Last-ditch fracking legislative push doomed from the start

 
DENVER – State lawmakers here working feverishly in the last days of the legislative session failed to come up with a bill that could ease the high tensions building for years around boom-time drilling and fracking in Colorado, tensions that were never likely to be eased at the capitol.

There were draft versions and rumors and much speculation, but the bill never came. There was hope that compromise-seeking Governor John Hickenlooper would call a special legislative session to hammer out and pass a bill. But that will not happen, according to Senate President Morgan Carroll, because there is no bill. And there will be no bill because the issue of where drillers can continue to drill in Colorado and run their tens of thousands of trucks and store and dispose of their tens of millions of gallons of oil and fuel and flow-back water and fracking fluids will have to be decided by the voters. It was always going to be that way.

On the ground

Over the last two years, thousands of new wells have been drilled on the front range in Colorado, where the lion’s share of the state’s population lives in several well-established cities and in new suburban developments sited over deep underground rock formations that contain coveted oil and gas. There have been lots of jobs created and millions in profits pulled down in the boom.  Hotels are filled with migratory workers. Truck traffic has clogged neighborhood streets. Drill pads lined with squat, tan-painted storage tanks are visible to anyone with eyes to see them. Frackers have gone to work next to schools and creeks and running and biking tracks. There have been spills and explosions and flooded overturned drifting tanks. Drillers set up a fracking tower illegally close to a house across the road from Colorado Congressman Jared Polis’s Loveland getaway, a green-rolling site that’s just a half-an-hour bike ride from a line of Rocky Mountain foothills behind which the sun slowly dips to brilliant effect most days of the year.

In 2012 and 2013, five cities in the northern front-range passed bans or moratoriums on fracking – the “hydraulic fracturing” extraction method where water, chemicals and sand are blasted down drill holes miles into the earth to break up rock and set loose oil and gas. The state sued one of those cities, Longmont, twice, and has threatened to join suits targeting some of the others. Authorities in Denver, including Hickenlooper, have argued that state law overrides local laws on mineral rights and that the drilling industry would be hobbled by a patchwork quilt of local regulations. The Longmont cases are scheduled to be argued this summer, just as the midterm election primary season comes to a head. Legal precedent seems to bolster the case being made by the state, but Colorado is also a “home rule” state, where 96 cities and towns have the constitutional right to make their own laws and ordinances in regard to local concerns. Four of the five cities that passed fracking bans are home-rule cities, including Longmont. The eyes of the state and the nation will be following the legal twists and turns in the cases.

But citizens here aren’t waiting for a court ruling in the Longmont case. Nearly every week since Colorado’s four-month legislative session began in January, individual citizens, citizen groups and others have filed ballot initiatives with legislative counsel aimed at guarding against threats posed by the drilling industry to property values, quality of life and public health and safety. There are now more than 20 ballot measures approved or on the way to being approved by the state title board that have to do with drilling. Not all of them will garner the signatures it will take to make the ballot. But, if the last two elections in the state are any measure, one or two, maybe three, will make the ballot.

The too-little, too-late, five-day scramble at the legislature — led by Rep. Su Ryden, D-Aurora, and Majority Leader Dickey Lee Hullinghorst, D-Boulder — never had a chance. Residents in the state’s expanding gas patches want change. The oil and gas industry has been preparing for months to battle at the ballot box to retain the status quo, buying up TV air time in enormous blocks and whole sections of the Denver Post. And the “drill baby drill” wing of the state political class was never going to help foster negotiated compromise.

A jaundiced view

Littleton resident Philip Doe, a former Department of the Interior staffer and the main proponent behind the  “public trust resources” ballot initiative cleared by the state’s title board last week, said the legislature was out of its depth.

“That whole horrible last-ditch effort at the legislature, that underlines why we have the ballot-initiative process,” he said. “They can’t solve this problem. They have proven unable to stand up to the industry.”

Doe says the independence-minded “home rule” Mountain West tradition means nothing if it doesn’t include the ability to keep drilling rigs out of city residents’ backyards and 10,000-gallon tanks filled with toxic and flammable material away from schools.

“What the legislature really needs to be considering,” he said, “is our constitutional right of home rule. If lawmakers had any sense, they would have a full hearing on how they have subverted constitutional guarantees on home rule with the preemption statute. This is never going to end amicably until the legislature admits its lawlessness.”

Doe punctuates his take on state lawmakers with curses and epithets. He has a distinct style that skirts on the edge of gallows humor. But his jaundiced view is widely shared among activists in the gas patch cities, a group that increasingly includes moms, school teachers, grocery store checkers, baristas and high school kids. None of them were going to be content with the Ryden and Hullinghorst proposal, which in draft form at least, seemed to leave the state with much the same power it has now to preempt local zoning laws. No, the activists are looking forward to the ballot battle this year, buoyed by the success of the grassroots-initiated bans and moratoriums on urban drilling that passed in the last two elections, despite heavy industry spending against them. They say a statewide initiative giving explicit control to local authorities would mark a whole new chapter in the debate and give local-control advocates the upper hand.

Analysts expect ballot initiative campaign spending to reach well into the tens of millions of dollars.

Fighting to a draw

Rick Ridder is a longtime political consultant with RBI Strategies in Denver and a spokesman for Coloradans for Local Control, the well-funded group backed by Congressman Polis that lawmakers and Hickenlooper were attempting to appease last week with the failed bill. Ridder told the Independent in April that the election-year partisan narrative people were spinning about the ballot initiatives filed by his group and others in favor of local control won’t stick.

“They’re painting this effort as a ‘Democratic inside job’ or something. This isn’t about Democrats and Republicans,” he said. “None of the people talking about this  have looked at voting behavior in the five cities that have passed anti-fracking votes. Look at Broomfield. The voters there elected a conservative Republican mayor and in the same election passed the city-wide fracking ban. It was Republican voters there that put that ban over the top.”

Ridder echoes thinking that has been missing in much of the coverage of the initiatives in recent weeks, where politicians, pundits, bloggers and breaking-news reporters have painted colorful stories of backroom deals, party-splitting personality showdowns and “radical” job-killing statewide drilling bans.

Colorado State University Political Scientist Professor Kyle Saunders says midterm elections typically fuel this kind of hyper-partisan messaging around issues.

“[Non-presidential] midterm elections are ‘mobilization’ elections, where partisan efforts are more focused on mobilizing their teams as opposed to persuasion and activating the ‘center’ of the electorate,” he said. “Whoever gets their ‘side’ to turnout in greater numbers, the better chance they have of winning.”

For weeks the narrative among politics watchers is that Colorado Democrats want to avoid a grand battle on drilling this year because it will draw even greater than usual amounts of spending from oil-and-gas interests that will help Republican candidates and hurt Democratic candidates, like Hickenlooper and U.S. Senator Mark Udall, who are both up for reelection.   

But Saunders doesn’t see the local-control issue as that rare kind of issue in the right kind of year that can determine the course of an election by overwhelmingly benefiting exclusively Democrats or Republicans.

“Even when a particular issue like this becomes dominant,” he said, “the ‘sides’ on the issue fight what looks to be a draw, and in the end change few minds.”

Already, it seems clear, the money will pour in equally in support and in opposition to the initiatives.

Congressman Polis is one of the wealthiest members of Congress and he is ready to spend on local control. Environmentalist San Francisco billionaire Tom Steyer also has made no secret that he’s interested in spending here.

Coloradans for Responsible Reform, backed by prominent Democrats and Republicans, recently announced Monday it has raised roughly $770,000 to spend to defeat any local control initiative. A group called “Protecting Colorado’s Environment, Economy and Energy,”  already has $2 million in the bank donated from oil-and-gas companies, the same main backers of a group called Coloradans for Responsible Energy Development, which has so far waged an estimated $2.4 million pro-drilling messaging campaign in the state.

But Colorado politics is defined by its one-third unaffiliated voter bloc. As Ridder is quick to point out, arch-conservative El Paso County voters supported the 2012 ballot initiative that legalized recreational pot, and  Coloradans for decades loved party-switching officeholder Ben Nighthorse Campbell. Saunders says it may be difficult for the campaigns and their supporters to succeed in painting the local-control issue in the kind of simple strokes that might move independent voters – many of whom now live in a gas patch — to only view residential drilling within the tired two-party electoral politics frame.

“Look, public opinion of Congress is in the toilet,” said Ridder. “Opinion of the state legislature isn’t much better. Coloradans know that what matters most is local government and its power to affect your daily life. What’s right or left about wanting to protect the air you breathe and the earth you tread every day in your community? How is this a Democrat or Republican idea?”

In February, 53 local Colorado officials, Republican and Democrat, from cities across the state sent a letter to Hickenlooper and state lawmakers stating that concerns about drilling were legitimate and not a partisan issue.

“The letter is not about pro-fracking or anti-fracking,” Adams County Commissioner Eva Henry told the Independent at the time. “It’s about frustrations. I mean, who would better know what’s right for a community than the locals? Take eastern Adams County. We don’t have a lot of water there. Fracking takes a ton of water, so I would like to see a closed water system used there for fracking — where the drillers use the same water over and over. This letter is about little regulations like that.

“We’re like this in the West, you know,” she added. “That’s how we do it. We like local control.”

Ridder says the issue won’t be tarred as simply “anti-business” either, another favorite election-year frame.

“That won’t work,” he said. “I would love to see the reaction of Vail Resorts if someone put a fracking tower in view of the ski areas. Tourists from all over the world aren’t coming here to see oil wells and fracking towers.”

[ Colorado gas patch photo by Julie Rideout. ]