Should local governments have a say in how oil and gas development occurs within their jurisdictions? The answer is yes, according to the Colorado Supreme Court in the 1992 Bowen-Edwards v. La Plata County case. La Plata was the first county in Colorado to adopt regulations on oil and gas, and in the ensuing 20 years, many other local governments have followed suit. This year, that established right to regulate has come under attack from both the state and the industry. How far this attack will go depends in large part on what happens the next five weeks.
On Feb. 29, Gov. John Hickenlooper signed an executive order creating a task force consisting of representatives from the state, the industry, local government and the conservation community, the task forces charge is to help clarify and better coordinate the regulatory jurisdiction between the state and local governments over oil and gas operations. This will be done by April 18. If in fact the task force maintains the neutrality implicit in clarify and coordinate, there could be some benefit from the exercise.
Where the conservation communitys skepticism lies is in the escalating assaults on local authority during the last year, and the governors increased affiliation with the industry as evidenced by his appearing in ads paid for by the Colorado Oil and Gas Association.
Within the last year, Front Range communities have begun to experience oil and gas development on an unprecedented scale. As this development encroaches on parks, schools, residences and water sources, people have risen up in arms. They have been calling for their local governments to enact moratoriums, adopt regulations and ban fracking.
Local governments, in turn, have been met with active opposition in their efforts to protect their citizens. The state government, arm in arm with the industry, has stepped into this melee to coerce and cajole local entities to not adopt regulations, but rather to rely on the Colorado Oil and Gas Conservation Commission to address local issues. This opposition ranges from threatening letters from the attorney generals office to statements by the governor that 64 (the number of Colorado counties) different sets of local regulations will drive the industry from the state, to Senate Bill 88 which, as proposed, would have gutted case law and deprived local jurisdictions of any voice at all. So there is reason to question the actual purpose of the task force, and it remains to be seen if it will be as benign as billed.
Several things are clear. First, there can be no diminishing of local authority. The COGCC has neither the expertise, the capacity, nor the political will to deal with local concerns. That must be left to locals. What the Hickenlooper administration fails to acknowledge is that local regulations have never kept the industry from developing anywhere. Second, there will never be 64 totally different sets of county regulations. Local governments will start with a blank sheet of paper, but will rely on the base set of regulations that have already been written and tested in court, and adopt and adapt them to the circumstances of their individual communities. Third, Speaker of the House Frank McNulty, R-Highlands Ranch, made a very telling appointment to the task force: Ken Wonstolen. Despite identifying himself as being on the task force in the role of private citizen, Wonstolens professional history is not so modest. His decades-long position as a primary counsel and lobbyist for COGA has made him one of the highest-profile advocates for the industrys interests. With this appointment, McNulty has confirmed what many have known for years: The voice of the Republican-controlled House of Representatives is the voice of the oil and gas industry and vice versa.
There have been two task force meetings so far, and it is hard to tell what the end result will be. In curious contrast to the nine topics that the executive order says the task force will tackle (things like setbacks, noise abatement, dust management, and traffic management), that group will begin by examining two very arcane issues: the role of the local government designee and how that position can be better utilized and the sidebars of local onsite inspection and local authority to enforce state rules. How the main issue distinction between local and state authority will be handled remains unclear. Therein will lie the true test of why the governor convened this task force in the first place: Will the states assaults on local authority cease or continue?
Josh Joswick is energy issues coordinator for San Juan Citizens Alliance. Reach him at 259-3583.