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Colorado’s Fracking Wars Reignite

You’ve got to have a mind of winter to fully appreciate the pall Colorado Governor Hickenlooper’s Task Force on Oil and Gas cast over the concept of good government in this state.   Termed Blue Ribbon by the governor, it easily was not.  It included not one person from the many local citizen groups that have organized to protect themselves against a rampaging oil industry given free license to drill at will by a benighted legislature and a puppet governor.

Thurgood Marshall was fond of saying, “ The Constitution does not prohibit legislatures from enacting stupid laws.”  The Colorado Oil and Gas Conservation Act is one of those stupid laws.  It established a small bureaucracy, called the Colorado Oil and Gas Conservation Commission, which was invited to walk hand in hand with the oil and gas industry in developing a poison garden of oil and gas wells in the state. This alliance would serve the state’s economic interests, reasoned they.  To ensure their dim design they took away the public’s rights of self-government and gave them to the adoring hand holders.

Beyond the obvious, there are several problems with this prescription to economic development and efficiency.  First, the legislation defies Colorado’s constitution, which declares explicitly that, in matters of dominant local interest, those rules and regulations propounded by local government in such matters are superior to those of the state.  In Colorado this is called home rule or local control and is selfishly guarded.   Can there be anything more local than objecting to the creation of an industrial landscape of 8 or 12 oil wells over a mile deep and up to two miles long, with concomitant storage vessels on the surface, all spitting out poison, noise, and fire and explosion risk just out your kitchen window?

These concerns are at the heart of the lawsuit brought against the people of Longmont by the industry with the support of the governor, who, as some have reminded him, is effectively suing his own people on behalf of the oil industry.  Their crime? They told the industry they weren’t welcome in their backyards, they weren’t interested in an industrial landscape outside their kitchen windows.

It is safe to say that the citizens of every city in the state, if  similarly threatened, would act to defend their civil rights and protect their health and hearth.   Indeed, this is exactly what has happened in other Colorado cities recently threatened by a frack attack.  City lawyers and council members have fought furiously to advise the citizens their rights and concerns had been forfeited by the legislature and that their community will be sued by industry and state government if they object, yet they persist.

On the Governor’s Blue Ribbon Task Force, only one substantive proposal dealing with public health was presented.  It was offered by a small, Durango, CO, rancher and retired professor of sociology, Jim Fitzgerald.  An unpretentious man, he brought real life experiences about health and safety issues resulting from oil and gas development.  He and his wife Terry had seen the industry at work firsthand in rural southwest Colorado.  They were witness to six homes that had to be evacuated, with the industry buying out the unlucky owners.  Buyouts are more common than thought, but the injured parties, as a condition of settlement, are forced to agree not to disclose the extent of their injury.  In a famous case in Pennsylvania, the gag order even extended to the infant children, outdoing anything even Charles Dickens might have imagined concerning the machinations of the legal profession.

Fitzgerald’s proposal was quite simple.  It called for an independent review of all fracking studies nationwide.  If the survey showed there were…”no threats to public health,” fracking could continue.  But if there was scientific doubt, then fracking was not to be allowed until the Colorado Department of Public Health and Environment, with benefit of a comprehensive assessment, could assure the people that fracking posed “no threat to their…health.”

Fitzgerald’s proposal took its lead from the scientific and public health efforts in New York, where the governor recently banned fracking.  Significant to the ban were independent reviews by scientists and health professionals.  In their review of over 400 studies on fracking, they found that:

* 96% of all papers published on health impacts indicate potential risks or adverse health outcomes.

* 87% of original research studies published on health outcomes indicate potential risks or adverse health outcomes.

* 95% of all original research studies on air quality indicate elevated concentrations of air pollutants.

* 72% of original research studies on water quality indicate potential, positive association, or actual incidence of water contamination.

In announcing his support for a ban in New York, Dr Howard Zucker, head of the Department of  Public Health, explained: “I asked myself, ‘would I let my family live in a community with fracking?’ The answer is no. I therefore cannot recommend anyone else’s family to live in such a community either.”

The Governor’s Blue Ribbon Boys had this information.  It had been sent to them.  Still only 9 of the 21 members voted for adoption.  Fitzgerald’s proposal will go to the legislature as a minority recommendation and has about as much chance of survival as a trout in a toilet bowl.

Only days after the last task force meeting the Governor was asked about the public health issues by Ryan Warner on Colorado Matters, a state public radio program.  Despite the mountains of evidence to the contrary, Hickenlooper breezily said, “We can’t find examples in Colorado, or more than one or two examples, where fracking, in any sense, has caused harm or been sufficiently dangerous to the public to justify us to ban it.”

As dumbfounding as this statement is from a man who has taken a solemn oath to protect the wellbeing of the people of this state, even more dumbfounding is the reporter allowing such a loopy, nonsensical, self-serving statement to go unchallenged.   Clearly, they both were familiar with the New York ban, the reasoning behind it, and the state’s own school of public health study showing a 30 percent increase in birth defects in children living near oil and gas wells.  The study may not have been perfect, little is except the governor’s blindness, but it was muscular in design, looking at over 124,000 state birth records.  Something happened, and Warner is obligated to drill down for answers, not allow Hickenlooper to rush to the next lie.  It is this kind of journalistic deference to political power that allows politicians like this governor to escape hard questioning, to remain breezily popular.

The editorial board for the hedge-fund-owned Denver Post was quick to endorse the majority recommendations from the Blue Ribbon Boys, of which there were nine.  The Governor, apparently unfamiliar with how he’d won election, proclaimed that a simple majority did not constitute a majority, only a two-thirds vote of acceptance would do. The nine meeting the two-thirds test dealt exclusively with process, the bureaucrat’s dream.    What “more process” does inevitably is increase costs, and little else.  And since all the efforts at more local control were beat down by the oil interests and the professional politicians, Dem and Republican alike, what you got were some little brown nuggets of process.

The Post liked particularly the idea of voluntary Memoranda of Understanding, MOUs, between local governments and the industry.  What they failed to recognize is that the town of Erie had an MOU with the Encana Corporation when the latter drilled a well in January that created noise levels so great that people in homes 750 feet away had to move to hotels.  It lasted, unmitigated, for 3 weeks, with noise levels equivalent to a lawn mower at 3 feet distance 24/7.  Erie, with MOU in hand, could not stop the drilling or the noise, Encana would not, and the COGCC, despite having the self-proclaimed strongest fracking regulations in the solar system, if not the entire universe, couldn’t either.

Another bureaucratic measure was to increase the number of COGCC inspectors.  This increases the public costs, of course, and further entrenches a bureaucracy that demonstrably isn’t up to the job of protecting the public interest.  It is in the business of making the state safe for the oil and gas business.  No further evidence is needed than a report from the Post’s environmental reporters, only days after the Blue Ribbon Boys closed up shop.  The report exposed the fact that only about 9 percent of the land surrounding the states 47,000 inactive wells has been reclaimed.  These wells are on both public and private land.  The land is estimated to constitute 100s of square miles, some of it suitable for agriculture, all of it suitable for some form of wildlife.  Wildlife in Colorado is a public resource belonging to the people.

According to the Post, when asked about the lack of progress in land reclamation, COGCC Director, Matt Lepore, wasn’t quite the bon vivant we’d come to expect from his glitter-glib testimony before the Blue Ribbon Boys.  In fact, in this unguarded moment he seemed rather dismissive of his enforcement responsibilities:

” ‘There are different ways to skin a cat. Sure, we could have a rule change. What would that accomplish?’ Lepore said. ‘Maybe if we start whacking operators with enforcement? There are some that are probably not bringing the resources to bear as they should. There are others where it wouldn’t make a lick of difference.’ ”

If any were needed, fuel was added when environmental reporter Bruce Finley reported separately that the COGCC is apparently requesting $445,000 in public money annually for land reclamation.  It is unclear from Finley’s report where this money goes, but it isn’t going to restoration, obviously.

Then, just a couple of days later, the state punted again on restricting oil well placement in flood zones.  In 2013, a massive flood ruptured pipelines, toppled storage tanks, and compromised wellheads.  The industry estimated 48,000 gallons of oil and 43,000 gallons of toxic liquid waste were lost.  The state reports these numbers as factual and state generated, but they are, in fact, industry generated.  The state only knows what the industry tells it since enforcement and spill estimates are based on an honor system.  Matt Sura, an attorney who was also on the Task Force, argued for more local control on well placement, out of the flood plain, “as far from waterways as possible…”  He was no more successful than he had been on the task force where he had argued tirelessly for the civil rights of citizens against the oil interests.

Director Lepore, unaware, apparently, that flood plains have been mapped for centuries, said such a recommendation was too imprecise.

Matt Sura was not the only person on the task force defending the civil rights of citizens.  Gwen Lachelt was another.  As co-chair, she introduced several important recommendations on water quality and for complete disclosure of the toxic chemicals used.  But the Blue Ribbon Boys, like Randy Cleveland, the Texas oilman and her co-chair who flew in on his corporate jet to most meetings, defeated them.  And then there was Peter Dea, another oilman, who is purportedly the Governor’s personal friend, financial backer, and drinking buddy.  He missed most meetings, but he did manage to characterize the public health and civil rights concerns of the people who came to bear witness this way: “We have to be reminded that we’ve got irrational communities out there…”

And no listing of the Blue Ribbon Boys would be complete without mentioning Pat Quinn, the former mayor of Broomfield.  A CPA, and nominal Democrat, with long ties to the industry, he famously explained why the city approved  21 new wells in Broomfield at the same time the citizens were about to approve a successful citizen led initiative calling for a 5-year moratorium on fracking so that more could be learned about the health risks.  Quinn, oblivious to citizen rights and concerns, said the city had no basis for denying the drilling permits.   Using an argument straight out of the fracker’s play-book, he asserted that efforts by home rule cities in Colorado to regulate oil and gas drilling were not constitutional.

Other notable Blue Ribbon Boys voting for stasis were Russell George, the former Republican Speaker of the House.  He is sometimes credited with giving the wilderness on the Roan Plateau away to the oil industry when he headed the Department of Natural Resources for Bill Owens, then governor, now oilman.  Add to the list of worthies, Bernie Buescher, millionaire Democratic factotum.  His proposal, unusual for its essential nothingness, even by the standards of the Blue Ribbon Boys, allowed city officials to meet with the drillers before any agreements were entered into with the state.   For effectiveness in protecting civil rights, this might be compared to Vichy government officials greeting the conquering German army at the city steps.  It passed unanimously.

These people were not picked by accident.  As the Governor boasted when speaking before a Chamber of Commerce meeting:  “ ‘People ask me, ‘Who’s gonna pick ’em?’ I am. … The buck stops here and I guarantee you we’re going to have everybody pissed off again,…The one criteria is that everyone who is going to be on that list is someone who believes we can get to a yes [on a compromise].’ ”

So why did good people like Fitzgerald, Sura, and Lachelt, and several others join this parade?  They were operating mostly from the idea of citizenship and civic action, I suppose, though less noble motives, like political recognition, might have had a foothold, too.   All are understandable drivers.  I asked Fitzgerald directly, he told me he thought he could make a difference.  I know that Sura felt the same, as did Lachelt.  But all were deeply disappointed in the result.

It’s inexcusable for the governor to load the dice and then ask well- meaning people to play his game.  He was using them as fodder, much like the British commander at Gallipoli.  Over the top boys, glory awaits you.

This 5-month exercise in tedium undoubtedly cost the people of Colorado thousands of tax dollars and much more in precious time and belief in good government.  It’s going to be a long, hot summer.

Phillip Doe is an environmental activist in Colorado.

 

 

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PHILLIP DOE lives in Colorado. Doe is a co-sponsor of a public trust initiative that would turn the tables on the permitting process by making those seeking to use public resources, air, land, and water, to first demonstrate that the proposed use would not irreparably harm those resources–the reverse of the present permitting process. He can be reached at:ptdoe@comcast.net

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