The Colorado Gas Wars: Where Things Fall Apart, for There is No Center

Things stay mostly the same in Colorado, where climate change doesn’t exist in the minds of many politicians and some captains of industry. The marvels of fracking are a constant. Wells explode with regularity; each week thousands of barrels of toxic liquids from hydraulic fracturing are injected into the bowels of the earth for ‘safe keeping’; gasses, some of them threatening to all life, drift down from the oil patch in rural Weld County to create ozone and other air problems for the state’s urban population; frackers with massive drilling paraphernalia invade neighborhoods with impunity–and the political elite proclaim fracking safe and necessary to the economy.

One new thing did occur.  Xcel, the corporate utility that provides most of the energy for urban users, sought bids for new power generation to replace two coal fired power plants.  Pricing for wind and solar energy, including battery storage, came in much lower than for fossil fuel, including natural gas. This development ends for the moment the old charge that renewables can never compete with fossil fuels because storage is too expensive.

The industry will concoct new scare stories, for their existence depends on it.  Still, before the ink dried on the Xcel bids, Jim Robo, CEO of NextEra Energy, a large southland utility, predicted that by the 2020s it will be cheaper to build new wind and solar plants with storage than to continue running old coal and nuclear plants.  The executives at Xcel will undoubtedly contest this assertion since it is asking Coloradans for billions in stranded costs to retire old power plants.

The fact that we don’t need fossil fuels for electric generation was not evident at the Colorado Oil and Gas Conservation Commission’s February meeting.  There, the first business, in what was scheduled to be a two-day affair, was to find funding to keep the doors open for the agency’s 110 member staff, only 29 of whom are field inspectors.

The Colorado Supreme Court had once again sided with the oil industry and ruled, after a 10-year legal battle with the tax collector, that infrastructure improvements at well sites are tax deductible. (See if you can get that tax deal the next time you make improvements to your home.) As a result the frackers have applied for almost $200 million in refunds, money normally used to underwrite, among other things, most of the COGCC’s $12.5 million annual budget. To stay afloat the COGCC will rob the  general fund  in 2018, and consequently reduce funding for major budgetary programs such as schools and health care.  This will not please the general public, which views the agency as nothing more than a supine creature of the oil industry.  With the fix in, Colorado can now proudly declare it has the only negative severance tax in the nation, while still proclaiming it has the strongest fracking regulations in the nation–the avowed strengthening of which was the business at hand.

For many months, the COGCC punted on how to regulate flow lines, the small, one to two inch, low-pressure lines used to move hazardous product and waste from the wells to off-site collection and storage sites.  This regulatory exercise came about, as most Coloradoans know, because one of these lines was improperly closed down, resulting in a gas leak into a nearby home that blew up a family in April of last year.  Governor John Hickenlooper, a man of self-proclaimed social probity, vowed “never again.”  This 2nd day meeting was to ensure, after 10 months of bungling leadership and bureaucratic dithering, that the promise of “never again” would finally be realized to the satisfaction of a doubting citizenry.

It is not punctilious to note that during this 10-month period at least 14 more fracking fires and explosions occurred within the state, another person was killed at a well site, and a large explosion near the community of Windsor north of Denver sent a plume of poisonous gasses into the atmosphere so massive that it was recorded 40 miles downwind at a Boulder County air-quality measuring site.  This county-operated and funded facility is the only continuous air-quality monitoring station in the state. The old federally operated site, near the outskirts of Denver, was decommissioned and demolished shortly after President Trump took office.

Of course, none of these events measure up to the human carnage that recently occurred in Oklahoma, a state similar to Colorado, where a drilling rig exploded with such intensity that it killed 5 workers and kept emergency responders almost a mile away until the fire died down days later. Oil and gas explosions are a national experience.

The pictures of Colorado’s Windsor explosion and fire don’t lie.  Local activists there were afraid high levels of benzene were being released. They thought they could smell it throughout the day, prior to the explosion that evening, The Boulder County monitoring station showed a large spike in benzene that correlated precisely with the events in Windsor.  Efforts to get the state’s air quality professionals to the site were unsuccessful.  It was the beginning of the weekend. Reportedly the explosion shook houses 6 miles away.

It is frightful to think of the devastation that would have occurred had a housing development been nearby. That day is coming.  The state has an arbitrary 500-foot setback requirement for new wells from existing homes, but in Colorado’s regulatory circus, developers can build homes virtually as close as they want to existing wells and even on top of old, closed wells. In these circumstances, “never again” is impossible.

Drone picture, Windsor Fire, Frack Check, WV.

Local governments and citizens want to see flow line maps available to them on line. They claim correctly that this information is needed for long-term planning and emergency response—think of the dangers and unknowns the first responders at the Windsor fire walked into. Residents want to know if a home they might buy is in a pipeline explosion zone.

The industry and the COGCC conspire to say that posting precise flow line information would give terrorists a field day.  Apparently the many oilmen on the commission never take a walk in a park, as major oil and gas lines are clearly marked with warning signs. In wooded areas where clear cutting marks the spot, their intrusion can’t be missed. Moreover, the federal Pipeline and Hazardous Materials Safety Administration, PHMSA, responsible for monitoring all major gas and oil lines in the United States, makes this GIS based information available on its website.

Displayed in a county by county format, cities and counties can view the data on major lines in greater detail for their emergency response and public safety needs than can citizens, but it is available to all, even to terrorists who apparently prefer little bangs to big bangs—flow lines are traditionally 1 to 2 inches in diameter while some major pipelines lines can measure 48 inches and greater in diameter.

Excluding flow lines, which are not accounted for in the PHMSA database, an astounding 2.7 million miles of  pipelines crisscross this country.  Even the dullest elected politician or policy-maker can comprehend that embracing wind and solar energy offers an opportunity to move away from this gargantuan and dangerous infrastructure that requires continual oversight and repair at unending human and capital cost.

In the end, the COGCC oilmen cobbled together a totally unworkable bounty.  It goes something like this:  All new flow lines installed after May, 2018, must be accurately reported to the COGCC.  Apparently under no rush to realize the “never again” dream, the operators have 30 days after installation to get this information to the agency.  The COGCC has designated this information “critical infrastructure.”  As such, the operators have the right to deny local governments access to the information, though COGCC Director Lepore expressed the hope they wouldn’t.

Under the forgoing provisos, the COGCC can make the information available to local governments upon request if a confidentiality agreement is signed.  The data will be accurate to within 3 feet of the actual flow line. The agency pledges to do everything in its power to see that the information is not available under Colorado’s Open Records Act, though the evidence is scanty that terrorists use the public’s right-to-know as a preferred vehicle for mayhem.   A less accurate map may be available to the unruly public on the COGCC’s website.

Operators will also be required, for some unclear reason, to register with the old, semiprivate utility information database, Call 811—before you dig.  The Call 811 system is used primarily by local contractors to determine if buried utility lines are present before excavating. This rickety requirement is fraught with numerous problems, not least of which is the fact, according to the COGCC’s own analysis, that most oil field pipeline accidents don’t result from excavations(1%), but from corrosion(41%), worker error(23%), and joint failure(12%). I guess this requirement might help with managing that pesky one percent.

It gets worse. Existing flow lines like the one that caused the explosion in Firestone will not be mapped.  Their beginning and end points will be identified, but in most cases the exact location of the underground line leading from point A to point B can’t be accurately determined except at substantial cost, and in the case of older and more commonly used plastic lines, not at all without excavation. In this regard, PDC Energy added that it has 20,000 flow lines and not one of them could be accurately located.  PDC is the corporation fined $22 million for noncompliance with long-standing state methane leak regulations last year.

The industry is given another year and half to get this spotty information to the agency.  The new rules also require walking these flow lines to look and smell for leaks or ruptures, but as somebody remarked, how can you walk a line if you don’t know where it is?

As for abandoned flow lines, some counties want the industry to not only disconnect them but to remove them under the concept that if you make a mess you clean it up. John Benton, the commission chair and an executive with Caerus Oil And Gas, LLC., a pipeline company, put forced removal of abandoned lines to bed by saying that closing off each end of the flow line and bleeding it was enough.  He also remarked that his company abandoned 20,000 feet of flow lines last year.

No one reminded him that if the flow line that caused the Firestone fire had been physically removed there would have been no explosion, and human error would have been eliminated as a risk factor.  Neither was he reminded that some might see his intercession as purely economic, and a conflict of interest.

Even more importantly the effort to realize the official pledge of  “never again” ignored the great threat gathering lines pose to public health and safety.  Largely unregulated, gathering lines are the larger lines that lead from flow line collection points to larger processing and storage facilities downstream in the pipeline system.  They can be 24 inches or larger in diameter and carry greater pressure.

Based on extrapolations from PHMAS records, there may be well over 16,000 miles of gathering lines in the state, only 800 miles of which are federally regulated. If the lines are in areas where the population per square mile is less than 40, ten homes times 4 per household, they are exempt.

Like the state’s set back rule, this snapshot is basically worthless.  A housing project can come in the next day and invalidate the regulatory exemption. Since most new drilling in Colorado is increasingly urban, the old 5 percent is doubly suspect.  Conversations with PHMSA suggest it is aware of the dangers, but in the age of Trump, it is unthinkable the feds will do anything.  And the COGCC is obviously not interested in this aspect of “never again.”

The folly of the two day circus is perhaps best revealed in Chairman Benton’s recommendation, at the close of the second day, that a blue ribbon panel be established to tie up the many lose ends. The commission’s overall failure was reinforced when commissioner Boigon, the industry lawyer, asked Director Lepore if the proposed rules, whatever they might be, would have prevented the Firestone tragedy.  Lepore, employing his usual verbal pirouettes, gave an answer that was indecipherable, though obviously pleasing to himself.  Lepore resigned several days later.

How the governor will act on Benton’s recommendation is unknown.  But it is unlikely he will call upon the CEO of XTO Energy, a subsidiary of Exxon/Mobile, to fly in from Texas to co-chair it, as he did in selecting his earlier failed blue ribbon panel of 2014.  XTO has its hands full fighting a major blowout and gas leak at a fracking site in Ohio that started on February 14 and is still not controlled.  Fearing an explosion like that at Windsor, residents within a mile of the site are prevented from entering their homes until the leak is contained.  A giant crane atop the blown out well has complicated efforts.

The resignation of Lepore, while causing momentary glee in the many who have grown tired of his dance, is not significant.  There will be gender change, but the new director is just another lawyer out of the Governor’s same regulatory factory.  She has worked as an attorney for the COGCC before.

Lepore, like his predecessors, will go to work for the industry he regulated.  Even before his resignation was announced, his picture was on the webpage of a pretentiously latinate lobbying group calling itself, Adamantine.  That’s “Shut Up, Oil’s in Charge” to normal people.

The head of Adamantine is the former head of the Colorado Oil and Gas Association, Tisha Shuller.  Lepore’s picture with his new title as chief counsel and legal advisor was quickly taken down after Adamantine was reminded that there is a 6 months grace period to be observed before a state employee can go to work for an industry he or she was regulating.  The Governor’s office said Lepore was aware of that requirement, but it did not comment on the fact that Colorado law prohibits a state employee from negotiating an employment contract with a company in an industry he or she is regulating.

Perhaps the most dispiriting thing of all during this 2-day Barnum and Bailey event was the fact that not once was the recent and momentous Martinez court decision mentioned as informative or necessary to the deliberations. The Martinez case was brought by a group of Colorado kids accusing the COGCC of not fully considering their rights to a livable planet.  The court ruled for the kids.  In short, the court said that the COGCC’s charter required it to protect the public’s health, environment, and wildlife as a condition for approving oil development.  The court rejected COGCC’s argument that they could only protect public health half of time, for they had to encourage oil and gas development the other half of the time.

The agency has appealed the decision to the Colorado Supreme Court, but the Martinez decision is still the law of the state until the Supreme Court says otherwise, if indeed it ever does. Openly defiant, the agency is disregarding the law.  How this may have influenced Lepore’s decision to resign, or being forced to resign, is unknown.  But clearly the COGCC is a rogue agency.  The depth of denial or ignorance within the agency is exposed in the remarks of the agency’s public relations spokesman, Todd Hartman.  Shortly after Lepore’s announced resignation, he responded to public anger over yet another oil leak, of which about 12 are reported weekly, by saying the COGCC must maintain a delicate balancing act “because the oil and gas industry has the right to operate.” 

Governor Hickenlooper could have perhaps been warmer when publicly expressing his appreciation for the job Lepore did.  He undoubtedly hopes a change in directors will give him some breathing room in quieting the growing resentment of citizens in the state who have to deal with the totally upside down law which unforgivably and unconstitutionally favors the oil industry over the lives and fortunes of its citizens.  Like many truly ugly bills in the age of big money, the legislation’s name is deceptively anodyne: the Colorado Oil and Gas Conservation Act.

Hickenlooper blissfully continues to support the extraction industry’s supremacy in the state.  Knowing that term limits are coming at him, he’s putting state government behind and picking up the mantle of a national leader.  He’s training his talents on saving corporate health care for the nation.  America beware.  Corporate friendly Hickenlooper on a ticket with a gauzily resurrected Joe Biden might be sold to many old, centrist Democrats as the Second Coming, but assuredly, it would be of the Yeatsian variety with no moral center at all.