Photo courtesy Rep. Jared Polis
Colorado has a long history as an energy-producing state, but the recent explosion of hydraulic fracture drilling to extract oil and natural gas from previously uneconomic deposits has spread the impacts of drilling to communities that have never seen it before. Urbanization of the Front Range of Colorado has put residential communities in direct conflict with subsurface mineral rights owners, making energy development an up close and personal issue for large population centers in addition to the heavily drilled areas of the rural Western Slope and Weld County.
In 2013 and 2014, Front Range cities continued to pass bans and moratoria on "fracking" within their municipal boundaries. Though they enjoyed popular support, these bans have generally not fared well in court challenges. In 1992, the Colorado Supreme Court struck down a similar ban in Greeley, and in 1996 ruled that subsurface mineral property rights have the same validity as surface property rights. These precedents have resulted in most of these recent measures being thrown out in court.
The result, say local governments and conservation activists, is inappropriate heavy industrial land use in residential areas. They argue the rights of subsurface mineral owners to extract their holdings is directly impacting surface property values–and to a degree yet to be fully determined, the health of affected residents. In the absence of conclusive studies on the impact of fracking, but with much evidence to suggest considerable harm being done, New York state has banned the practice altogether.
Into this contentious atmosphere stepped Rep. Jared Polis of Boulder this year. Polis, a wealthy young internet entrepreneur and one of the major architects of the "Blueprint," owns property in Weld County. In the summer of 2013, a drilling operation was set up on adjacent property that was later found to be in violation of setback rules from existing structures, and fined tens of thousands of dollars. That experience contributed to Polis' activism on the issue subsequently, and his support for ballot initiatives then being developed to give local communities greater control over oil and gas drilling.
The threat of Polis' wealth behind initiatives to regulate the oil and gas industry led to what can best be described as a wholesale freakout by the industry and its vast army of well-paid PR flacks, surrogates, and politicians on both sides of the aisle. This leads to an extremely important fact that everyone needs to understand: in addition to basically total control of the Colorado GOP, the oil and gas industry also wields significant influence in the Colorado Democratic Party. Democratic Gov. John Hickenlooper was elected in significant part due to a belief that he could bring pro-energy and environmentalist Democrats together, and on some occasions he has done so–like the state's new air quality management rules. At other times, though, Hickenlooper has been nothing short of oafish on energy issues, enraging the left with his wildly deceptive claims to have "drank fracking fluid."
The power wielded by the energy industry behind the scenes in Democratic politics led to an ugly period this summer, in which Rep. Polis was attacked publicly and privately by fellow Democrats for daring to push these "divisive" local control ballot measures in a tight election year. Industry-friendly Democrats "concern trolled" the party with dire warnings of the oil and gas money that would flood the state to defeat these measures, absolutely certain, despite evidence to the contrary, that this would result in devastating collateral damage to Democrats up and down the ticket.
To counter those biased predictuions, supporters pointed to their own polling, showing local control ballot measures enjoyed broad support, and likely would pass in a statewide vote–just as fracking bans and moratoria have fared well in local votes. Among rank-and-file Democrats, support for environmental and health protections over unbridled drilling is a lopsided no-brainer. In fact, there's a pretty good argument to be made that Democrats in Colorado have weakened their core base of support by consistently running–and governing–to the right of base Democrats on energy development.
Rep. Jared Polis.
In the end, as we reported in August, Polis, Hickenlooper, and stakeholders on both sides reached a temporary compromise that resulted in the withdrawal of the drilling setback and "environmental bill of rights" initiatives Polis was supporting. Polis' compromise, it's fair to say, was not received well by the more strident anti-fracking activists in Colorado, though mainstream groups like Conservation Colorado praised it. The commission created by their agreement to make recommendations on enhancing local control legislatively is set to report in February of next year. For his part, Polis has said that he will go back to the ballot if the commission doesn't come up with effective proposals, or the legislature doesn't pass them. Everything we know about this compromise suggests that Polis made the deal in good faith with his fellow Democrat Gov. Hickenlooper, and that he will indeed be back if it doesn't make tangible progress.
Meanwhile, the energy industry has funded a lavish public relations campaign to promote fracking as a safe source of domestic energy. This campaign has consistently relied on deceptive claims about the effects of a statewide ban on fracking, even though nothing Polis supported in 2014 comes anywhere close. Perhaps most importantly, this issue is not playing out in a vacuum: the shale energy boom in the United States has awakened the global energy export cartel OPEC, and a global price war driving energy prices down to levels that make extraction unprofitable could do more to curtail fracking's local growth than anything else–at least for the near-term future.
Bottom line: the conflict between the Old West's mineral wealth and the New West's quality of life has grown with the scale of both, and with greater understanding of the consequences of our actions. A great metropolis has grown up over minerals that used to be either inaccessible or accessible without impacting residential populations, creating new questions our old laws may not be equipped to settle. If the final chapter of this conflict is written in our lifetimes, we'll be very surprised.
But we believe our descendants will judge us on our protection of the surface over the minerals beneath it.