Colorado is poised to build a globally competitive clean energy economy that protects our quality of life and magnificent open spaces. Newly seated Gov. Jared Polis ran on a platform committing to an equitable transition to a clean energy economy.
A booming oil and gas industry once largely confined to rural Weld County on the Front Range is marching south towards metro Denver. The industry has now targeted at least a half dozen suburban counties, exposing thousands of families to toxic fumes, fears about water quality, and the edgy experience of living too close for comfort to heavy industrial operations.
The Colorado Department of Public Health and Environment documented 116 fires or explosions at well sites between 2006 and 2015. At least 40 more were reported since that study, including three major incidents in Weld County over a three-week period from Oct. 27 to Nov. 13, 2018. For serious incidents, companies send evacuation alerts to workers within a one-mile radius of the flames.
In April 2017, the fire and explosion resulting from a leaking underground flow line killed a Firestone homeowner and his brother-in-law. On the West Slope, some of the nation’s most-visited National Forests are targeted for thousands of new wells.
Against that backdrop, here are 10 priorities for our newly seated elected officials on oil and gas law and policy in 2019.
First, Colorado should authorize towns and counties to exercise land use and zoning authority over oil and gas operations. Directing fracking sites to safe distances from schools and homes should be at the heart of reform efforts.
Local setbacks should be allowed up to a half mile (the evacuation zone in the event of a well fire or other catastrophic accident) for schools, hospitals, nursing homes, and densely populated residential or commercial districts; and up to a quarter mile for dispersed homes.
Second, Colorado needs to amend the Oil and Gas Act to provide that people come before profits, and the paramount public interest is to protect against significant threats to public health, safety, welfare and the environment. Lives, clean air, and drinkable water are more important than recovering every last drop of oil or cubic foot of natural gas.
The urgency of amending the act became apparent on Jan. 14, when the Colorado Supreme Court Martinez decision found that protecting health and safety can be balanced against “cost effectiveness” and “technical feasibility” from industry’s perspective. In other words, existing law allows putting profits before people.
Putting people first means not allowing out-of-state corporations to conduct unsafe operations that maximize companies’ bottom lines at the expense of residents. Examples include past proposals to allow hydraulic fracturing:
- Dangerously close to ground zero of the underground nuclear detonation test site near Rulison on the West Slope;
- At the Rocky Flats Superfund site with lingering soil contamination from manufacturing weapons-grade plutonium triggers for nuclear bombs; and
- Below Standley Lake, a reservoir that provides water for more than 100,000 residents of Westminster, Northglenn and Thornton.
Third, Colorado needs to track whether the life-cycle emissions from oil and gas development are consistent with state climate policies. If not, we need laws and policies that achieve compliance with Paris Pact goals or the Colorado Climate Action Plan.
Record-breaking levels of fossil fuel development are inconsistent with science establishing the need for significant cuts in greenhouse gases. These emissions contribute to catastrophic wildfires, unprecedented floods and aridification (a new normal characterized by chronic drought conditions). More frequent and severe extreme weather puts lives at risk and costs billions of dollars to reclaim lives, property, forests, and watersheds.
Fourth, Colorado should require the consent of 51 percent of mineral owners to obtain a “forced pooling” order allowing development. Private developers can’t force surface owners to build a subdivision or strip mall on their land. Mineral rights should be no different.
Our unitization law already requires the consent of 80 percent of mineral interest owners. Where towns and counties purchased unleased open space lands with public funds, they are entitled to guard against heavy industry that threatens ecosystems and recreation.
Fifth, Colorado’s effective severance tax rate on oil and gas ranks dead last among 10 Western states. According to the Colorado Legislative Council, Colorado collects 0.6 percent compared to 9.4 percent in North Dakota, 10.5 percent in Montana, 10.2 percent in Texas and 11.2 percent in Wyoming.
State lawyers should investigate whether the ad valorem tax credit can be adjusted through legislation. Longer term, a ballot measure can bump severance tax contributions to levels assessed by neighboring oil and gas states.
Although it’s too late to recover billions in past subsidies, Colorado can raise hundreds of millions of dollars annually to invest in education, health care, clean energy jobs, and transportation infrastructure.
Sixth, Colorado needs to bar top state officials from working for the oil and gas industry for at least 10 years after their tenure. The same policy should apply to former legislators, more than one of whom is rumored to have cashed in on elected office by lobbying for special interests.
Seventh, comprehensive planning of oil and gas operations should replace piecemeal approval processes that all-too-often sweep threats under the rug. Comprehensive development plans should be mandatory. COGCC needs to enforce locally negotiated operator agreements where local government lacks needed expertise and resources.
Eighth, bonding and permitting policies must be updated to protect taxpayers and aquifers.
Ninth, Colorado should strengthen our Habitat Stewardship Act by extending the consultation role of Colorado Parks and Wildlife to all energy infrastructure, including oil and gas pipelines and renewable projects.
Tenth, risky undrilled permits should be revisited in light of the fact that the prior administration sided with industry on health and safety shortcuts. Outstanding permits should be suspended for closer scrutiny where significant threats were identified by state health experts, environmental scientists, local government, or impacted residents.
Meanwhile, we need a moratorium on processing thousands of new drilling permits until the legislature can act to restore the Court of Appeals ruling that prioritized health and safety over profits. If that inconveniences the industry, they only have themselves to blame for elevating their bottom line above residents’ lives – and gloating over what will be a short-lived victory in court.
These priorities will start Colorado down the path to a clean energy economy that protects our best assets: quality of life, families feeling safe in their homes, and the spectacular landscapes that make Colorado the envy of the nation.
Colorado will be a model for other states seeking to modernize grids, replace polluting fuels with clean energy, and electrify the transportation feet. Generating power from wind farms and solar arrays adds up to a competitive edge in the 21st century global economy and high-paying home-grown jobs.
In time, today’s kids’ memories of fracking mega-pads over the fence from subdivisions and the brown cloud over Denver will be like baby boomers’ recollections of rotary phones, manual typewriters, and inhaling second-hand smoke in the dark ages when Colorado allowed smoking in bars, restaurants, and work places.
Mike Chiropolos is an attorney in private practice who specializes in energy, environmental, and land use matters. He has more than two decades of expertise on Indian Country, Colorado and federal lands oil and gas law.
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