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Krieger: Has the time finally come for oil and gas reform in Colorado?

One of my last columns for the Boulder Daily Camera told the story of a group of retirees and near-retirees in Broomfield who bought their dream retirement homes in the Anthem Ranch subdivision overlooking a spectacular vista of open space and Rocky Mountains.

Describing these unlikely political activists, I made a reference to the movie “Cocoon.” At least one of my subjects did not appreciate this.

Dave Krieger (Photo by The Denver Post)

It was more than an oblique nod to the inimitable Jessica Tandy. The news that oil and gas developers from Denver were getting ready to frack the open space near Anthem Ranch in a big, big way turned these residents into crusaders at a time in their lives when they expected to be focusing on grandchildren and pickleball.

They were not rabid anti-frackers. They weren’t necessarily against fracking at all. They just didn’t think it belonged in their backyard. And they couldn’t understand why neither they nor their elected representatives had anything to say about it.

When they bought into the subdivision, they were told the open space was protected, which seemed a safe bet at the time. Most of us assume local government — the dreaded Zoning Board of Adjustment, Planning Commission, City Council — has jurisdiction over land use.

But, as they discovered, oil and gas in Colorado has a trump card no other industry has. No steelmaker could demand to erect its smokestacks just across the road from a school or residential subdivision, as Extraction Oil & Gas was proposing to do not just near Anthem Ranch, but also Anthem Highlands, a neighboring subdivision for families with young children. Zoning is about segregating incompatible land uses. This is what local governments do.

Dating to the 1950s, long before most Americans were concerned about climate change, long before the Front Range became home to thousands of refugees from California, Texas and Ohio, the state put its finger on the scale in favor of oil and gas as a matter of economic development.

The state policy was to “foster” oil and gas extraction. Crucially, this priority was deemed so important it trumped local zoning. Over the years, O&G has protected its special status assiduously, including by making generous contributions to candidates for public office. In return, elected and appointed state officials have offered their protection.

The most underestimated phenomenon in politics is backlash. The comedian Dave Chappelle closed a recent Netflix special by recounting the horrific story of Emmett Till, the 14-year-old black boy from Chicago who was kidnapped, tortured and murdered in Mississippi in 1955 after a white woman lied about his behavior (she would admit her lie six decades later). Outrage over photos from the boy’s funeral turned it into a seminal moment in the civil rights movement.

READ: Colorado Sun opinion columnists.

“That murder set in motion a sequence of events that made my wonderful life possible, that made this very night possible,” said Chappelle, a black comic at the top of his profession who commands eight-figure deals for his specials. “How could this be, that this lie could make the world a better place? It’s maddening.”

Backlash makes the political pendulum swing. It now seems possible that the oil and gas industry’s overreach into Boulder County, its attempt to use the state acquiescence to which it has grown accustomed to turn one of the most beautiful tracts of land on Earth into a sprawling oil patch, may bring about the long overdue  reform of Colorado oil and gas law.

Two state lawmakers from that county — House Speaker KC Becker and Senate Majority Leader Steve Fenberg — released the text of a bill Friday that would take the state’s finger off the scale and restore local control over land use.

The bill will not satisfy the most ardent anti-frackers. Nothing short of a statewide ban will do that. But it takes important steps to make the state a neutral regulator rather than a partisan enabler. It would restructure the Colorado Oil and Gas Conservation Commission to take regulatory decision-making out of the hands of industry veterans. It would restore local control over land use. It would change the state’s mission from fostering oil and gas development to regulating it. And it would reform the controversial practice of forced pooling, requiring majority consent.

When Longmont, Lafayette, Fort Collins, the city of Boulder and Boulder County voted, by referendum or governing body, to ban or put moratoria on fracking, votes invalidated by the Colorado Supreme Court on the basis of state preemption, they had rational economic reasons for doing so.

Boulder County is home to a robust outdoor recreation economy. For the state to force it to accept industrial development that threatens its economic bread and butter is irrational. When you get to the point that an industry, any industry, can trample the democratically determined will of the people, the pendulum might just be getting ready to change direction.

That’s not why the governor’s office and both houses of the state legislature are now controlled by Democrats and oil and gas reform finally has a chance. President Trump did that, and appropriate gratitude is in order. Cue Dave Chappelle.

The Colorado Senate used to be O&G’s goalie, blocking any meaningful reform. But for the past eight years, the governor, a Democrat, was even more effective. John Hickenlooper was the Patrick Roy of the oil and gas industry. When the former industry geologist wasn’t complimenting his former colleagues on their innovation, he was brokering a deal with then-Congressman Jared Polis to get reform off the ballot in 2014 by creating a task force rigged to block any meaningful reform.

If Emmett Till’s murder helped fuel the civil rights movement, the deaths of Mark Martinez and Joey Irwin in a home explosion in Firestone on April 17, 2017, might be the seminal moment for oil and gas reform in Colorado. Erin Martinez, who was injured in the blast, was at the Capitol to speak up for the Becker-Fenberg effort. An abandoned flow line from a nearby well owned by Anadarko Petroleum Corp. had saturated the ground around her home with natural gas, just waiting for a spark.

The industry offered its thoughts and prayers. This is not the only way in which it seems to have modeled its public relations tactics on those of the National Rifle Association. Every proposed reform is greeted with panicked cries that the energy industry will be destroyed and Colorado’s economy will implode. Tracee Bentley, who came out of Hickenlooper’s office to run the Colorado Petroleum Council, fired the first shot before the text of the Becker-Fenberg bill was even released.

Following the Firestone explosion, Hickenlooper and state officials allowed maybe they should have maps showing oil and gas pipelines. Republicans filibustered a bill in the legislature to require operators to reveal the locations of wells and pipelines. Nearly a year later, the COGCC announced new flow line regulations.

“I’m glad you’re addressing pipelines after what happened in Firestone,” then-state Sen. Matt Jones told officials at a public meeting. “I think you’re woefully inadequate, though, in that you’re not mapping all of these lines and then letting people know where they are. … So we need mapping and we need to remember who we work for,” said Jones, now a Boulder County commissioner. “We govern with the consent of the people out there. And do you not think that they don’t want to know where a pipeline might be by their house, especially after Firestone?”

Matt Lepore, then the director of the COGCC, replied that mapping data would be too much information for the commission to handle. A state that required a fatal home explosion to consider the risks to safety and health of pipelines continues to claim it has the strictest oil and gas regulations in the country. As the Camera pointed out nearly three years ago, New York State banned fracking. That would be stricter.

Much has changed since the 1950s. We know now that significant reserves of hydrocarbons will have to be left in the ground if we have any hope of restraining global warming to the goals established in the Paris climate accord.

Colorado’s policy to this point has been to permit extraction of every accessible molecule, no matter where, no matter what the locals think about it. In the post-Frackenlooper period, it seems sensible to start by leaving in the ground hydrocarbons beneath communities that have voted not to extract them.

The world is awash in oil and gas. The U.S. is now its leading producer. There is no national security or economic security argument for overriding local democracy to drain every drop, and lots of environmental arguments against it. Plenty of places in Colorado still want the jobs and economic impact related to oil and gas extraction. This bill would do nothing to stop them, provided developers can demonstrate the safety and environmental protection measures required by a newly neutral COGCC.

Can Becker and Fenberg get this thing passed? Many years of collusion between state and industry leave me skeptical. It seems likely to pass the House, where Democrats hold a 41-24 advantage. The Senate, where the Democrats’ edge is 19-16, might be more problematic. Can O&G peel off two or more Hickenlooper-style Democrats? I wouldn’t bet against it.

But if the political ground can shift on gay rights and marijuana as quickly as it has over the past few years, maybe the time for oil and gas reform in Colorado has finally come. The new governor was present at the Capitol news conference announcing the initiative. If he gets the chance to sign this bill, or some reasonably amended form of it, Erin Martinez should get the pen, in memory of her husband and her brother.

Dave Krieger has been a Colorado journalist since 1981. @davekrieger