?  "GubMint Takings By Gum!"

        The court doesn't often agree. This situation is a bit different, but still not a 'taking'  unless a locality just outright prohibits extraction of the mineral–exculding a particular technology, even a very useful one, is a differnt matter.  [ << THIS IS NOT LEGAL ADVICE (because I am not a lawyer, thank god) ] Still, I am sure the court and probably a few, will get to weigh in on that question as well.     

      • ParkHill says:

        Whenever I hear about unlawful takings, it makes me wonder about unlawful "givings". You know, when the government does something to increase the property value of a developer. For example, creating a regulation to increase the density of oil wells, and reduce the property setback…

      • gertie97 says:

        Mama, I'm not a lawyer, nor do I play one on teevee. I didn't stay in a Holiday Inn Express last night. I'm just saying that mineral rights holders who can't cash in might feel agrieved and hire a lawyer to muck things up.

        I fail to see why I owe you an explanation.

      • Andrew Carnegie says:

        MJ,  With the caveat that there is much uncertainty, a taking does not need to be the government acquiring property.  They can also "take" the property depending on the severity of the restrictions they place on the owner.  The focus is not just the benefit to the government, but can be the severity of the detriment to the owner.

        • ct says:

          As I noted, unless a local jurisdiction removes all future ability to ever develop a mineral it is hard to see how prohibiting a particular technology, albeit a useful one, is a 'taking.'  The fancy top-dollar yes-its-billable lawyers, of course, will argue otherwise.  

          Government regulation of a property, through zoning laws or other administrative rules, on the other hand, is not generally considered to be taking property. However, if a government regulation leaves the owner with no economically viable use of his or her property, then it will be considered a taking. 

          This is a way for lawyers to muck things up, as noted above, or below, in this thread.  

          My client would have made a bazillion bucks had you not required his rig be moved a further 1500 feet, thus you must pay up!

           

        • mamajama55mamajama55 says:

          So if 88 and 89 pass, mineral rights owners could yell that their projected gas harvest profits have been "taken" by the local government, and take the local gov to court. But…..89 is only about "new" oil and gas development setbacks. So it's hard to see how a O&G developer could argue that prohibiting or limiting new development is a taking.

          And 89 merely says that the most restrictive regulation of local or state regs governs the O&G.

          So when local communities regulate more strictly than the state does, they understand that they could be sued by the O&G companies, and will presumably regulate carefully.  Or if the Gov's  Grinchy heart grows 3 sizes and the state regulates more strictly than locals, the O&G Cos  could sue the state.

          And there would probably be an injunction or stay on fracking while "Who's the baddest regulator" is sorted out.

          I guess that's a risk worth taking. It's better than the current O&G friendly environment, where they pollute at will, thumb their noses at the underfunded state regulators, and pay little taxes in proportion to the harm that they do to public health. Thanks for 'splainin'.

          I think maybe Polis knows what he's doing with these.

          • ct says:

            It will the cause for lots of lawyering, but what isn't in this nation? 

            Fracking bans–despite the propensity for conflation among the oil and gas flacks and Texans–are but one outcome of local control, which is no longer really on the ballot btw, we are now talking setbacks and an 'environmental bill of rights' (which itself will just be a tool for further lawyering and–hopefully–renewed citizen challenge/accountability) so its not even a 'threaten fracking ban' in some municipalities any longer, but an increased distance and noting in the Constituion that we have a right to clean air and water and aliveable environment.  So of course the oilies will lie shamelesssy and invoke little old ladies having their protery 'taken' from them.  They play better than Texas and Oklahoma billionaires.  

        • langelomisteriosolangelomisterioso says:

          AC- I note it's not part of your calculations, nor probably those of the O&G people, but how about the "taking" of the rights of people to clean water and air? That's pretty severe.

          • Andrew Carnegie says:

            L, The law deals with those as public rights which are not actionable by those whose rights are diminished.  Classic case is you call police and they fail to come to your aid.  Absent some type of special relationship or circumstances, you have no claim against police for failing to come to your aid even if you could show that had they acted reasonably they could have prevented your harm.

            You could potentially sue the individual or entity that caused you personal damages, but the public would not be on the hook.

            • mamajama55mamajama55 says:

              But I think that the language in 89 establishes environmental health as a common right, not a special right. It will create precedent in state law to overtly consider public health outcomes as factors in environmental regulation.

              Thus, passing 89 would undercut the industry (and the Governor's) assertions that only economic factors (which were inflated) should be considered in promoting the public good.

              As others have commented, there will be lawsuits challenging this from industry and environmental points of view. These initiatives are merely a starting point.

              • Progressicat says:

                What AC talked about still stands.  If we, as a society, haven't decided to regulate conduct that affects our air and water, then we have to live with the results.  In essence, your "right" to clean air only exists inasmuch as we've chosen to enforce it.

                Having said that, though, there is a mechanism for you to show particular harm (and this would replace regulation if Libertarians had their way).  You can sue another party under the laws of trespass (a physical intrusion onto your land) or nuisance.  Nuisance occurs when one landowner's unreasonable use of their property harms another's use of theirs.  This could be noise, odors, vibrations, or pollution of air or water.  We regulate so that (1) millions of people don't have to do this and (2) people who don't have the resources to sue don't just have to eat it.

                • Duke CoxDuke Cox says:

                  Courts across the country are considering this issue, and it isn't looking good for the industry…

                  • Progressicat says:

                    Hey, Duke.  I'm sorry, but I'm not clear on what you mean by "courts are considering this issue."  Do you mean they are handing down rulings on nuisance suits that favor people that favor plaintffs or something else?

                    • Duke CoxDuke Cox says:

                      That is exactly what I mean. I didn't cite a source because I couldn't remember where I read it .

                      I figured someone else will have seen the article that discussed a growing number of courts at various levels that are siding with plaintiffs in nuisance suits against the influx of invasive industry.

                      I remember an attorney friend of mine telling me quite a while ago that this was the Achilles heel the OIly Boys have feared would be exposed. If this is a trend, truly, the boys at Exxon/Mobile are in trouble.

                    • Duke CoxDuke Cox says:

                      Oily Boys, that would be…

                    • Duke CoxDuke Cox says:

                       

                       

                       

                       

                      Here is part of the story from E&E…I got it by e-mail, so I didn't get the link…

                       

                      Age-old legal tool poses modern threat for oil and gas

                      Ellen M. Gilmer, E&E reporter

                      Published: Wednesday, July 16, 2014

                       

                      First in a series on the changing landscape of oil and gas law.

                      When a Texas jury handed down a $3 million verdict this year for a family affected by natural gas drilling, Dan Raichel saw a pattern coming into focus.

                      Environmentalists had for years sought to slow the breakneck pace of shale development, but sophisticated attempts to challenge regulations or prove contamination had fallen short. And yet, down in Texas, a driller was thwarted by something as simple as nuisance law.

                      The case centered on Bob and Lisa Parr, who lived atop the Barnett Shale and said they suffered health problems from the air emissions of nearby well sites. The jury found that the emissions disturbed the Parrs' property and constituted a private nuisance (EnergyWire, June 16).

                      "Nuisance affects the whole fracking debate in a lot of ways," said Raichel, an attorney for the Natural Resources Defense Council. "In a colloquial sense, it's pretty clear that fracking is a nuisance in a lot of these communities."

                      In a legal sense, nuisance claims cropping up around the country may prove surprisingly effective at reeling in development. The high-dollar Texas verdict — which dealt not specifically with fracking but with broader oil and gas operations — serves as a harbinger of a very litigious future.

                    • Duke CoxDuke Cox says:

                      Thanks, Ralphie

      • Progressicat says:

        MJ55,

        A "taking" refers to the government's right to exercise eminent domain, the taking (there it is!) of private property for public use, as enshrined in our beloved Constitution in Am5,  The kind of taking we're most familiar with is when the government comes to a set of farmers and says, "we're going to take part of your land to build a freeway."  They pay the farmers, the farmers sue for more money, and everyone is terribly unhappy, but a new freeway exists.

        What we're talking about in this case, however, is what's called a "regulatory taking" (I like to call them "effective takings").  That can happen when a government action has the effect of taking private property, or destroying its value, or making it unsuitable for use by the owner.  It's important, though, to note that not all instances where these things happen are takings.  The government has what is called police power, which is the power to regulate to ensure the safety and welfare of its citizens.  The balancing between the police power and private property rights is where a regulatory taking comes in.

        Zoning laws, which determine what folks can do with their property, are pretty much right in this wheelhouse.  The government has an interest in not putting a fertilizer factory next to an elementary school (i.e. unexploded children).  Zoning to prevent that may reduce the “best and highest use” of the manufacturer’s land, but it is not a taking.  It might be a regulatory taking if I bought a piece of land zoned for retail business, invested my money in getting ready to build my store, and then the city rezoned that land to residential.  The rezoning would cause the value of the land to drop.

        There are some other bits and pieces to all this, but that’s the gist.

        The reason why an increased setback might be considered a taking is that it could prevent a subsurface mineral owner from fully exploiting the resources he or she owns.  There would be a whole lot of lawyering around whether it was or not, though, and it could go either way (some setback is obviously OK, but is this particular one?).  Mostly it would revolve around whether the state exceeded the limits of its police power with the particular setback enforced.

        • notaskinnycooknotaskinnycook says:

          I can't figure out why the O&G companies are so worried about the setbacks. Those are restrictions on where the well pad can go, aren't they? My understanding of fracking is that the drilling can go miles horizontally from the well-head so why does it need to be near anything people object to (schools, hospitals, homes)? It seeems like they could set up the pad in the middle of nowhere and slurp out just as much gas and oil. 

  2. VoyageurVoyageur says:

    Well, with any luck, these can be defeated.  My only fear is that the fight against such anti-business measures may spillover to hurt Democrats.

     

    • bullshit!bullshit! says:

      How do I get on COGA's talking point list?

      • Progressicat says:

        While I'd hardly say these are anti-business measures– I'd call them measures to control the industrialization of residential neighborhoods– believing they're a bad idea doesn't require drinking the Kool-Aid (or the fracking fluid).  This is an issue that crosses party lines with suburban Republicans in places like Loveland and DougCo wanting wells out of their subdivisions, as well as environmental Dems for all their reasons.  Urban folks may be less concerned because even a 100 foot setback is enough to stop fracking almost everywhere in a built-up city, and others are generally OK with extraction when it isn't obviously detrimental (like some coal mining).

        • horseshit GOP front grouphorseshit GOP front group says:

          Hell Progressicat, even the CEO of Exxon, Rex Tillerson, dosen't want fracking too close to his home.  I would hardly regard him as anti business or anti fracking !

      • Ralphie says:

        Send an email to Penry.  I'm sure he can fit you in.

    • Diogenesdemar says:

      Yep. This is not good news for Hickenfrackerdrinker.  Doesn't matter what your politics are here, it's hard for him to claim "leadership" in any direction.  

      Live by the oily, die by the oily .. . 

  3. ModeratusModeratus says:

    Democrats are running scared from Polis and his war on Colorado's economy. All Stokols is doing is reporting the facts.

    Polis will destroy everything he has built in this state if he goes through with these initiatives.

  4. ct says:

    First they came for my tire pile, then they cam for my septic tank.  As has been steadfastly shown on the intertubz everywhere, zonig is nothing more than a camel's nose through an already opened barn door with the tent flaps not shut!  

    And that means trouble, blue-helmeted trouble, with a half-naked Putin leading the charge and Obama bowing down to welcome him.  Its not just a war on the Colorado economy that will lead to the total collapse of all that is good and just, it is a war on our very humanity itself!  

  5. BlueCat says:

    The O&G folks will probably regret turning down the legislative compromise. Any blame has to attach to them.

  6. Andrew Carnegie says:

    This will not be decided as a "zoning question".  It will be decided as pro or anti- business development issue  Anti-fracking plays well with the far left, but the problem for dems is it may be a wedge issue that drives more middle and right voters to the polls.

    • Ralphie says:

      Good luck convincing people in the center that they don't need to breathe or drink water.

    • Progressicat says:

      This one, I don't agree on.  I've been around some folks trying to ban or place a moratorium on fracking (though not involved directly).  THere were a good chunk of suburban Republicans that weren't keen on the urban environment (trucks, wells, hammers, and tongs) invading their quaint little enclaves.

      It's not only a business issue,but a quality of life issue.  The industry has done itself no favors by blasting into the suburbs with little regard for the folks who live there.  Even if they have the right to exploit the resources, there's a way to be a person.  They've abused any goodwill they had (see Greeley) and chosen to be the agent of right (we have a right to drill here) rather than the agent of reason (we need to drill here, but how can we do that in the best way for those who live here).

      If these intiatives pass, the O&G folks have only themselves to blame, not the "radical left."

      • ct says:

        This isn't about 'fracking' but then neither are these measures–especially now that they are 1-a set back and 2-an environmental 'bill of rights'

        But this recently ran in the Delta County Indpendent, among us shallow-gene-pool folk:

        …As a “conservative,” I am very committed to having decisions made at the local level and not by a big government bureaucracy. …The North Fork Alternative, on the other hand, was developed by local stakeholders based on information they are intimately familiar with. I think there is little doubt that this proposal would find favor with local citizens because it was developed by and for them.

        As an example, the well that supplies water for our successful winery is located 47 feet from one of the parcels that the BLM was proposing to lease. That same parcel is 54 feet directly uphill from our/your irrigation ditch. The wineries of the valley, none of which existed 30 years ago, contribute an estimated $1.5 to $2 million directly to the valley economy, not to mention the referrals for restaurants and lodging. Shouldn’t ours and other similar businesses be recognized as a “resource?” The belief that consideration for all of our resources, above as well as below ground, is neither a “liberal” nor a “conservative” concept. It’s just the right thing to do.

        I appreciate the importance of gaining as much energy independence for our country as possible. I also recognize the documented risk that fracking presents to the environment. The only resolution I see to this conflict is to identify and drill in less sensitive areas.

        …Perhaps you saw the article in last Sunday’s Daily Sentinel which, by the BLM’s own admission, stated that over half of the 420 oil and gas wells in Colorado that they deemed to be a higher pollution risk and given priority for inspection have not been inspected due to lack of funds. In the same article Dennis Wills, a former field officer in Price, Utah, stated “it’s a disaster waiting to happen.”  …

        Ty Gillespie
        Azura Cellars

  7. davebarnesdavebarnes says:

    I hate adding new crap to the state constitution, but 88 (2000 ft setback) will pass by a lot (my prediction). The oil companies were/are idiots on this one.

    • BoulderDem says:

      I so, so hope you're right. But I know that you're wrong. Voters won't be voting on a setback requirement when all is said and done (mostly said, on TV). They'll be voting on jobs, jobs, and more jobs. 

      • Andrew Carnegie says:

        Bingo, We have a winner.

        • mamajama55mamajama55 says:

          Colorado has all-mail ballot elections. Marilyn Marks, Republican anti-mail-ballot crusader, said:

          (At 5:40) “I would say that Republicans in Colorado are at a great disadvantage this year… . If you listen to the national pundits, they say that Republicans have this great midterm advantage. But not in Colorado, because of the laws that were passed Last year, 1303, this year, 1164.

          I happen to think that Marks is correct on this score.Mail ballots will disadvantage Republicans. But ballot initiatives, and small-d democracy, will also benefit from mail-ballots.

          Why? Because voters will have the ballot language sitting on their kitchen table in a low-pressure environment. They will have time to research initiatives, look in the League of Women Voters blue book.

          It will not be the high-pressure five minutes using a polling place voting machine, with a line of people waiting to vote, and possibly a partisan "poll watcher" or two hovering to stave off presumed fraud.

           

           

  8. mamajama55mamajama55 says:

    Thanks to all for helping me to become better informed before I advocate for these ballot initiatives to voters. Here are my takeaways so far:

    1. So….88, the 2000' setback initiative, will make fracking (or any oil and gas drilling) more expensive, but not impossible. Mineral rights owners could sue, saying that their right to fully exploit their resource has been compromised. It's not clear how that will turn out.
    2. 89, the "Public right to environment" initiative, says that "Colorado's environment is the common property of all Coloradans,"defines those terms, and then says that the most restrictive regulation governs the safeguarding of that publicly held property.
    3. Would this not strengthen the "nuisance" lawsuits that are already happening vs. drilling and mining across the country?That is, if there is a public right established, individual claims would have more force?
    4. And what about communities? Would communities now be able to file class action lawsuits if they establish that there is pollution, and that there are health effects from it? Scientists are testing water in Garfield County, testing blood in Silt. 

    The claims of 110,000 jobs are bogus, although they are now scaling back the claims to be only 68,000 jobs. The reality is that the best real world studies show about 31,000 Colorado jobs/ year directly related to oil and gas development (not just fracking).

    So I think that these initiatives will help to weight the discussion on the side of public health and away from bogus jobs, jobs, jobs claims. Am I right?

     

     

    • Progressicat says:

      I'll take a shot.

      1)  Generally, yes.  A couple of caveats, the new setback could make fracking impossible in an area where it would be possible with a smaller setback (I might be able to be 500' away from any home, but not 2000' on all sides).  Mineral rights owners will sue.

      2) Right enough.

      3) Probably not.  Nuisance lawsuits are generally things like becoming ill from breathing fumes, unable to sleep because of 24 hour vibrations, and so on.  These things are all clearly harms already.  The reason more public claims aren't made is because the process is expensive and uncertain (some harm can be OK).

      4) That's a harder question.  I can conceive of a situation where a city has standing to sue, but my guess is that any group suits will be from residents in a subdivision rather than towns or cities.

      I don't think that these initiatives will change the discussion, but their passage may indicate that the discussion has changed.

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