Establishment publications like the New York Times and The New Yorker are quick to describe the relentless drift of Western Europe toward oligarchy and fascism, or to bemoan the end of democracy in Turkey, but they are less inclined to identify and evaluate similar events when they occur in their own back yard. This proclivity must owe something to the blindness inherent in American exceptionalism.
Several weeks ago the Colorado Supreme Court denied the appeal of two Colorado cities to ban or postpone oil and gas development in their cities because of citizen health and safety concerns.
The Court’s decision focused only on the rights of cities, not on the rights of citizens. As I will explain later, this is a distinction with significant meaning in Colorado since our state constitution is proudly populist and protective of the individual as bulwark against corrupt or narcissistic government. In this our predecessors were prescient.
Its hallmark in this regard is Article V, which declares the citizens, as sovereigns, reserve for themselves the right to legislate; that this right is a first right, superior even to the legislatures; and that it shall not be interfered with at any level of state or local government. Its means of implementation is the initiative and referendum. Both of which require a simple majority of those voting. The legislature, despite the constitutional prohibitions, has made the referendum a nullity. This Court’s decision threatens to do the same to the initiative, or so the corporate press and the ruling elite gleefully declared.
Actually, what the Court did was to further damage the constitutional guarantee of Home Rule, Art XX. That constitutional provision says home rule cities have the right to regulate within their boundaries on matters of local concern, and that such regulations are superior to state regulations if they conflict. The courts and the legislature have been busy over the years whittling away at this right of local control, with the Court arguing that if the regulatory issue was of both local and state interest, the state’s interest is generally controlling. Neither the legislature nor the court seem to have been deterred by the fact the constitution does not allow for such parsing.
I don’t know what could be more local and subject to city regulation than the prospect of an oil well in somebody’s back yard, but the Court saw it otherwise. Dwell for a moment on the prospect of a giant gas and oil operation, maybe 22 or more wells within a few hundred feet of your home–All of them spewing poisons into the atmosphere; all requiring the construction of large, onsite industrial facilities for operational support; and all relying on continual heavy truck traffic over their useful life. Given these realities, can there be any question about why the people of these cities were hoping for a sense of empathy and a shared value of citizenship from the Court, but the interests of property, plunder, and privilege prevailed.
Indeed, the Court, a collection of corporate lawyers appointed by the last four Governors who were or are employed to some degree by the oil and gas industry, said hooey to the constitutional guarantee of Home Rule, but carefully dignified their contempt in 28 pages of legal legerdemain dressed up in flawless punctuation. The rights of cities, said they without dissent, had been preempted by the legislature in the Colorado Oil and Gas Conservation Act since oil and gas development was too important to be left to local government.
This decision makes the constitutional guarantee of home rule on issues of dominant local interest another nullity, for if the legislature can preempt local regulation of oil wells in people’s back yards, they can preempt any attempt at local control provided the money and corporate pressure are great enough.
One of the more interesting aspects of the Court’s “reasoning” had to do with one of the petitioners’ legal arguments drawn from the Bill of Rights, Art II, in the state constitution. It proclaims that the people have “certain natural, essential and inalienable rights,” including the “right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.”
The court ruled “they were not persuaded” the inalienable rights of citizens could be applied to cities, for if they were, it made the rights of home rule in the constitution a redundancy, carefully forgetting for the moment they had already put RIP on its headstone. And certainly they were not going to take the breathtaking leap to discover if cities were not something more than abstractions, perhaps, on a more refined level, a collection of people with common interests in public health, social well being, and self governance.
When Charles Dickens created the Circumlocution Office in Little Dorrit he must have been channeling this Court, this state government. Dickens said of the Circumlocution Office that in all of government it alone had achieved godhead in “the art of perceiving — HOW NOT TO DO IT.” Dickens, in mock seriousness, described its contributions:
Through this delicate perception, through the tact with which it invariably seized it, and through the genius with which it always acted on it, the Circumlocution Office had risen to overtop all the public departments; and the public condition had risen to be — what it was.
Is “how not to do it” anything less than a perfect description of the present public condition in Colorado?
The scion of the Circumlocution Office who penned this latter day thunder-mug of circuity, or the court’s unanimous decision, if you will, is Richard Gabriel. He was recently appointed to the court by Governor Hickenlooper, who himself is rumored worthy of vice-presidential consideration by the Clintons. To prove up his case for being just right for Clintonian Washington, Hickenlooper has authored the obligatory pre-convention book laying out his middle-of-the-road wisdom, which is really code for always favoring business “‘cause they got the money.” Those whose homes are in the crosshairs of the oil industry, having lost all faith in government, don’t care, for they know him well enough for his unwillingness to defend their inalienable rights to health, safety, and liberty.
Nevertheless, it is likely Hickenlooper would fit more comfortably into the big chair beside the fireplace in the Secretary of Interior’s office. There he could follow in the missteps of Ken Salazar who has returned to Colorado as just another corporate lawyer supporting natural gas development. Ken, he of the cowboy hat as living appendage, is rumored to be positioning himself to run for Governor to replace the term limited Hickenlooper. He like the governor is sure fracking is safe. Clearly, they live in an alternate universe where science is yet to be discovered.
In Colorado the legislature meets for 120 days each year. This year as in most they introduced over 600 bills. About half were written into law. Less than a handful will be remembered.
Chief among the few is a new law that allows city folk to recover for home gardening a little of the storm water running off their roofs. This bill had been floating around the legislature for several years, but had always been opposed by farmers in the eastern part of the state. They claimed the water on all city roofs actually belonged to them. The Constitution says all water belongs to the people, but as I’ve demonstrated, the constitution doesn’t mean much in the face of money and privilege. But it wasn’t a clear victory, for the state is obligated to see if there is an impact on eastern farmers who use the public’s precious water to raise heavily-subsidized surplus crops, mainly corn, that we then feed our cars. If there is found to be an impact, then the roof water goes back to the farmers, plus damages. Consider, for a moment, that the anarchy-fostering dangers of backyard gardening with captured rain water was one of the high points of the session.
Two bills protecting local populations from the get-used-to-oil-wells-in-your-back-yard disease were introduced, but never got out of committee even though the public was there in massive support. Most Republican legislators were not even there to hear much of the public testimony, having left the hearing rooms with smart phones growing from their ears. They always got back in time to vote no.
A grassroots organization I belong to tried to get the legislature to introduce a resolution encouraging cities and counties to initiate plans to convert to renewables in recognition of the promises this nation made in Paris at COP21. The resolution could find only one prospective sponsor, State Senator Morgan Carroll. Term limited, she is running for the U.S. House of Representatives. As one state legislator told me, “don’t expect anything big from the legislature this year, it’s an election year and everybody is afraid of alienating even one constituent.”
This attitude hardly seems consistent with the gusto expressed in voting themselves a prospective 25 percent pay raise in the final hours of last year’s session, a pay increase that carried over to the governor and many state and county executives–the ruling elite, if you will. That their pay was already 2 to 3 times greater than the salary paid to legislators in any bordering states mattered not. New Mexico legislators receive no pay, only per diem.
They also assured themselves there could be no public referendum or citizen vote contesting their pay increase by adding the Safety Clause to the legislation. It declares as follows:
The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.
So, their self-congratulatory pay increase is necessary to preserve the public’s health and safety, but restricting oil wells from backyards isn’t? Colorado truly is the latter-day land of how-not-to-do-it.
One corporate newspaper, the Boulder Camera, which is owned by the same corporation as the Denver Post and eleven other print news outlets in the state, wrote a surprisingly strong editorial condemning the Court’s decision. It was aptly titled, Colorado an oil and gas subsidiary. The Denver Post, predictably, said the court got it right. The Post’s editorial page editor has long been a strident advocate for fracking. The editor for the Camera lives in one of the most anti-fracking communities in the state.
The Boulder paper’s condemnation, however, got one thing wrong. The Court did not rule on the people’s right to legislate without legislative or judicial interference as guaranteed in the state Constitution, but on the right of the cities to regulate oil and gas. These are very great differences as I said at the outset. In fact, the cities of Longmont and Ft Collins in their oral arguments before the Court never offered a defense of the people’s reserved right to legislate by initiative. They should have, for in both cities the restrictions on fracking came about as the result of citizen sponsored initiatives that were placed on the local ballot and received overwhelming citizen approval. They were not city regulations, but citizen authored laws.
Still, the main argument presented to the Court by Longmont’s attorney was that the oil companies should and could use methods of drilling other than fracking to mine the oil.
Much discussion has ensued over why the defense was so weak, and why the other parties, which included the Sierra Club, the University of Denver Environmental Law School, and Earth Justice did not make presentations to the court, why they let the city of Longmont make the only oral argument? Perhaps an even more interesting question would be, why did the Court never inquire about Article V and its application to the case before them? Surely they were familiar with the peoples reserved right to legislate, a right that is not to be threatened or thwarted by the actions of any branch of government?
This I can say, the Longmont mayor, Dennis Coombs, and city attorney, Eugene Mei, were never very friendly to the citizen initiated ban on fracking. In fact the city attorney was of the opinion the citizen’s initiative to ban was illegal, as he told me directly. Nevertheless, they spent hundreds of thousands of taxpayer dollars hiring outside counsel to disguise their doubts about the citizen initiated law.
From the citizen standpoint there was startlingly little surprise from those dealing directly with the oil and gas invasion into neighborhoods. Some seemed to expect the general lawlessness this decision represents, no matter how much high-toned language and black-robed solemnity it came dressed in.
One thing is for certain the decision fired up efforts to get signatures for several grassroots initiatives that would allow citizens to restore home rule as a constitutional guarantee. That citizens must attempt to redo what is already in the constitution should cause the establishment, those nightly TV protectors of constitutional law and order, to howl to the heavens in condemnation. But it hasn’t, and it won’t in the land of how-not-to-do-it.
The success of these several initiatives is dicey. They are citizen driven, and therefore money short. One would require a 2500-foot setback from homes and waterways for all new wells. The industry, the state, and the corporate press have been quick to warn that if it were to get on the ballot and then viewed favorably by the voters, it would kill the industry in the state. Anadarko and Noble Energy have already anteed up over $6 million to fight the initiatives. Moody’s recently rated Andarko’s debt as junk bond quality. Noble suffered a $2 billion net loss in 2015.
The industry seems to forget that the fault is not in the people, but in themselves, because the frenzied overproduction, for which they alone are responsible, has caused their bankruptcy and disintegration. They have simply killed themselves with appetite.
Fracking wont be profitable in Colorado until oil prices once again exceed the $78 a barrel break even point, and that day may never come, or so old industry war-horses like T. Boone Pickens believe. T. Boone is putting his money on wind.
I include Colorado state government, in its entirety, in this discussion for it is an obvious and willing arm of corporate governance. The state’s reaction to the 2500-foot setback initiative simply offers further testimony. The Colorado Oil and Gas Commission, COGCC, the state agency responsible for regulating the oil and gas industry, was quick to condemn the initiative, saying it would place about 90 percent of the gas land in Colorado off limits to drilling.
This assertion ignores the fact that the issue behind the initiative is the protection of public health, and that even at 2500 feet, peer reviewed public health statistical studies here in Colorado show a marked increase in birth defects to infants living within one mile of high well concentrations. Indeed the impacts on children could decreasingly be measured out to 10 miles.
Then, too, the 2500-foot setback is intended to also protect water courses. Last year Colorado’s water user organizations, or stakeholders as they prefer to be called, finally birthed the state water plan. It is another Hickenlooper concept, much like his Blue Ribbon panel on fracking, but in this case the panels were, in the majority, made up of water buffaloes rather than oil men. The plan envisions taxpayers anteing up at least $20 billion to build 520 new water projects, including more water for agriculture to raise more corn for cars. They added in $2 to $3 billion for the environment to get national enviros like Trout Unlimited on board.
If water is so important to this state’s future, shouldn’t these setbacks be viewed as collaborative of the state water plan and protective of our most valuable natural resource? The people behind these initiatives are on to something. They know it is past time to start ratcheting down new oil and gas development and get on with the necessary business of converting to renewable in the name of public health and the health of the planet. Indeed, they understand what W.H Auden meant when he said, “thousands of people have lived without love, not one without water.”
The Colorado Oil and Gas Association, the industry’s trade association, was quick to chime in on the setback initiative with the old chestnut about oil providing 90,000 jobs in the state and being essential to its economy. The job numbers were generated by the Leeds School of Business at the University of Colorado. The computer software used to generate the data is owned by the industry itself, and it had final say over any analysis and product Leeds produced for them as reported by the Boulder Weekly in a well-researched muck-raking story. Its reputation sullied by these revelations, Leeds apologized publicly, but the industry still trots out the bogus numbers, which are dutifully parroted by a compliant press. And of course the university is led by Bruce Benson, a climate-crisis denying, billionaire oilman with a bachelors degree in geology, who, running for governor, a few years back, advocated privatizing the university. He was also the state campaign chair for Bush-Cheney.
By comparison the Bureau of Labor Statistics measured about 22,000 oil jobs in Colorado in 2013, at the peak of the fracking frenzy. There were over 70 drilling rigs in the state at the time. There are now 13 rigs on the Colorado’s front-range, with further decreases expected. The jobs have dried up with them, and even if they hadn’t, they would still constitute less than one percent of 2.5 million jobs in the state.
Hickenlooper was quick to voice his condemnation, as well. Speaking before a luncheon of oil executives, that included American Petroleum Institute head Jack Gerard, he said the setbacks would end up costing taxpayers billions in compensation to mineral right holders. Though it may be nearly impossible to say anything positive about Hickenlooper’s moral vision, he is blindly consistent on the property rights of mineral rights holders trumping the property rights of homeowners. Gerard, quick to seize on the opportunity, added, among his comments, that we would always need tint, made from petroleum, for our car windows.
But it is not home rule or the right of people to decide how to live in their own communities that is first in the minds of the ruling elite, though, as I’ve shown, they’ll take those rights too. No, it is the people’s superior right to legislate that is stuck in their craw, as it has been since it was added to the constitution in 1910 by an overwhelming direct vote of the people. Ironically, the right of home rule, Article XX, was also added to the constitution in that year, and also by a direct vote of the people. The U.S. Supreme Court has twice had to chastise the state for previous attempts to limit the people’s right to direct democracy.
If you have a mind for irony, I think you will find it delicious that the way they’ve devised to destroy the people’s right to legislate via the initiative is to place an initiative on the ballot that would effectively take away the right of initiative.
A group calling itself Building a Better Colorado, the swaddling child of the corporate dreadnought Concern Colorado, is behind the initiative. Membership in Concern Colorado is by invitation only to corporate CEOs in the state. Bruce Benson is a member, as are all the royal oil and gas Pooh-Bahs in the state.
The initiative they’re pushing is called “Raising the Bar.” It could be more accurately dubbed “To Hell With Democracy,” for it would raise the votes required from a simple majority to 55 percent approving before a citizen amendment could be added to the constitution. Majority opinion be damned.
It would also require signatures from 2 percent of the eligible voters in each of the state’s 35 senate districts before it could even get on the ballot. Both of these are clearly punitive, and the second clearly conflicts with the concept of one person, one vote, for one senate district effectively has veto power over what might be the will of the majority. Incredible, but it’s getting good press!
They are trotting out the old lies about the people ruining the state’s constitution by adding new laws willy-nilly. Well, in the 106 years of Article V’s existence the constitution has been amended about 150 times, with the majority of those amendments coming by referral from the legislature, not from the people using the initiative process. In total it comes to about 3 amendments every 2 years. This hardly seems excessive. Indeed, Jefferson would approve, for as he said, “All human constitutions are subject to corruption and must perish unless they are timely renewed and reduced to their first principles.”
The claim is also made that only 27 amendments to our U.S. Constitution have been made, and we should follow that example. Well, this too is an ugly deception because collected constitutional rulings and decisions by the Supreme Court would fill a room, and they in a sense are all changes or modifications to how the Constitution is to be viewed or interpreted.
What is more, and most importantly, our state constitution is a working document, it’s how we govern ourselves. It was not brought down from the Mount on tablets, it was written by citizens for citizens. Necessary changes to it do not threaten the U.S. Constitution with which it must comport. As long as we, the people, are the sovereigns whose first right it is to make law, there will be changes, and sometimes those changes will be for the purpose of correcting bad legislation such as Colorado Oil and Gas Conservation Act, if only at the local level. For change under the direct democracy concept is as right and necessary as rainfall and moonlight.]
It will be an interesting summer, and already plans are being drawn to challenge the Court’s decision which is being interpreted to mean that the people are denied their first right, their right to make law when it comes to all issues oil and gas. A crucial law article is already available outlining in detail the mistakes made in the two appeals for local sovereignty the court denied and possible corrective action.
The events of the last few weeks force modification of Thurgood Marshall’s observation, that “ the Constitution does not prohibit legislatures from enacting stupid laws,” for, of course, there is nothing in the Constitution that prohibits courts from rendering stupid decisions either. The people’s best defense against corrupt or unresponsive government is direct democracy, but it must be fiercely defended against the designs of those who would make us subjects. More and more citizens get it and are pledging, “no bowing and scraping for me.”