Draft local control bill so far fails to launch special legislative session

 
[dropcap]D[/dropcap]RAFT legislation shopped around this weekend that seeks to clarify powers held by state, county and city authorities in Colorado to regulate oil-and-gas drilling has not won full support by the main negotiating parties, and so a special legislative session tentatively scheduled to begin today in Denver has been postponed.

Officials have said for some time that they hoped to make a deal in June. Governor John Hickenlooper weeks ago asked lawmakers to clear their schedules for the beginning of this week. That Friday’s proposal failed to gain the support it needed to launch the session today seems like a significant setback. Although the governor can call a special session any time, sources have said they want to ink a deal before election-year momentum builds and campaign politics steal progress already made and narrow wiggle room in which to find future compromise.

The draft bill sparked frenzied speculation over the weekend that parties had drawn close to a deal after weeks of stops and starts and that the plan for a special session beginning today was on track.

News this morning that the proposal has so far failed to launch the session will please grassroots groups that have led the movement in the state over the past five years to push back against boom-time natural-gas drilling activity. The groups received the six-page proposal this weekend with frustration and anger.

“This bill is arguably worse than the status quo,” said Sam Schabacker, mountain west regional director at Food and Water Watch and a main advocate for local control. He said activist citizens in the ex-urban northern Front Range gas patch where the battle over hydraulic fracturing has grown most heated vehemently oppose the proposal.

“This is worse than doing nothing. The rules it would put into place are not enforceable on a local level. It would continue to rely on the state’s Oil and Gas Conservation Commission to enforce them. Citizens in five cities have rejected that approach as inadequate.”

Over the last three election cycles, citizens in Boulder, Broomfield, Fort Collins, Lafayette and Longmont have voted for bans and moratoriums on hydraulic fracturing, or fracking, the drilling process where millions of gallons of a water-sand-chemical mixture is blasted deep into rock formations to loosen oil and gas. Fracking has proved a bonanza for drillers, opening up new areas for extraction across the state, including in the residential communities that stretch north of Denver to the Wyoming border.

Whatever proposal negotiations in Denver might soon produce is meant to head off more than a dozen ballot initiatives that would skirt lawmakers and ask voters directly to approve more regulatory power for city and county authorities. The Friday proposal was the most complete of any introduced since negotiations began the first week of May, which was the last week of the regular legislative session.

The bill set forth that lawmakers are seeking to “establish the intent… that local government requirements and state requirements over oil and gas operations be implemented harmoniously, to the extent possible.”

That last phrase, “to the extent possible,” suggests the thin line the authors are walking. Yet, in the end, the bill makes plain that state authority will continue to trump local authority in regulating the industry and that municipal fracking bans will never fly.

“The General Assembly confirms that [the state’s Oil and Gas Conservation] Commission has jurisdiction over oil and gas operations as set forth in this article,” it reads.

“A local government requirement that is determined to be an operational conflict [for drillers] is preempted.”

The release of the proposal set off rounds of calls to land-use lawyers in the state. One Denver attorney who asked not to be named was doing research in the passenger seat of his car as his wife drove the family to their daughter’s softball game Saturday.

“The clock’s ticking here,” he said. “There’s an urgency – or maybe I should say panic – to get a handle on how this bill would change the landscape. That’s what we’ve been asked to figure out.”

Parties to the negotiations that led to the draft bill have not included any representatives of the grassroots groups that have pushed for local control.

Close, but not there, yet

It is little surprise that groups like Schabacker’s Food and Water Watch aren’t at the table.

Indeed, the talks were spurred by a series of nine initiatives backed by wealthy Congressman Jared Polis, a Boulder Democrat who represents four of the five towns that have passed moratoriums or bans on fracking. The Polis initiatives came after several grassroots proposals had been introduced, two of which have been approved by the state’s title board. But it was Polis who got the attention of lawmakers and the governor by making it clear he was ready to pour money into signature gathering and advertising campaigns in order to land at least one initiative on the ballot and then win at the polls.

Polis hired RBI Strategies, a top Colorado politics consulting firm, to shepherd the initiatives through the process. RBI staffers led by Rick Ridder and state House Majority Leader Dickey Lee Hullinghorst, also a Boulder Democrat, have reportedly represented Polis in the talks.

On the other side, the concerns of drilling companies looking to avoid additional regulations and inspections and a patchwork quilt of authorities with which to negotiate, reportedly are being presented primarily by Noble Energy and Anadarko Petroleum, two of the companies most active in the state.

It’s unclear whether all of the drilling companies working in the state agreed to the terms of the latest proposal. Division among the oil-and-gas companies on whether to agree to a legislative solution like this one or square off against Polis and the grassroots groups with a multimillion-dollar election-season campaign has been a negotiating sticking point for weeks.

Hickenlooper repeatedly has said he won’t call a special session unless parties to the negotiations have agreed beforehand to support a bill. On Friday, it seemed the drillers and Polis were close to a deal.

“This bill draft reflects the most up to the minute thinking on the issue, and includes input from legislators, the administration and many stakeholders,” wrote Hullinghorst in an email introducing the Friday proposal. “This draft is the closest we have come to an agreement between all the stakeholders at this point and is very encouraging.”

Today, sources close to negotiators confirmed that talks are ongoing.

The talks may continue for some time. Negative reaction from the gas-patch grassroots groups may be a big part of what ultimately slows them down.

The specter of TABOR

Oil company representatives in the talks have lamented the fact that any deal struck with Polis and Hickenlooper doesn’t guarantee citizen initiatives won’t make the ballot or win support from the voters — if not this year then the next, or the next.

And all parties to the negotiations concede that Colorado’s government has been shaped in essential and sometimes galling ways by the ballot initiative process, where all it takes is one success to change the state constitution and where citizens have unlimited tries to succeed. In 2012, citizens voted to legalize recreational marijuana. In 1992, they voted for the Taxpayer Bill of Rights, known as TABOR, a small-government amendment that passed in 1992 after many failed attempts and that constrains the state budget in myriad complex ways, giving lawmakers charged with balancing the budget no end of pains.

Polis said that, if the bill shopped around Friday were passed by lawmakers just as it was written, he would pull his initiatives, according to a Friday afternoon story posted by the Denver Business Journal. Otherwise, he was committed to taking at least one or two of his proposals to the ballot.

But even if Polis took all of his initiatives off the table, that would leave at least the two grassroots ballot measures for the drilling companies to fight.

A proposal like Friday’s, if passed in a special legislative session, would succeed in releasing steam from Colorado’s already hot swing-state election-year politics, but such a proposal is unlikely to spur the proponents of the grassroots initiatives to back down.

Initiative 75, supported by the Colorado Community Rights Network, explicitly grants power to regulate drilling to local authorities.

And Initiative 103, written by former Department of the Interior staffer Philip Doe and Barbara Mills-Bria, would underline the legal responsibility of state officials to protect the environment and seek damages from polluters. It would also make it easier for citizens to sue polluters and it demands that people or organizations pay a legal price for spreading misinformation for profit about the environment and the environmental risks posed by industrial activities like drilling.

’Not even a “hi-ho”’

People close to the negotiations concede that the draft bill released Friday is imperfect, because that’s the nature of the beast. It’s a compromise bill, where no one will get exactly what they want, said a former county attorney who has worked extensively on oil and gas issues.

“It’s the definition of compromise,” he said. “Of course it will have its detractors… I, for one, would love to see it grant local authorities the final say over regulating the industry, but that’s not how our laws have been written.”

He said the bill attempts to do three important things: It would adjust the state’s power to preempt local land-use laws; it grants new authority to local government bodies; and it goes some length to bring missing clarification to the regulatory relationship between local and state authorities. He said that will translate on the ground to a significant change in mentalities among parties on all sides of the issue — among citizens and local lawmakers, state legislators and rule-makers and drillers.

“As long as we have a statutes where the legislature has created authority for the state, well then there has to be a standard. We can’t leave that silent. If it’s silent, as it has been, then it has the effect of invalidating local government power, as it has for the last 20 or more years.

“This bill would go a long way to lifting that ‘chilling effect’ that’s in place now. The bill says explicitly that local governments can go further in regulating oil and gas than does the state. That provides leverage for citizens to get local governments to act. Right now, local authorities often steer clear of any attempt to regulate oil and gas, even when they have the power to do so, because they think they don’t have the power or that the state will step in and there will be lawsuits and so on. In heavily drilled places like Garfield County and Greeley, this will make it clear in everyone’s minds that they definitely can do something about drilling.”

But gas patch activists like Kaye Fissinger, president for Our Health, Our Future Our Longmont, were beyond skeptical. Fissinger had nothing good to say about the draft bill. Hickenlooper has joined two lawsuits against Longmont that aim to lift a ban on fracking city voters passed in 2012. Residents like Fissinger have no faith in the kind of negotiations ongoing in Denver.

“Hickenlooper and his buddies in the oil and gas industry are trying to cut off the movement at its knees,” she said. “We were not at the table. We were not invited. They pick and choose who they want to talk to in the environmental movement.”

“Polis has not consulted with the movement, he hasn’t asked us anything… He has positioned himself as the poster boy for this movement without even a ‘hi-ho’ to the rest of us.”

Laura Fronckiewicz, a leader with Our Broomfield, the group of residents that spearheaded the movement to narrowly pass that city’s fracking moratorium last year, was similarly frustrated.

“The thousands of moms, dads and community members in Broomfield who voted to protect our constitutional rights were not consulted on this proposal. We are adamantly opposed to it,” she said.

Hickenlooper, Polis and many lawmakers in Denver, say regulating drilling is a complex issue best solved by legislation hammered out by trained staff and through compromise. They say ballot initiatives, which are forced by the state’s “single subject rule” to narrow the problem to a single yes or no question, often end in unintended consequences and lawsuits. They dread the onslaught of election-year ad campaigns already scheduled to air that would reduce the issue to radio and TV soundbites.

But Food and Water Watch’s Schabacker said he sees the negotiations in Denver as transparently about politics more than policy and for that reason he believes they ultimately will fail to quell tensions around the issue.

“This backroom deal will backfire because it won’t address the concerns of the 400,000 Coloradans who voted for local moratoriums and bans on fracking. It cements the power of the state to override local control. So it won’t stop the momentum that has been building here and around the state for more control over drilling.”

Schabacker says the people ready to dismiss the local groups and their ballot initiatives haven’t been following events in the gas patch communities.

“I say, let’s let history be our guide on this. The people with all the money have lost on this issue five times — in five votes at the polls — five times in a row. They want to ask about money, I would just say, look at the historical record.

“Let them call the special session,” Schabacker said. “We will do what we have done all along. We’ll mobilize at the grassroots level to let the dealmakers know that this proposed bill is not supported by tens of thousands of constituents — the people who live directly in harms way. They have no option. They don’t have any trust funds, no other homes to go to, so they will do everything they can to protect their food and water and property.”