DU Study: State Lax In Enforcing Setback Rules For Drilling

setbackstudy

A new study from the University of Denver Environmental Law Clinic asserts that "Gov. John Hickenlooper’s administration is approving oil and gas drilling near homes, schools and businesses without following its own regulations." From their joint press release with the Sierra Club yesterday:

The study recommends the Colorado Oil & Gas Commission (COGCC) reject incomplete drilling permit applications, increase and standardize notification of residents near drilling and fracking, improve online information access and base setback requirements on science and necessary precautions to protect public health and environment.  
 
“The COGCC has a job to do, which is to implement strong regulations and enforce those regulations to protect public health, safety and the environment. When it comes to drilling and fracking near communities, citizens and local government are the ones living with the impacts and their voices need to be ones that are given the most weight in the process,” said Catherine Collentine of the Sierra Club.
 
Colorado regulations, in effect since August, 2013, require pads with multiple oil and gas wells located within 1,000 feet from homes, schools and businesses be placed “as far as possible” from those buildings. The governor and COGCC promised increased enforcement of the regulation last fall, but the analysis found no evidence of additional rigor in permit reviews. [Pols emphasis]
 
Student attorneys at DU Environmental Law Clinic conducted a legal review of 1300 permits issued since August, 2013 and discovered 181 were granted, despite incomplete documentation. Those 181 permits accounted for an immense amount of development: 951 wells, 1221 tanks and 932 separators. Most of the 181 permits for oil and gas wells are located in Weld County – others originated in Adams, Garfield, Larimer and La Plata Counties…
 
“We hope that our analysis will help inform the COGCC as it works to meet its goal of protecting the health and safety of all Coloradoans,” said Lauren Bushong, student attorney with DU’s Environmental Law Clinic. “If followed, our recommendations should allow for greater, and more meaningful, public participation in the permitting process.” 

Read the details of DU's study here. The commission tasked with coming up with legislative proposals to improve local control of oil and gas drilling, which resulted form last year's compromise between proponents of ballot initiatives for that purpose and Gov. John Hickenlooper, is set to deliver their report next month. Should the local control commission not produce a satisfactory result in the legislature, it's likely there will be major combat at the ballot box in 2016 over initiatives to enhance local control and/or further regulate drilling at the state level.

You'll recall that one of the ballot measures last year was to increase setbacks for drilling from existing development.

The principal argument made by supporters of the oil and gas industry in Colorado is that the state "already has" strict regulations on drilling. Obviously, the central claim of this study–that the Colorado Oil and Gas Commission (COGCC) under Gov. Hickenlooper is not properly enforcing drilling regulations as they exist today–does not inspire confidence in their willingness to enforce stronger protections. But this is information that the legislature and (if necessary) the voting public needs to know.

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Con Man Cory Votes Against Wind Production Tax Credit, Hopes You Don’t Remember Those TV Ads

Sen. Cory Gardner.

Sen. Cory Gardner poses in front of some sort of weird spinny thing.

UPDATE: Guess who just voted NO on a Senate amendment to establish a renewable electricity standard? Maybe Gardner was just misquoted when he often said he supports an "all of the above" approach on energy production. Or perhaps he was crossing his fingers every time he said it.

—–

Republican Sen. Cory Gardner earned the nickname "Con Man Cory" during his 2014 campaign for his willingness to say anything that might help him get elected. And when we say "anything," we mean that literally — he lied and hemmed and hawed about his own record and took credit for things he didn't do, even when the facts told a different story.

Sen. Gardner hasn't even been in office for a full month yet, and he's already turned his back on some of his more blustery campaign promises. Remember that September TV ad from Gardner in which he claimed to have "cowrote the law to launch our state's green energy industry?" Kristen Wyatt of The Associated Press quickly dissected the ad and came to the obvious conclusion that Gardner was just expelling his own wind. Here's the first paragraph from that AP story:

GOP Senate candidate Cory Gardner, framed by sunflowers and wind turbines, tells voters in a campaign ad this week that he co-wrote a law to launch Colorado's green-energy economy. He leaves out that the law was repealed five years later, deemed useless for not enabling a single project. [Pols emphasis]

Now, this wasn't the only time during the campaign that Gardner praised the wind energy industry, which provides thousands of jobs on Colorado. And yesterday, Gardner had his first opportunity to put some substance behind those campaign promises. Instead, he voted against an amendment to extend the Wind Production Tax Credit. Yes, you read that correctly. The same guy who campaigned around the state talking about the importance of supporting Colorado's burgeoning Wind Energy industry just voted NO on an amendment to extend a critical production tax credit.

Judging from Gardner's own words, he seems to be aware that he is doing the exact opposite of what he said he would do if elected to the Senate. This is from Gardner's official statement following the vote on Heitkamp Amdt. No. 133:

“I am a true believer in the ability of wind energy to be a key part of an all-of-the-above energy strategy. I have been a major proponent of the Wind Production Tax Credit in the past, and I continue to support incentives for wind energy. It plays a vital role in powering our homes and helping to grow our economy in Colorado.

This amendment, however, is the wrong way to go about it and highlights the continued need for an overhaul our entire tax code. Unfortunately, the amendment advocates the reauthorization of this tax credit without any means to pay for the extension, which I cannot support. Further, the amendment offers no vision of how to eventually ramp down this tax credit, which was always intended to be temporary. [Pols emphasis]

“I am still a major supporter of wind energy, and I look forward to working with Senator Heitkamp on the issue going forward."

Got that, Colorado wind energy producers? "Con Man Cory" is totally in your corner on the Wind Production Tax Credit — hell, he just said it twice — up until the point in which he is asked to cast a vote. Because of modernizing the tax code, or something. Only in Con Many Cory's brain does it make sense to say that voting against the tax credit doesn't mean he opposes the tax credit.

[Side note: Gardner also explains his vote against the Wind Production Tax Credit when he says, "the amendment offers no vision of how to eventually ramp down this tax credit, which was always intended to be temporary." You know what also was intended to be temporary? The billions of dollars in tax credits that the oil and gas industry enjoys every year, even though they are making tens of billions in profits every quarter. That vote will be coming soon, too.)

Sen. Michael Bennet

Sen. Michael Bennet (D-Colo.)

Meanwhile, Colorado's other U.S. Senator, Democrat Michael Bennet, has been traveling the state promoting the importance of the Wind Production Tax Credit and actually casting a vote in support. Here's Bennet talking to Bridgett Weaver of the Greeley Tribune about the Wind Production Tax Credit:

It’s critically important to give certainty to this vital industry in Colorado. And nationally, the wind industry accounts for more than 75,000 jobs in the country and roughly 5,000 in Colorado, and by some estimates around 2,600 in Weld County alone. So that’s what’s so critical about it. It’s not just about the windmills themselves. It’s about the entire manufacturing industry and the subcontractors who are part of that. Many of whom are right here in Colorado that need the certainty that an extension or some other signal will give them in order to move forward.

Vestas is a great example. They were laying people off in 2013 and 2012, and in 2014, I think they announced that they would be hiring 800 employees in Colorado, with 300 of them in Windsor.

This is why Sen. Bennet comes off as a statesman and Sen. Gardner looks like a used car salesman. Bennet talks the talk and backs it up with his vote in the Senate. Pretty simple, no?

So, if Gardner isn't following through on his promises to voters — who is he helping? Why, Americans for Prosperity (AFP), of course, the same group that was founded by the billionaire coal baron Koch Brothers that spent millions on Gardner's Senate campaign. Back in November, Gardner seemed to be telling AFP (publicly) that he would continue to support the Wind Production Tax Credit despite heavy lobbying from AFP to have it killed. Hmmm….sorry, Colorado voters, but at the end of the day, Con Man Cory is going to represent the interests of AFP and the Koch Brothers. This isn't an opinion — it just happened. Gardner did exactly the opposite of what he promised Colorado voters, and he's going to do it over and over and over again.

Here's what Eli Stokols of FOX 31 News wrote after Gardner voted against an amendment on Climate Change:

After campaigning successfully last year as a "different kind of Republican," Colorado Sen. Cory Gardner is under fire from conservationists for voting Wednesday against an amendment stating that humans contribute to climate change, something 69 percent of his constituents believe to be a fact.

Fifteen Senate Republicans, including 2016 presidential contender Sen. Rand Paul, joined Democrats in backing the amendment, but not Gardner…

This is Cory Gardner in a nutshell, folks. Senator Cory Gardner (R-Koch).

Cory Gardner and Climate Change: What Did You Expect?

Sen. Cory Gardner.

Sen. Cory Gardner.

As FOX 31's Eli Stokols reports:

After campaigning successfully last year as a "different kind of Republican," Colorado Sen. Cory Gardner is under fire from conservationists for voting Wednesday against an amendment stating that humans contribute to climate change, something 69 percent of his constituents believe to be a fact.

Fifteen Senate Republicans, including 2016 presidential contender Sen. Rand Paul, joined Democrats in backing the amendment, but not Gardner…

During a competitive U.S. Senate race last year, Gardner ran a TV ad shot in a wind farm touting himself as a next generation conservative who supports clean energy and an all of the above energy plan; however, during debates, he was reluctant to state a clear position on the role of humans in causing climate change.

"During this fall's campaign, Senator Gardner declared himself to be a different kind of Republican," Maysmith said. "Instead, his vote today shows that he is not yet ready to stand up to those in Washington DC who deny that people play a role in climate change.  He ducked this issue during the campaign and now on the floor of the U.S. Senate." [Pols emphasis]

Sen. Cory Gardner's campaigns have long been heavily funded by the oil and gas industry, and Gardner has consistently returned the favor as a reliable vote for the industry's bottom-line interests. What we're talking about here was a token concession to the scientific consensus that humans are contributing to global climate change–nothing that would have changed any policy, as an amendment to a bill President Barack Obama has already promised to veto to build the Keystone XL pipeline.

The vote took place amidst a flurry of amendments to the Republican bill to build the Keystone XL pipeline and were part of an effort by Senate Democrats to bait Republicans into a number of politically risky votes on the subject of climate change.

Meaning that there was absolutely no reason to vote against it, and if Gardner had voted for it, he could have avoided the negative press that comes with voting against something 69% of his constituents believe. It would have been a significant validator of his campaign slogan, "A New Kind of Republican."

So why didn't he? That's simple–he's not up for election for six years, and there's no need for any of that kind of pretense for at least four or five of those years. On abortion, on immigration, and now climate change, the Cory Gardner you always knew was there is shining pearly-white bright.

Big Step in Moffat County Toward Greater Sage Grouse Protection

(Promoted by Colorado Pols)

A recent column in the Glenwood Spring Post Independent is correctly titled: “Clock ticking on greater Sage Grouse decision,” and it discusses how even though Congress attempted to defund efforts to protect the species, the federal government is compelled and still on track to make a decision on listing the bird under the Endangered Species Act by this September. Indeed, the clock is ticking.

But despite this, there is also hopeful news lately on the grouse, at least some signs of progress toward gains in meaningful and on-the-ground protections for this unique and important species. 

First, tangible measures to protect the grouse are being put in place on private lands through conservation agreements. The Colorado Cattlemen’s Agricultural Land Trust recently completed a conservation easement on one of the largest working ranches in Northwest Colorado. Multiple partners contributed to the protection of 16,000 acres of key sage grouse habitat on the Cross Mountain Ranch in Moffat County, close to Dinosaur National Monument, as reported in the Steamboat Pilot:

In the easement document, reasons for conserving the land include a desire to preserve Moffat County’s infamous wide-open spaces. More importantly, it preserves thousands of acres of dense Greater sage grouse habitat.

Tim Griffiths, national coordinator for the Natural Resources Conservation Services’ Sage Grouse Initiative, said this particular parcel should be able to help conserve about 5,000 Greater sage grouse birds.

He also said the biggest threat to the Greater sage grouse species is fragmentation and conserving this piece of land creates a quarter-million acre checkerboard of public and private conserved land woven together.

“We just removed the threat of fragmentation in the one place in Colorado that has more birds than anywhere else in the state,” Griffiths said.

This tangible progress is being made through the partnerships of nonprofit organizations like the Colorado Cattlemen’s Agricultural Land Trust, which secured the Moffat County agreement, with state agencies like Colorado Parks and Wildlife and the federal government programs, like the Sage Grouse Initiative.

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Something For Everyone In Hick’s 2015 State of the State

hicksos

As the Colorado Independent's Tessa Cheek reports:

Governor John Hickenlooper used his fifth State of the State speech today to paint his legislature, where Republicans control the Senate and Democrats control the House, with a Colorado-ness that reaches beyond party priorities. He touted the new first-ever statewide water plan, quoting Thomas Hornsby Ferril, whose poetry is engraved in the Capitol and that emphasizes common interest: “Here is a land where life is written in water.”

“Representatives of urban areas recognized that locally sourced dairy and food is vital to all of Colorado; while the agricultural areas realized that they could not simply allow urban areas to dry up,” Hickenlooper said of the water plan, noting it involved “the largest civic engagement process in state history.”

Lawmakers and leaders should come together, Hickenlooper suggested, to apply similarly high standards of public input and cooperation to tackle tough questions surrounding topics like oil and gas development and government funding under the Taxpayers Bill of Rights (TABOR)…

The Denver Post's John Frank on Gov. John Hickenlooper's measured comments on the controversial so-called Taxpayer's Bill of Rights (TABOR):

Hickenlooper capped his speech by addressing the state's budget situation — which he labeled a "financial thicket" in his inaugural address Tuesday. It's a reference to the possibility of refunds under the state's Taxpayer's Bill of Rights, despite underfunded state programs.

"There is a legitimate debate of whether government should be a bit bigger or a bit smaller," the governor said, according to prepared remarks. "But that misses the point. Regardless of size, government must work."
 
But he stopped short of asking for an overhaul of TABOR and avoided taking a direct stance on how to address the issue.

"Some people want to get rid of TABOR, some want to get rid of Amendment 23, others want to get rid of Gallagher. There is no shortage of thorns in this fiscal thicket," he said. "And while we will continue to strategically prune, our state budget can only endure so much cutting. "

The Denver Business Journal:

Referencing the oil and gas industry, Hickenlooper emphasized the number of environmental protections he has added through collaboration with the industry during his first term, then said he looks forward to seeing the recommendations that a task force examining the role of local government in regulating the industry will deliver later this session. But he did not give any parameters as to what kind of increased regulations he may be willing to back in the Legislature.

On the issue of local control of oil and gas drilling, an issue that caused intense infighting among Democrats last year, Hickenlooper didn't offer much in the way of specifics–but the language that he used to describe those proposals, and the competing interests of surface and subsurface property owners, is unlikely to make conservationists very happy. From the speech:

As part of a compromise to keep economically-devastating initiatives off the ballot, [Pols emphasis] we have worked with the Keystone Center and brought long-polarized interests to the same table…

I look forward to the recommendations of this task force, and pledge to work with you and other stakeholders in developing our energy resources, protecting property rights and our natural environment and public health.

The insistence that increasing local control over oil and gas drilling, in particular the setback and "environmental bill of rights" initiatives put forward during last year's debate, would be "economically devastating" broadcasts our Democratic governor's bias on the issue. There is a legitimate conflict between the rights of surface landowners and mineral rights holders needing resolution, but Hickenlooper still appears firmly on the side of mineral rights owners against local communities based on his comments today.

We wonder how politically tenable that position will be for Hickenlooper throughout his second term, as more research on the effects of "fracking" near residential neighborhoods comes out, and the plummeting price of energy caused by OPEC's price war on the frackers eats away at the already-overblown estimates of the economic impact of the industry in Colorado. Might the same changing economics that led Hickenlooper to endorse President Barack Obama's threatened veto of the Keystone XL pipeline soften Hick's hard line against communities worried about fracking in their boundaries?

That's one of the biggest of many questions awaiting Hickenlooper in his "legacy term."

Lies, Damn Lies, and Fracked Statistics

(Promoted by Colorado Pols)

The statement is ubiquitous.  Every time an oil and gas public relations type tries to downplay concerns that neighbors might have about the noisy, smelly, lit-up-like-Christmas 24/7, industrial traffic, activity, machinery, infrastructure and chemicals right smack in their midst.

“99.5% of fracking fluid is just water and sand.” 

But is it?  Has anyone in the media actually fact-checked this number?  With thousands of wells being fracked every year in Colorado, multiple times per well with millions of gallons of fluid that is a pretty stark, precise, and definitive claim, when you get down to it: “99.5% of fracking fluid is…”

There it was again yesterday, in a letter printed in the Grand Junction Daily Sentinel from a former longtime Grand Junction TV news anchor (now representing yet another recently formed oil and gas PR creation, the Piceance Energy Action Council):

“Fracking fluid (consisting of 99.5 percent water and sand)…”

No nuance, no context just a statement that it is so, like "my door opens onto my porch…".  In print even.  From a ‘trusted’ and familiar voice.  Rinse, repeat, transcribe.

Not surprisingly, it doesn’t take long to poke holes in the “99.5%” claim, such is often the case with such certain and precise numbers. According to FracFocus.org (the site where disclosure is mandated by state law) many fracking fluid recipes do in fact reach, or get close to, that number.  But here's the thing, others do not.  And that’s all it takes to turn a statistic into a lie.  Furthermore, the precise number itself is less important than the willingness of industry to dismiss any concerns out of hand with rote talking points and empty 'factoids.' 

It should also be noted that there remain questions about how well the FracFocus site captures what is really happening in a useful timeframe to inform citizens about what type of potentially dangerous activity is occurring in their towns and communities.  But setting that aside and just considering the data that are available to the public–and in this case, I admit, I only did a cursory review–I ask: Is the reality that “most fracks are up to 99.5% water and sand” the same as the claim “fracking fluid [consists of] 99.5%” water and sand?  If not then industry’s own spokespeople are either misinformed or dissembling. 

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KeystoneXL and New Energy Strategies in an Era of Abundance

(Promoted by Colorado Pols)

Just over 40 years ago the US economy experienced a first: an oil embargo by (then) OAPEC that quadrupled the price of oil.  It was our first 'oil shock', to be followed by a second 'shock' in 1979.  The US response, in part, was the creation of the Strategic Petroleum Reserve (SPR).  Our national response, rational for the time, was rooted a mindset of scarcity. 

Like relics of Cold War mentality, it's time to move ourselves from a mindset of scarcity to a mindset of abundance.  SRP has the pumping capacity to bring a maximum of 4.4 million barrels/day in to the market place in a national emergency from it's maximum holding capacity of 727 million barrels.  To put that in perspective, our national fleet of ethanol plants today produce an annual equivalent of roughly one-half the total supply of what is the largest emergency oil supply in the world!!

In the past there have been Congressional attempts to manipulate the SRP for various reasons:  Democrats have sought to tap the reserve to lower prices in times of high prices, Republicans have hinted at doubling the capacity of the reserve in anticipation of continued Middle Eastern conflicts.  It all depends on what your definition of 'strategic' might be on any given day through a political lens.  One on hand, using the supply to lower prices robs the unconventional oils from market prices high enough to establish a legitimate economic model for extraction; on the other, as we are experiencing today, low oil prices are putting hundreds of millions of dollars daily in new, disposable income in Americans pockets.  Given the interconnectedness of global markets and global energy production today, our definition of 'strategic' must be increasingly understood in a more comprehensive systems approach: the economy, our national security, rural development and our soft power in international diplomacy.

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Hickenlooper: Veto Keystone XL

keystone-xl-southern-section-starts-transcanada-1-537x357

The Denver Post's Mark Matthews–didn't see this coming, did you?

Speaking to reporters outside the White House, Colorado Gov. John Hickenlooper said Tuesday afternoon that he supported the administration’s pledge to veto new legislation from Congress that would fast-track construction of the controversial Keystone XL pipeline…

Hickenlooper said Obama, a fellow Democrat, was making the right call in opposing the U.S.-Canada oil pipeline.

“He has not been persuaded that this something in the best interest — long-term — of the United States,” Hickenlooper said. “I know there are a lot of people in Colorado who disagree with that (but) … with the price of oil down as low as it is, I don’t think the Keystone pipeline makes sense.”

Gov. John Hickenlooper.

Gov. John Hickenlooper.

Support for the Keystone XL pipeline, which would speed the passage Canadian heavy crude oil to refineries and export terminals on the Gulf Coast, has become an article of faith for just about every energy industry backer and surrogate in Colorado politics. This is despite the fact that Colorado already has a pipeline connection from Commerce City to Alberta, and the Keystone XL pipeline would never enter the state. In fact, the biggest quantifiable effect completion of the Keystone XL pipeline on Colorado would have is an increase in local gas prices, as Canadian crude is routed to global markets via the Gulf Coast. The campaign trail claims by Cory Gardner last year that Keystone XL would create "thousands of jobs in Colorado" were simply hogwash, unsupported by any objective evidence.

And of course, there is the tar sands are really bad for the planet angle.

With that said, and Gov. John Hickenlooper makes this pretty clear, the biggest reason why Keystone XL is quickly becoming a nonstarter is the plunging global price of oil–which changes the economics of exporting massive quantities of low grade Canadian crude oil, well, anywhere. Now that low oil prices and a glut of supply have taken the immediate pressure off, a rational conversation about this project reveals a high cost with dubious benefits at best to the American economy.

It may not be as satisfying, but sometimes the bottom line speaks louder than a million protesters.

Pipeline to Nowhere

Keystone XL Pipeline new

Here’s the new design of the Keystone XL Pipeline.

As Congress begins work (theoretically, anyway) on another legislative session today, President Obama is making it clear that he will not sign a bill that would authorize construction of the Keystone XL Pipeline. As CNN reports, Senate Democrats believe they have the votes to sustain a potential veto:

Incoming Senate Majority Leader Mitch McConnell has said the first bill he'll move once the GOP takes charge of the chamber on Tuesday is one that would authorize construction of the long-delayed pipeline.

But many expect President Barack Obama would veto such legislation, given his criticism of the 1,179-mile pipeline's potential benefits. The project is currently in the hands of his State Department, which must green-light the pipeline since it crosses international borders. 

If Republicans follow through on their promises, and Obama is being read correctly, that would mean the GOP would need to win the support of enough Democrats to secure a two-thirds majority vote in order to override Obama's veto — putting the Keystone project's hands in the fate of Senate Democrats.

Sen. Chuck Schumer says flatly the project won't move forward — at least in its current form. "We will have enough votes to sustain a presidential veto," [Pols emphasis] the New York Democrat told CBS's "Face the Nation" on Sunday.

Schumer said Democrats plan to offer several amendments to the Keystone bill.

Congressional Republicans could go ahead and try to pass a Keystone Pipeline bill and essentially dare President Obama to veto the legislation, but to what end? Republicans made significant gains in both the House and Senate in 2014 while demonizing President Obama to attract voters to their side. But in case you haven't heard, Obama is term-limited; Republicans can't use Obama to win mid-term elections anymore, and it's hard to think that this issue has enough legs to still be important as a campaign issue in 2016.

Republicans could pass a Keystone Pipeline bill, Obama could veto the bill, and Senate Democrats could sustain the veto. And then what? There will be plenty of hooting and hollering from the pro-Keystone crowd, but there won't be anything left to do about it.

Top Ten Stories of 2014: Frackapalooza! (#7)

Photo courtesy Rep. Jared Polis

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.

Fracking fluid.

Fracking fluid.

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.

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.

New York’s Fracking Ban–Of Course It Matters To Colorado

Fracking near a high school in Greeley, Colorado.

Fracking near a high school in Greeley, Colorado.

The Denver Business Journal's Cathy Proctor has a great story published yesterday with local reaction to the decision by New York Gov. Andrew Cuomo's administration in mid-December to ban the practice of hydraulic fracturing for oil and gas entirely. New York state does not have the kind of widespread frackable energy deposits found in Colorado, but the region's rich Marcellus Shale formation stretches into some less-populated counties in the southern part of the state.

New York's reputation as an East Coast liberal stronghold is the first and most obvious line of defense for Colorado's growing army of energy industry spin doctors, but Proctor's story today demonstrates that the fight over fracking in Colorado is going to be impacted by New York's decision one way or another:

Asked about Cuomo's decision, [Gov. John] Hickenlooper said, via an email from his spokeswoman, that "Colorado is not New York and every state has to find the approach to energy development that makes sense for their communities."

"Colorado is fortunate to have an abundance of energy resources and a long history of environmentally responsible energy development, he said. "The work of our task force will ensure we continue to develop in a way that is safe for our residents, supports jobs and the economy, respects private property rights and protects our environment."

At the other end of the spectrum, [Rep. Jared] Polis criticized Colorado's existing regulations because they don't allow individuals and communities to decide where oil and gas operations should take place.

"While the state of New York has concluded the risks are too great to allow fracking at all, in Colorado homeowners aren't even allowed to stop oil and gas companies from drilling on their own property, despite potentially being only a few hundred feet from their home or school," Polis said in a statement. [Pols emphasis]

"I hope rather than banning it as a state, we let each homeowner and community decide if they want fracking or not," he said.

Photo courtesy Rep. Jared Polis

Photo courtesy Rep. Jared Polis

Here's something we've said before, and that even the leftiest anarcho-primitivist yurt dweller (you know who you are) needs to understand: there will be no statewide fracking ban in Colorado. When Gov. John Hickenlooper says that "Colorado is not New York," he's stating the obvious. There is only a very small percentage of fairly radical voters who will disagree with unabashedly pro-fracking Gov. Hickenlooper's view that energy development in Colorado is important, makes a lot of people in Colorado money, and has a long history. There is lots of debate over the degree of energy's importance to the state's economy, but it certainly does matter more to Colorado than to, say, New York.

But that's not really the point, because there will be no statewide ban on fracking in Colorado.

Fracking is not a new technology, but its widespread recent use to recover previously inaccessible oil and gas underlying a large area of Colorado's Front Range has brought mineral rights owners and the energy industry into direct conflict with densely populated residential communities. The industry's asserted right to operate their dirty industrial process anywhere there are mineral rights to do so results in horrendous land use conflicts that would never be allowed otherwise: heavy industry in neighborhoods, and next to schools. This is what has led to several Front Range cities passing moratoria and bans on fracking within their boundaries, directly challenging the state's hegemony over energy development.

We'll have more to say about the battle in Colorado over fracking, a battle with Democratic champions on both sides now in Hickenlooper and Rep. Jared Polis, as we continue to recap the year's biggest stories in Colorado politics. New York's decision to ban fracking is just one new discussion item in a debate that raged furiously in 2014 in Colorado, and is set to intensify early next year as the commission brokered in the uneasy truce between the energy industry and environmental groups allied with Rep. Polis makes policy recommendations on local control over drilling.

Here's the full report from the New York Department of Health. You'll notice pretty quickly that it asks more questions that it provides answers. But in large part, these are the same questions the people of Colorado are asking about fracking–and we're going to have to reckon with them here too. The absurdly shrill attacks on Polis and environmentalists this year for daring to challenge the status quo on this issue are severely discredited by New York's action–especially when you consider than none of the measures backed by Polis would have done what New York just did.

And the bottom line is, there won't be a statewide fracking ban in Colorado. We think it's important to say that over and over, since the energy industry's high-dollar PR campaign revolves around the hypothetical consequences of a fictitious proposal.

But having said that, New York's fracking ban is going to factor in Colorado's debate over fracking. And it should.

Tilting the Keystone

(Promoted by Colorado Pols)

Webster defines keystone as "the central principle or part of a policy, system, etc., on which all else depends." Being an ardent opponent of the KeystoneXL in rural Colorado isn't a popular position. The vision for this 21st-century pipeline has been sold as a necessary component of our energy challenges and a massive job creator. Unfortunately, the pipeline is neither and would be better characterized, through the lens of American rural landscapes, as an assault as opposed to an asset.

Giving credit where credit is due, KeystoneXL is someone's vision; when political will combined with that vision the opportunity moved from 'paper to pipeline'. This grand scheme dictates the destruction of  the boreal forest, extracting hydrocarbons formed millions of years ago, forced in a pipeline and moved thousands of miles to Gulf refineries where the final product will be shipped to foreign lands.  It promises thousands of temporary construction jobs and a handful of permanent jobs; it holds the possibility of polluting the nation's largest underground fresh water supply, the Ogallala, and most economists predict the pipeline will increase the cost of gasoline in the Rocky Mountain region 10 to 20 cents per gallon.

From a Colorado perspective there seems to be little upside, and the proposed pipeline project only magnifies our own lack of commitment to a vision of a robust and resilient 21st-century American economy.  In the absence of our own vision, the void is being filled by someone else's.  

But lets for a moment revision the foundation of the Canadian project:  the 1,379 miles of pipe laid horizontal and pointing towards Texas.  Let's  turn it 90 degrees vertical and apply an American idea to the proposal.  Slicing the pipeline into 212 foot segments (the average height of a wind turbine tower, and turning the pipe upwards gives us 34,337 opportunities for wind development across our midwestern landscape.  Using a Colorado-made Vestas product, those sticks transform themselves into 72 gigawatts of wind energy potential, nearly enough generation capacity to displace the 329 coal plants in the United States that face retirement from age or inability to meet new air standards.  Instead of creating a carbon bomb, we've created the infrastructure to displace hundreds of millions of tons of carbon dioxide annually.  

From a fresh water perspective, something important to each and every one of us in the West, displacing 72 megawatts of US coal generation could save over 1,000,000 acre feet of fresh water annually.  Through the lens of job creation,  converting Keystone to kilowatts is the real job creator.  Using industry statistics of an average, 250-megawatt wind farm, simply turning the horizontal pipe upwards would create 150,336 construction jobs, 124,416 positions in manufacturing, 23,040 jobs for planning and development and 7,776 permanent jobs in operations.  From an rural economic perspective, having this scale of infrastructure investment from North Dakota to Texas would give us the platform to create a real, lasting rural renaissance across the Great Plains.

As a part-time creature of Washington, DC mired in rural policy issues, I have little faith that grand visions are possible in today's poisoned political well. My example of slicing the pipeline into wind towers was merely illustrtive but to prove a point on how my personal perspective judges the Keystone plan quite differently from my neighbors. The structural challenges in todays money-soaked, two-party system are daunting.  January will bring us a new majority in Congress that conventional wisdom instructs us will be antagonistic towards alternative forms of energy.  For now I'll hold that criticism until it is earned: Teddy Roosevelt gave us the National Park System; Richard Nixon the EPA, George H.W. Bush gave us the nation's first cap-and-trade program (acid rain) and George W. Bush gave us our nation's Renewable Fuel Standard after putting in place, as Texas Governor, one of the most aggressive wind energy portfolios in the nation.  Unconventional wisdom might better instruct us that new opportunities are just around the corner.

I will remain the optimist.

 

Air…Water…Health…and Accommodation.

(Promoted by Colorado Pols)

Photo courtesy Rep. Jared Polis

Photo courtesy Rep. Jared Polis

Today and tomorrow Governor Hickenloopers' Blue Ribbon Panel on Oil and Gas policy is meeting in Rifle to discuss the future of drilling and fracking in Colorado. Not many people I know have high hopes this will result in any groundbreaking policy suggestions, but it could. If the Commissioners are willing to set aside a century old principle for a few minutes and consider that we are living in 2014 and not 1872…and that consideration points the way to only one conclusion.

It is time to effectively incorporate the Rule of Reasonable Accommodation into COGCC policy, taking into consideration the advances in technology and practices used by the modern extraction industry.

When Congress split mineral and surface estates in the 19th century, it was done for reasons that seemed appropriate and necessary, at the time. But times have changed, and it is imperative that the "Blue Ribbon Panel" understand and act upon those changes. Since the beginning of the separation of the two estates, the mineral estate has generally considered to be dominant. The rationale for the mineral estate being dominant was that the ownership of minerals would be meaningless if the mineral owner could not access and extract those resources through the surface. That seems reasonable enough, and for a very long time, difficult to argue.

With advanced technology, specifically directional drilling, the Rule of Reasonable Accommodation becomes a much more flexible vehicle. The Rule, as set forth in CRS 34-60-127, states:

"An operator shall conduct operations in a manner that accommodates the surface owner by minimizing intrusion upon and damage to the surface of the land."

As used in this section, "minimizing intrusion upon" can include "selecting alternative locations for wells" among other measures as long as they are "technologically sound, economically practical, and reasonably available to the operator". With modern drilling practices providing the industry with the capability to reach out, literally and laterally, for miles, there is no longer any need for an operator to sit atop or even close to a mineral resource in order to gain access.

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Another Fake “Concerned Citizen” Celebrates Fracking

Longtime oil industry employee Michelle Smith.

Longtime oil industry employee Michelle Smith.

A press release from energy industry advocacy group Coloradans for Responsible Energy Development yesterday discusses a pro-fracking ad (above) that's been playing for a couple of weeks in Colorado:

Coloradans for Responsible Energy Development (CRED) has released a new television commercial featuring Michelle Smith, an organic based farmer from Elbert, Colorado, who relies on income from oil and natural gas development to help sustain her family farming operations. In the advertisement, Smith shares with viewers: 

“Mineral rights make all the difference to our small organic based farm.  Like many Colorado farm-to-table businesses, if we can’t offset operating costs with our minerals, then we’re out of business. Organic operations are expensive. People like us rely on those payments for their family’s healthcare or their kids’ education. An attack on fracking is essentially an attack on landowners like us. Those who would ban fracking ignore our rights, and that just gets my goat.”

…Beyond her message in the commercial, Smith has shared that “as a rancher in Elbert County, Colorado, my family’s livelihood relies on the quality of the pasture that our livestock grazes on. That’s why every decision I make, I make with my ranch’s future in mind,” she says.

Lynn Bartels of the Denver Post gave this ad favorable treatment in a blog post last month:

A new ad promoting fracking in Colorado features an Elbert County couple who raises goats and farms organically.

The idea of pairing organic farmers and fracking comes from Coloradans for Responsible Energy Development.

But there's more to the story of Michelle J. Smith, registered Republican of Elbert County, than either CRED or Bartels saw fit to explain:

The Quiat Companies is an innovative investment company, which is comprised of approximately fifty real estate and oil & gas holdings throughout the United States…with over 33 years of professional experience in the oil and gas business, Ms. Smith has been with The Quiat Companies since 1992 focusing on acquisitions, divestitures, and coordinating successful drilling joint ventures. [Pols emphasis] As Land Manager, she is instrumental in managing the nationwide assets of our fifteen oil and gas limited liability companies.

Ms. Smith’s professional experience includes Davis Oil Company (Denver, Colorado) and Anderman Oil Company (also in Denver) as well as acting as an Independent Land Negotiator. She is the president of the National Association of Royalty Owners (NARO) Rockies chapter, a member of the American Association of Petroleum Landman (AAPL), Denver Association of Petroleum Landmen (DAPL), board member of Vital for Colorado and a graduate of Cypress College (California).

Just a salt-of-the-earth Colorado farmer–an organic farmer at that–trying to hold down the farm, right? Wrong. Much like the Republican political activists trotted out by Americans for Prosperity to tell their dubious "Obamacare horror stories," "organic farmer" Michelle Smith is about as unbiased a source on fracking as an oil and gas industry lobbyist–which makes sense, since she basically is one.

Your friends seeing this ad on TV probably ought to know that.

Clock Still Ticking on the Greater Sage-Grouse

(Promoted by Colorado Pols)

Among the news-you-didn’t-hear leading into the holiday weekend, which got buried by other things—some worthy of attention and reflection, others the typical media noise—was a recent poll on the Greater Sage-Grouse.  It shows sportsmen in Colorado (and across the other 10 western state where the bird occurs) favor protecting its habitat. 

This is noteworthy as the federal government just announced it is listing the bird’s smaller relative the Gunnison Sage-Grouse as “Threatened” under the Endangered Species Act (ESA).  This story was posted online by the Public News Service – Colorado:

Earlier this month the U.S. Fish and Wildlife Service announced it is classifying the Gunnison sage grouse as threatened. Under a court-ordered agreement, the agency will decide by next year whether to list the greater sage grouse.

Meanwhile the online news service ‘Environmental Protection’ reports:

The National Wildlife Federation on Nov. 19 released results from a poll of sportsmen and women in 11 states in the heart of greater sage-grouse country, with a majority of the respondents supporting efforts to protect the bird and the sagebrush landscape that supports it. A majority backed restrictions in important habitat to save the bird and avoid its placement on the federal Endangered Species List. Such a listing probably would lead to more stringent, long-term constraints on activities as hunting, fishing, recreation, and grazing, said John Gale, NWF's national sportsmen's campaign manager.

"First and foremost, it's critical that we save this iconic Western wildlife species," he said. "We can do that with strong conservation plans that protect key greater sage-grouse habitat while allowing responsible energy development, grazing, and other activities on other public lands."

He pointed to the U.S. Fish and Wildlife Service announcement last week that it is classifying the Gunnison sage-grouse as threatened to keep it from going extinct. The Gunnison sage grouse is smaller than the greater sage-grouse and now is found in portions of Colorado and southeastern Utah, which represent only 7 percent of its historic range, according to NWF.

The Durango Herald reported on the Colorado angle

According to survey results, nine out of 10 hunters believe it is important to take action to protect sage-grouse habitat. Almost as many believe protecting the animal will benefit other game species.

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