We admit to feeling a pang of sympathy for the Erie Board of Trustees — not our most common sentiment about this oddly defensive and secretive group — as it tried to come up with a set of fracking regulations that would protect its burgeoning population without provoking the litigious Colorado Oil & Gas Association into yet another lawsuit against a Front Range community.
As Mayor Tina Harris accurately described it, localities such as Erie, with desirable drilling sites over the Niobrara shale formation, are caught between the demands of their growing populations for a little common sense and an antiquated state law that puts the state on the side of an industry that no longer needs its finger on the scale.
When Erie released its proposed rules Aug. 13, they went as far in the direction of common sense as a legal consultant thought possible without provoking legal action by the industry. Rather than require greater separation between drilling rigs and homes than the state’s inadequate 500-foot minimum, which would likely produce a court fight, it offered a fast permitting track if a driller voluntarily agreed to greater separation and other regulations that exceed state rules. It required a more intensive permitting process for companies unwilling to make such allowances up front. Encana, the operator that sparked a revolt in the Vista Ridge subdivision last year with its dish-rattling drilling, negotiated a similar deal with the town in which it accepted larger setbacks at eight pad sites than the state requires. The town trustees approved that deal last week.
It should come as no surprise that the industry is unwilling to give up its considerable advantage over local communities under state law. COGA and Anadarko Petroleum, an oil giant with a market value in excess of $30 billion, notified Erie trustees that they consider the proposed fracking code to exceed state requirements, which they believe are controlling. The cities of Longmont, Fort Collins and Broomfield are already in court defending moratoria or outright bans on fracking. Meanwhile, the state is arguing in those cases for “implied preemption” that would invalidate any local requirements exceeding its own, even when it comes to land-use regulation, traditionally the province of local government.
COGA has won at the district court level in each case, owing to the state’s statutory commitment to “foster” the oil and gas industry. A proposal in the governor’s fracking task force to recommend that the legislature substitute a more neutral word — “administer” instead of “foster” — failed by a single vote to achieve the necessary two-thirds majority, blocked by the oil and gas and building industries.
Modern technology has produced a fracking boom that has changed the landscape rather dramatically since the court examined this issue in two 1992 cases. “Few public policy issues in Colorado have been the subject of more intense debate, discussion and regulatory activity in recent years than the use of hydraulic fracturing in oil and gas drilling,” Longmont noted in its appeal. Two Colorado Court of Appeals panels cited that observation in urging the state Supreme Court to take the cases directly.
The whole purpose of local zoning codes is to separate incompatible uses. The pictures of drilling rigs just beyond the back yards of homes in Erie last year, not to mention the stories of brain-numbing noise, struck many reasonable people as bizarre and inappropriate. Encana was finally forced to shut down its Pratt site when even it couldn’t figure out the source of the excessive noise.
The root of the problem is a collision between the fracking boom and a boom in residential and commercial development in northeast Colorado. There are valid and conflicting private property claims on both sides.
Oil and gas extraction remains an important part of Colorado’s economy, but it no longer dominates in the way it once did. Alexandra Hall, the state’s chief labor economist, told the Denver Post earlier this year that the oil and gas extraction industry, including related services, employs about 28,000 of the 2.5 million Coloradans employed statewide, or slightly more than 1 percent of the state’s employment base.
The plunge in oil prices over the past year has slowed the pace of drilling considerably. The Business Research Division of CU’s Leeds School reported earlier this month that the number of oil and gas drilling rigs operating in Colorado dropped 37 percent, from 68 last year to 43 in the first six months of this year, citing figures from Baker Hughes, one of the world’s largest oilfield service companies.
Twenty-three years ago, in a pair of rulings issued the same day, the state’s highest court struck down a drilling ban in Greeley, citing the industry-friendly state law, but also said localities and the state share joint jurisdiction over land-use regulations — the sort of issues Erie is trying to work out.
A generation later, that court has a chance to forge a new social compact around fracking. State law still seems likely to invalidate bans and moratoria, but there is nothing to prevent the court from rejecting the state’s claim to implied preemption and reinforcing a robust local right to land-use regulation. After all, segregating land uses is at the very heart of local zoning, and technological advances in horizontal drilling have made it possible to locate wellheads farther away from other uses.
The Supreme Court should accept direct referral of these cases, then act expeditiously and decisively to find a middle ground that restores the basic right of towns and cities to determine where various land uses may be located.
—Dave Krieger, for the editorial board. Email: kriegerd@dailycamera.com. Twitter: @DaveKrieger
