“The cost to Colorado taxpayers and our economy that would result from the development of the Flaming Gorge pipeline would be devastating. This project would also increase the risk of a compact call that would hurt our state’s water users,” the letter (pdf) from 118 affected businesses reads.

Last week the Federal Energy Regulatory Commission reaffirmed an earlier decision to deny a rehearing of Aaron Million’s permit application to build a lucrative 578-mile pipeline, which would annually siphon 80 billion gallons of water from Wyoming’s Green River to Colorado’s Front Range.

A state task force convened in January to review the proposal and it is set to finish in December.

Protect the Flows, a coalition of over 500 small business owners in the seven-state Colorado River region, recently released a report showing that the Colorado River and its tributaries support a quarter million U.S. jobs and generate $26 billion annually in economic output. In Colorado alone, the Colorado River supports about 80,000 jobs and about $9.6 billion in total economic output.

The Green River is a principal tributary to the Colorado River. (Photo by Brent Gardner-Smith/Aspen Journalism)

A study by Western Resource Advocates indicated that the pipeline would take nearly a quarter of the Green River’s flow, resulting in a $58.5 million dollar annual loss to the region’s recreation economy. That same study reported that the water delivered to the Front Range by the pipeline would have to be sold at a price that is the most expensive in Colorado’s history. The threat of diversions has made the Green the nation’s second most endangered river, according to one group.

Messages left for Hickenlooper’s spokespeople were not immediately returned.

“HB 1036 creates two classes of citizen access to open records: a special class of ‘interested parties,’ who will have access to ballots; and a second class – that is, all other people in the State of Colorado – who will not have that access,” says the letter sent to Hickenlooper on Wednesday. “This special treatment of certain citizens and groups, and the corresponding discrimination against all others, undercuts entirely the public policy underlying CORA, which is that ‘all public records shall be open to inspection by any person at reasonable times.’”

Signatories to the letter include former Colorado Speaker of the House Terrance Carroll, members of the Colorado Lawyers Committee Election Law Task Force, the Colorado Union of Taxpayers, Colorado Common Cause, Colorado Ethics Watch and the ACLU of Colorado.

Senate Bill 155 (pdf) was sponsored by Boulder Democrat Rollie Heath and Hayden Republican Jean White. It meant to address concerns that public requests to view cast ballots would bog down county clerks in busy election periods and that ballots submitted to public inspection might be traced back to individual voters. It was voted in a rush out of House committee last Tuesday and died on the House floor as part of the dozens of bills caught in the crossfire when activity ground to a halt during a battle over a gay-rights civil unions bill. The bill was then attached to House Bill 1036 sponsored by Littleton Republican Jim Kerr and passed.

The Denver Post characterized Heath and White’s SB 155 as dubious.

“When we first wrote about this bill in March, we described it as a flawed measure that left too much discretion to county clerks and failed to improve procedures that fueled worries about voted ballots being linked to specific voters. But we were also relieved that the clerks had retreated from their earlier opposition to any public access to voted ballots.

“The more we consider this complex bill, however, the worse it looks — and our unease is heightened by its crude handling. Not only was it appended to an unrelated measure having nothing to do with elections, it also was rushed through the House with little notice and limited debate.”

The Open Records Act is a main tool used to promote government transparency and accountability. Citizens with complaints and questions rely on the Act to counteract official neglect and stonewalling, as do journalists, often.

Messages left with the governor’s office seeking comment were not immediately returned.

The full letter to Hickenlooper:

REQUEST FOR VETO OF HB 12-1036

To: Governor John Hickenlooper
From: Jenny Flanagan; Dan Sweetser; John Zakhem; Geoffrey Klingsporn,
Terrance Carroll; Jennifer Weddle; Elena Nunez, Colorado Common Cause;
Luis Toro, Colorado Ethics Watch; Denise Maes, American Civil
Liberties Union of Colorado

Date: May 16, 2012 Re: Request for Veto of House Bill 12-1036
Delivered Via E-Mail

Dear Governor Hickenlooper:

We write to ask that you veto House Bill 12-1036, which threatens to gut CORA, one of our few elections accountability tools. Specifically, HB 1036 now contains the language originally proposed by Senate Bill 12-155 addressing the availability – or non-availability – of ballots under the Colorado Open Records Act (CORA). For the first time, HB 1036 creates two classes of citizen access to open records: a special class of “interested parties,” who will have access to ballots; and a second class – that is, all other people in the State of Colorado – who will not have that access. This special treatment of certain citizens and groups, and the corresponding discrimination against all others, undercuts entirely the public policy underlying CORA, which is that “all public records shall be open to inspection by any person at reasonable times” (emphasis added).

All citizens should be treated in the same manner with respect to CORA requests. But HB 1036 denies access to ballots at precisely the time when those who are denied have a fundamental interest in the transparency of their government and the integrity of the election – that is, before the election is certified. To deny access is to strip the majority of citizens of any meaningful ability to participate in the verification process for the election.

What HB 1036 Does to CORA

The offensive scheme established by HB 1036 begins by expressly mandating that election officials “shall not fulfill a request…for public inspection” of ballots (emphasis added) during the period beginning 45 days prior to the election and concluding either with the date on which the election is certified or the recount is complete, whichever is later. During this blackout period, no member of the public can have access to the ballots, EXCEPT for the special class of “interested parties.” Those who can have access to the ballots during the blackout period are political parties, candidates and representatives of the various ballot issues or questions. The preferential treatment offered to these “interested parties” is an affront to the public policy underlying CORA. These citizens are no more “interested” than any other citizen in Colorado. It is contrary to all good public policy to allow special treatment to some at the expense of everyone else.

Unintended Consequences

The very real possibility of overlapping instances of the blackout period specified in HB 1036 exacerbates the problem by leaving very few times in a calendar year that an ordinary citizen may have access to ballots. For example, there are 4 scheduled elections in El Paso County in 2012 (April 3, May 8, June 26 and November 6). The blackout periods for each of these elections overlap to create almost 9 months total in 2012 where these public records would be accessible only to “interested parties” under HB 1036.

County Clerks Deserve the Same Extension as Legislators in Session – Not More

We agree with the principle that, to the extent that CORA requests during an election period are a burden on the election officials during an extremely busy period, an extension of time to respond to a CORA request may be justified. For instance, CORA currently allows a 10-day extension for requests made to a legislator in active general assembly session – arguably an equally busy time period. Nothing about an election, however, justifies a 90-day blackout period, a cure that far exceeds the pain, and which operates at the expense of the public and the policy of open records.

There Was No Chance to Debate this Major Policy Shift

Various individuals and organizations attempted to bring these concerns to the attention of the sponsors of SB 12-155. After being laid over in Senate Committee for weeks with no attention, SB 12-155 passed the Senate with virtually no floor debate on Friday May 4, passed the House Committee on State, Veterans and Military Affairs without real notice or debate last Tuesday, and then died as a consequence of that evening’s recess. It was then resurrected as part of the rescue operation last Wednesday when it was grafted into HB 12-1036. At no point in this process was there a thoughtful and reasoned public discussion or debate on the provisions of this bill or consideration of reasonable alternatives to the abridgement of rights that is represents.

For all these reasons, we respectfully request that you not allow HB 12-1036 to become law in Colorado. If enacted, it will unnecessarily restrict Colorado citizens’ right to election information at exactly the time when that information matters most, namely, before the election is certified. This is wholly contrary to Colorado’s established principles of open and transparent government.

Thank you for your consideration.

[ Image of Colorado Gov. John Hickenlooper via Wiki Commons ]

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“I’m not surprised by the outcome at all,” said House bill sponsor Mark Ferrandino, D-Denver, after the hearing. “We saw the end coming when [House] Speaker Frank McNulty assigned it to this committee, known as the Speaker’s kill committee.

“We had a majority in the House and the bill passed with a solid majority in the Senate. We just wanted it to enjoy the same vigorous debate on the House floor that it received in the four House committees where it appeared this year,” he said.

Republicans over the last week and in the committee hearing today said Democrats were playing politics with the bill, dragging out its introduction in the House and introducing it in an election year to place pressure one way or another on Republicans. Primary opponents could run against an “aye” vote, they say, and general election opponents could run against a “nay” vote.

“That’s just not true,” said Ferrandino. “We didn’t play politics. We introduced this bill to help families.”

He said he wasn’t sure what he would do differently given the standoff in the House that ended in the bill’s death.

“We can just help make sure that next year there continues to be a pro-equality majority but that leadership in the House won’t undermine that majority. We can work and organize from now till November to change that leadership.”

Republicans control the House this year with a one-seat majority. Most analysts believe that the new legislative district lines drawn last year have made it very likely that Democrats will control both chambers of the state legislature next year.

Uphill battle

Gay-rights organization One Colorado, the main activist group lobbying over the last two years for the bill, told the Independent it was seeking out members of the State Affairs committee today to talk about civil unions. Spokesman Jace Woodrum said it was “an uphill battle” and that the group “wasn’t confident” they could win over a single necessary Republican vote on the nine-member committee. Woodrum said they were focusing efforts on Rep. Don Coram, R-Montrose, a personally sympathetic figure who nevertheless has been politically opposed to gay rights.

“I’m the proud father of a son who happens to be gay… but I also represent 75,000 constituents in southwest Colorado,” Coram said before voting against the bill. He referred to the ballot box votes in 2006 that defined marriage in Colorado as a union between one-man one-woman and that rejected civil unions for same sex couples.

“I have a lot of friends in the gay community but what you’re asking me to do here is to invalidate the vote of the people.”

Coram said he thought the gay community was being used as “a political pawn” by Democratic lawmakers.

“They controlled the governor’s mansion and both chambers of the legislature for four years. Why didn’t they pass it then. Why did they wait until we had a divided legislature? [Gay Coloradans] deserve respect but I feel an obligation to the voters I represent.”

Even as the proceedings got underway, the mood in the Old Supreme Court Chamber where the hearing was being held didn’t bode well for civil unions supporters. Opponents lined the walls and filled the seats, a departure from recent hearings on the bill, where opposition support seemed thin.

What’s more, Republican lawmakers seemed to be running away from the bill even as leaders waged war against it in the press.

An hour after the special session launched, House Speaker Frank McNulty, R-Highlands Ranch, talked to the capitol press corps about the “gay marriage” politics being pushed by the governor. As the State Affairs Committee hearing got underway in the afternoon, Rep. Kevin Priola, R-Henderson, a one-time civil unions supporter, distanced himself from the bill on Twitter, writing that it was a “poke in the eye” for traditional marriage.

‘A fair hearing’

McNulty had assigned the civil unions legislation to the hardline State Affairs Committee in order to finally end the drawn-out battle over the bill. During the regular session, it had passed with strong bipartisan support in the Democratic-controlled Senate and it passed with bipartisan majorities through three Republican-controlled House committees.

In the face of the bill’s unlikely progress and as key Republican primary campaigns heated up, McNulty seemed desperate. He had publicly promised a “fair hearing” for the bill on a number of occasions but in the end seemed determined not to let that happen.

On the next-to-last day of the session, the House Appropriations Committee passed the bill and sent it to the main chamber for debate, despite stalling efforts led by Colorado Springs Republican Rep. Bob Gardner.

As many as eight Republicans in the House, however, reportedly were ready to vote in favor of the legislation and three of them allied with Democrats to halt a McNulty-orchestrated Gardner-led filibuster intended to run out the clock and kill the bill Tuesday night.

When the pro-civil unions bipartisan bloc moved to end the filibuster, House leaders cut off debate and called a two-hour recess. Nearly 40 bills, including civil unions, died as a result, leading Hickenlooper to call for the special legislative session aimed at addressing the major bills left for dead in the wake of the historic House impasse.

Gay marriage versus civil unions

At the hearing Monday night, opponents of the bill mostly argued that the bill was a step on the road to gay marriage and that “traditional marriage” was the best arrangement in which to raise children.

Carrie Gordon Earl from Focus on the Family said the bill would lead to lawsuits. Once civil unions laws pass, gay marriage supporters file discrimination suits, she said. The financial costs of those suits should be included in the debate.

“It cost $10 million to defend California’s traditional marriage amendment,” she said. “Do we have that kind of money? What programs will the Colorado legislature cut to pay for such a lawsuit?”

Supporters of the bill mostly argued for equal rights. They said children thrive in two-parent loving homes, regardless of the sexual orientation of the parents, and that LGBT people endure soft and hard legally-sanctioned discrimination all the time.

“We say we’re ‘designated beneficiaries’ but people don’t even know what that means,” said Anna Simon, sitting next to her partner Fran. “People think that just means she’s the one I leave things to after I’m gone. But she’s the one I want to share my life with.”

Ferrandino, one of several openly gay lawmakers in the state, was eloquent but subdued in his closing remarks.

“We’re just asking to be treated equally in our state,” he said. “We’re not asking anyone here to say that being gay is OK. The fact is, we don’t have the same access to the laws that everyone else here does. It doesn’t seem democratic. [It doesn't seem] to uphold the spirit of our country.”

[ Top: Denver Rep. Mark Ferrandino; bottom: Montrose Rep. Don Coram by TCI ]

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That additional flexibility will allow local communities to protect themselves from wildfires, ski areas to expand and coal mining companies to construct venting for methane in the North Fork Valley.

Many residents oppose the Colorado rule, saying it opens too much of the state’s best backcountry to coal mining, drilling, and other large-scale activity. The state rule, they argue, is unnecessary after the 10th Circuit Court of Appeals upheld the 2001 National Forest roadless rule earlier this year.

Colorado is unique, supporters of the state rule say, and deserves its own rule.

A map of the Colorado roadless rule (via the U.S. Forest Service)

“The new Colorado roadless rule achieves a responsible balance between the development of our public lands and the conservation of Colorado’s backcountry,” said Gaspar Perricone, co-director of Colorado-based Bull Moose Sportsmen’s Alliance. “The protections offered under this new rule will ensure the conservation of pristine habitat and robust fish and game populations that have made Colorado’s public lands a destination for generations of sportsmen.”

The Colorado rule was deemed the preferred alternative in a final Environmental Impact Statement that was announced this morning in Denver’s City Park.

“The new rule represents a characteristically Colorado achievement,” Gov. John Hickenlooper said. “The rule adds landmark protections to millions of acres of our state’s spectacular national forests by incorporating the diverse views of people and businesses across Colorado. The rule enhances all that makes Colorado special while at the same time providing a measure of flexibility that supports local economies and ensures communities can take steps to protect themselves from threats of wildfire.”

Forest Service Chief Tom Tidwell said when the new rule is finalized it will increase protection for Colorado’s roadless areas “while providing flexibility in management to address the state’s interests.”

The new rule has more protections than the 2001 version, including the designation of 1.2 million acres as “upper tier” that will be managed with an increased level of protection for critical wildlife populations and quality wildlife habitat, its supporters say.

There are 363 roadless areas across 4.2 million acres throughout Colorado located in eight national forests that would now be managed under the Colorado roadless rule.

From July 2006 to April 2011 there were five public comment periods resulting in more than 310,000 comments from citizens nationwide. The rule will be finalized a minimum of 30 days after the Final Environmental Impact Statement is published in the Federal Register.

“The rule announced today is an improvement over previous Colorado proposals,” said Ted Zukoski, the Denver-based attorney for Earthjustice. “But the Colorado Rule still contains a loophole that allows coal companies to bulldoze roads on 20,000 acres of roadless forests and meadows, and it permits logging in remote areas far from communities. The Colorado rule leaves nearly three million roadless acres vulnerable to more road-building than was allowed under the 2001 national roadless rule. So taken on balance it is a step in the wrong direction.”

U.S. Sen. Mark Udall, D-Colo., sent a letter to President Obama last week urging him to quickly approve the Colorado rule to alleviate uncertainty for communities and businesses.

“Past delays have led to uncertainty for local businesses and communities, and this should help provide some stability going forward,” Udall said Wednesday. “This is a great example of a very thorough process, where thousands of Coloradans and stakeholders came together to work out a framework that makes sense for Colorado. I look forward to taking a closer look at the rule being published today, and to ensure its future implementation continues to benefit Coloradans.”

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There were 516 spills in 2011 but the Colorado Oil and Gas Conservation Commission (COGCC) only assessed five fines, according to the report that Earthworks released today.

“The COGCC’s mission is to foster responsible oil and gas development by balancing drilling with protection of landowners, public health, and the environment,” Gwen Lachelt, the director of Earthworks’ Oil & Gas Accountability Project, said in a prepared statement. “Right now, the COGCC’s rules, like its mission statement, are just empty words on a page. There is no balance here.”

Western Slope residents took to the X Games in Aspen this winter to promote stronger rules for oil and gas drilling in Colorado. (Photo by Eric Allen)

“There is always room for improvement in anything that we do,” Colorado Department of Natural Resources spokesman Todd Hartman said on behalf of COGCC. “At the same time, the issues addressed in the report today are not simple. We are and will continue to be aggressive in our enforcement when operators take actions that pose significant threats to the environment and public health.” COGCC’s staff, he added, “works diligently, responsibly and effectively to ensure protection of the public and environment from any potential impacts of oil and gas development in Colorado. We enforce the most comprehensive set of oil and gas regulations in the country, including, beginning April 1, the strongest and most transparent hydraulic fracturing chemical disclosure rules yet adopted in any state.”

The Earthworks report comes amid heated debate about whether local governments should be able to make their own laws regarding oil and gas drilling. Competing bills — one introduced by a Democrat to empower local governments and another one introduced by a Republican to solely empower COGCC — died at the state capitol. Gov. John Hickenlooper recently convened a task force to “help clarify and better coordinate” the regulatory jurisdiction between state and local governments.

The task force’s findings are due April 18.

Boulder County, Longmont and Colorado Springs have temporarily halted drilling activity. Commerce City, Erie and Aurora, Arapahoe County, Douglas County, Elbert County, El Paso County and Huerfano County are vying for their own regulations.

The proliferation of hydraulic fracturing, or “fracking,” is fueling much of the community concern.

The U.S. Environmental Protection Agency is studying the risks that fracking poses to drinking water after complaints have been made in Colorado, Wyoming and other states.

This week the University of Colorado-Denver School of Public Health announced that an analysis of residents in Garfield County living within a half-mile of oil and gas fracking operations found they have been exposed to air pollution five times above the federal hazard limit.

U.S. Reps. Diana DeGette and Jared Polis, both Democrats from Colorado, have asked President Obama to strengthen environmental and public health standards to protect against fracking.

“COGCC’s inadequate performance shows why citizens need to have federal standards, as well as state regulations,” Earthworks’ policy director Lauren Pagel said. “In Colorado’s case, state regulation means inadequate regulation, and therefore, irresponsible development.”

She recommended that COGCC increase its inspection staff, standardize and publicize inspections, and increase fines for violations.

COGCC has doubled its staff size over the past seven years during hard economic times, responded Hartman, and the agency will hire an additional seven people, including two more inspectors, over the next fiscal year at a time when government agencies continue to cut budgets.

Moreover, COGCC’s website is “perhaps the most open and informative in the country, with wholesale public access to documents associated with complaints, inspections and alleged violations – as well as all follow-up documents that follow from those,” Hartman noted. “We publish updated statistics monthly on a wealth of material, including violations, complaints, spills, remediation and inspections.”

Still, critics remain.

Last month, 18 conservation and citizen activist groups questioned the ties between industry and regulators at the COGCC and asked Hickenlooper to improve the state’s oversight.

The Earthworks report is just the latest to question Colorado’s ability to regulate the energy industry.

The U.S. Nuclear Regulatory Commission last week criticized the Colorado Department of Public Health and Environment for its oversight of radioactive materials. State officials strongly defended their processes and called the Nuclear Regulatory Commission’s comments “unprofessional.”

The governor signed an executive order Wednesday to create an 11-member task force “to help clarify and better coordinate” the regulatory jurisdiction between the state and local governments over oil and gas operations. He asked the task force to report its recommendations and findings to him, the speaker of the state House and president of the state Senate by April 18.

The move follows heated debate at the capitol, where a Republican senator proposed empowering the state with sole regulatory authority over drilling. The proposal, HB 12-088, died in the Democrat-controlled Senate. A competing bill, introduced by a Democrat, would have assigned oil and gas regulatory power to local governments. It was killed in the GOP-controlled House.

Drilling in suburbia.

“County land use regulations, ordinances and charter amendments empowered by the Colorado Constitution and upheld by the courts here and in New York, are the only means left for people to protect their communities from the excesses of an abusively powerful industry,” said Ceal Smith of the newly launched Coalition for a Clean Colorado.

“Two weeks ago, thousands of citizens spoke firmly against HB 12-088 and in favor of local regulatory authority over oil and gas activities. The governor’s executive order on fracking is a blatant attempt to circumvent the will of the people,” Smith said. “The communities most impacted have no voice or representation whatsoever on the governor’s hand-picked task force. We are frankly shocked by this autocratic assault on our democracy and community rights.”

The state task force will be chaired by Mike King, executive director of the Colorado Department of Natural Resources, and it will include representatives from the Colorado Department of Local Affairs, the Colorado Oil and Gas Conservation Commission, the Board of Directors of Colorado Counties Inc., the Colorado Municipal League, the Colorado Petroleum Association, the Colorado Oil and Gas Association, Colorado Conservation Voters, the Colorado House of Representatives, the Colorado Senate, and the Colorado Attorney General’s Office.

“There are two slots for industry trade associations, but there is no place on the task force for a single conservation organization with on-the-ground expertise in the effect of drilling on local communities, air and water quality, fish, wildlife, noise and dust levels,” said Kate Zimmerman, the National Wildlife Federation’s senior policy adviser on public lands.

Tisha Schuller, president and CEO of the Colorado Oil and Gas Association, had a different take.

“I’m glad that we will have the opportunity to have a substantive discussion about regulation of the oil and gas industry in Colorado and the roles of various jurisdictions,” she told the Colorado Independent on Thursday. “For industry, it is not tenable to expect Colorado to keep attracting business investment with more than a dozen cities and counties looking at unique regulations. We commend the governor and the speaker for convening this task force and look forward to participating.”

Hickenlooper called the creation of the task force “an important step to better define state and local jurisdiction over regulatory structures as Colorado’s oil and gas industry continues to grow … We expect these efforts to also help foster a climate that encourages responsible development and enhances existing cooperation and coordination between state and local government.”

The governor caused consternation among Colorado’s conservation community recently when in a radio advertisement for the Colorado Oil and Gas Association he said, “We have not had one instance of groundwater contamination associated with drilling and hydraulic fracturing.” More than a dozen environmental groups wrote him a letter to say his statement was misleading.

“Contrary to the governor’s COGA statement, the Colorado Oil and Gas Conservation Commission’s own database documents over 1,000 oil and gas spills that have impacted groundwater since 2008,” Smith said. “These and other chemical releases legalized through a broad system of industry exemptions have already impacted the health and safety of Colorado’s communities.”

Concerned about the effects hydraulic fracturing might have on residents, Boulder County, Longmont and Colorado Springs have temporarily halted drilling activity. Commerce City, Erie and Aurora, Arapahoe County, Douglas County, Elbert County and El Paso County have all either considered or are considering enacting their own drilling laws.

The task force has been ordered to examine setbacks of oil and gas facilities, floodplain restrictions, protection of wildlife and livestock, noise abatement, operational methods, air quality, dust management, traffic management and other impacts.

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Senate Bill 88 would have bestowed omnipotent oversight of the industry to the Colorado Oil & Gas Conservation Commission and precluded cities and counties from making their own rules on how drillers should behave on their lands. The Senate Local Government Committee defeated the bill 4-1.

A few dozen denizens from the Front Range showed up to oppose the proposed legislation.

Drilling in suburbia is becoming a more common sight in Colorado.

Backers of the bill argued that local regulations will drive up expenses and deter drillers from coming to Colorado. Republicans and even some Democrats, notably Gov. John Hickenlooper, contend the state should have final say on oil and gas drilling rules to avoid confusing, patchwork regulations.

Ted Harvey, R-Highlands Ranch, sponsored Senate Bill 88.

How to rein in and coexist with the oil and gas industry is becoming a growing challenge for many residents in Colorado. Drills aren’t just spinning through the earth in the state’s remote, rugged regions anymore. Increasingly, they are boring holes in suburbia to get their fossil fuel fix.

Industry’s preferred method of extracting natural gas and oil through the flushing of water, sand and chemicals into the earth — known as hydraulic fracturing or “fracking” — is causing widespread concern. Residents, environmentalists and lawmakers worry fracking could contaminate water.

“From Colorado Springs to Boulder County, cities and counties across Colorado have passed measures against fracking,” said Sam Schabacker of Food and Water Watch. “This bill is an attempt by the oil and gas industry to strip local governments of what little power they have to protect their citizens and water resources from the harms posed by fracking.”

U.S. natural gas production in 2011 reached its highest level, 5.3 million cubic feet, since the Bureau of Land Management started tracking it in 1984. In Colorado, there are 4,380,275 acres of BLM land leased for drilling but just 1,467,839 acres, or about 33.5 percent, are in production.

The trouncing of Senate Bill 88 is the latest oil and gas measure to sputter in the state legislature.

Democrats introduced a bill that would have required hydraulically fractured oil and gas wells to be set back at least 1,000 feet from any school or residence. But a legislative committee defeated the setback bill along with a bill that would require closed-loop tank systems in place of open fluid pits.

CORRECTION: In the original publishing of this story, it was mistakenly reported that outgoing Colorado Oil & Gas Conservation Commission Director David Neslin favored Senate Bill 88. Before the bill was introduced, Neslin told the Colorado Independent: “The state has decades of experience regulating [oil and gas] activity. Local governments have little such experience.” But he made that comment in reference to another bill. A spokesman clarified Neslin did not support Senate Bill 88.

“I’m not going to go out and say the sky is falling and that climate change is happening, but I’m very concerned about the risk of climate change,” Gov. John Hickenlooper told a coalition of 22 southeastern Colorado counties at a public meeting last week, as reported by the Pueblo Chieftain.

The governor’s comments echo some of the same language he used at the Colorado Environmental Coalition’s “Rebel With A Cause” gala in May 2009, except then his views were a lot more clear.

“I’m not saying that the sky is falling. I’m saying that clearly the climate is changing, clearly mankind’s activities are causing it,” Hickenlooper said back then.

Colorado Gov. John Hickenlooper in Yuma.

Now, Hickenlooper clarifies that he is concerned about the risk of climate change but he deliberately stops short of acknowledging climate change is actually happening.

Even before he ascended to the governor’s office, there were questions as to whether Hickenlooper wears flip flops to the planet’s climate change debates.

In February 2010, at the National Western Mining Conference & Exhibition in Denver, Hickenlooper raised eyebrows when he said, “I don’t think that the scientific community has decided with certainty that climate change is as catastrophic as so many people think.”

It was a surprising remark that caught many people off guard, including Beth Conover, the author of “How the West Was Warmed.” Conover tweeted: “What the … ?” Hickenlooper wrote the forward for her 2009 book in which he called climate change “one of the greatest challenges of our time.”

Whether the governor now doubts how much the West has warmed is unclear. But rising sea levels, warmer temperatures and below-average snowpack are unmistakable to most scientists. And while he no longer comes out and says it is happening, Hickenlooper is preparing for climate change.

In an effort to conserve water, Colorado’s governor said Americans need to get rid of nonnative Kentucky bluegrass from their yards and that industry needs to develop more water-efficient toilet flushing. As mayor of Denver, he swapped out energy-guzzling bulbs in traffic lights with more efficient ones. He introduced biodiesel into city fleets, successfully lobbied for mass transportation solutions, implemented an ambitious recycling program at Denver International Airport and praised urban infill. In his speech last week in Pueblo, Hickenlooper reportedly mentioned he has been in discussions with the CEO of Kum & Go about possibly facilitating a low-interest government loan so that the convenience stores could offer compressed natural gas as an alternative to gasoline.

When it comes to climate change, Hickenlooper may walk the walk. But he no longer talks the talk.

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House Bill 1176 (pdf), which has been assigned to the House Local Government Committee, is sponsored by Democrats Matt Jones, Dickey Lee Hullinghorst, Sue Ryden, Nancy Todd and Roger Wilson.

“The [Colorado Oil and Gas Conservation Commission] must require setbacks of at least 1,000 feet from any school or residence but allow a surface owner who is not located in an urban area to request a shorter setback than would otherwise apply,” reads the bill’s summary.

Current COGCC rules call for setbacks of 150 feet in rural areas and 350 feet in urban areas, but Jones says that’s not far enough away in densely populated Front Range areas where hydraulic fracturing, or fracking, is an essentially industrial process close to homes and schools.

“If three football fields from a school is good enough for medical marijuana, it’s good enough for oil and gas fracking,” Jones told the Colorado Independent earlier this month, comparing drilling setbacks to pot shops near schools. Jones also would like to see counties and municipalities take a more active role in regulating oil and gas drilling.

Republican state lawmakers Ted Harvey, Kevin Grantham and Scott Renfroe have introduced a bill aimed at stopping what even Democratic Governor John Hickenlooper has called a potential “patchwork” of local regulations overseeing stepped up drilling activities.

“The bill specifies that the regulation of oil and gas operations is a matter of statewide concern, the Colorado Oil and Gas Conservation Commission has exclusive jurisdiction to regulate oil and gas operations, and local regulation of oil and gas operations is preempted by state law,” reads the summary of Senate Bill 88 (pdf).

With regard to setbacks, COGCC director David Neslin told the Colorado Independent that such a bill is unnecessary because the vast majority of oil and gas wells already comply.

COGCC Director David Neslin

“Outside of Weld County – which is a different situation because you’ve had oil and gas and residential development growing up together there over the past 30, 40 years – in the balance of the state 90 percent of the wells are 1,000 feet or more from the closest building,” Neslin said.

Mike Chiropolos, lands program director for Western Resource Advocates, said setbacks are a valid issue with oil and gas booming in the Niobrara Formation beneath the state’s more densely populated Front Range.

“Even if it’s 90 percent, what about the 10 percent?” Chiropolos said. “You don’t want to leave those folks out in the cold. One Colorado family getting sick, one Colorado resident getting sick or having an avoidable negative experience because of a well being unacceptably close to a home is one too many.”

He added that new directional drilling techniques allow wells to be drilled 1,000 feet or even a quarter of mile away from homes and schools as opposed to predominantly vertically drilled wells in the past.

HB 1176 would require that “best management practices for new technologies be established by rule prior to use of the new technologies.”

As for greater local control of oil and gas drilling, Neslin disagrees with Jones, who recently told David Sirota on 760 AM in Denver: “If you want to not have a patchwork, you need to look at subdivision home building, cement plants, power plants. All of that is regulated by local governments. Local governments do land-use control all the time. This fits into that.”

Neslin recently told the Colorado Independent: “I don’t think it’s in the public’s interest or the state’s interest to wind up with a patchwork quilt of different regulatory regimes. I don’t think we want to Balkanize the regulatory program in that way.”

He added that oil and gas drilling is very different from other land uses.

“I would respectfully disagree with the representative that oil and gas wells are just another development activity like a subdivision or a cement plant,” Neslin said. “The state has decades of experience regulating [oil and gas] activity. Local governments have little such experience. So I just think there’s a fundamental difference there.”

But a bill like SB 88 blocking counties and municipalities from exercising any land-use control over drilling activity goes too far, says National Wildlife Federation attorney Michael Saul.

“That was basically the rule that the oil and gas commission passed in 2003 and then the Colorado Court of Appeals struck down in the Board of County Commissioners of La Plata County versus COGCC case,” Saul said. “It sounds to me like [SB 88 is] just an attempt to rewrite that decision.”

Saul says La Plata County in southwestern Colorado, where British Petroleum has been active for decades, has some of the most stringent local land-use regulations overseeing oil and gas drilling. There, the operator seems to have figured out how to work with county regulations without state preemption becoming an issue, he says.

“We’ve got 20 years of case law interpreting the existing state of the law on preemption and counties have learned pretty well how to follow that law,” Saul said. “Operators have been successful in navigating the permitting systems in those counties that have done so.

“Certainly there’s been a lot of successful drilling in La Plata County, which is arguably the most comprehensive [local] regulator.”

The local control question will likely continue to be litigated, but the issue of setbacks – which some critics say the COGCC punted during revision of the oil and the regulations in 2007-08 – will be the subject of a new round of stakeholder meetings.

“[Neslin] announced to the commission [last week] that COGCC will be convening stakeholder meetings on the issue of setbacks,” Colorado Department of Natural Resources spokesman Todd Hartman said.

“This is designed to get facts on the table, listen to all sides and determine whether changes are necessary or not. The meetings won’t begin with a preference for change or no change, but to educate all parties and see what adjustments — if any — to make.”

Rep. Scott Tipton

Colorado Governor John Hickenlooper, on the other hand, issued a statement after the State of the Union address to say he was “encouraged to hear the President talk so much about clean energy, as Colorado is leading the nation when it comes to renewable energy research and development. Many of the new jobs the President talked for this industry will be created in Colorado – and we are ready.”

Despite his stance on the Keystone XL oil pipeline, Obama touted the millions of new acres for oil and gas exploration that have been approved under his tenure and directed his administration “to open more than 75 percent of our potential offshore oil and gas resources.” American oil production is the highest it’s been in eight years. “That’s right — eight years,” he said to applause in the chamber.

But noting that the United States has only 2 percent of the world’s known oil reserves, Obama pledged to end subsidies for oil companies and instead “double-down” on “an all-out, all-of-the-above strategy that develops every available source of American energy.”

In last year’s State of the Union speech, the president also emphasized domestic energy production but never climate change. This year, he briefly acknowledged the problem.

“We can also spur energy innovation with new incentives. The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change. But there’s no reason why Congress shouldn’t at least set a clean energy standard that creates a market for innovation. So far, you haven’t acted. Well, tonight, I will. I’m directing my administration to allow the development of clean energy on enough public land to power 3 million homes,” said Obama, adding the Department of Defense will also purchase enough capacity to power a quarter of a million homes a year.

“Clean energy,” however, means different things to different people. In the past, the White House has used the term to include nuclear power, natural gas development and other controversial fuels.

Obama paid special attention to natural gas, noting that America has an almost 100-year supply and that his administration “will take every possible action to safely develop this energy.” He estimated natural gas could create more than 600,000 jobs in the next decade.

U.S. Rep. Diana DeGette, D-Colorado, applauded what she heard in the State of the Union.

Rep. Diana DeGette

The president’s pleas for Congress to rise above partisanship were heard loud and clear by U.S. Senator Michael Bennet, D-Colorado, who, after the State of the Union, remarked “… One place we can find common ground is on the responsible development of clean-burning natural gas, which Colorado has in abundance, as part of a transition toward clean energy and away from overseas oil.”

U.S. Rep. Jared Polis, D-Colorado, also issued words of encouragement for Obama’s speech.

“President Obama tonight outlined not only a blueprint for an economy built to last but an action agenda that reflects what Coloradans have been telling Congress to address for months: create jobs and strengthen the economy; reform education for our children and economic future; make college more affordable; invest in clean renewable energy to make us energy independent; and ensure that all Americans have a chance to work hard and succeed,” Polis said. “These are all practical, common sense solutions to our most pressing challenges that Congress should embrace, and I look forward to working with Democrats and Republicans this year to make progress for Colorado and America.”