Time and again it has been noted that the ramifications and unintended consequences of new and advanced technology precede regulatory legislation whether at the federal, state or local level. Such is the case with horizontal drilling and hydraulic fracturing (fracking).
Industry proponents repeatedly mislead the public when asserting that fracking has been around since the 1940s. Broadly speaking, this is true. But the technology in use since the turn of the 21st century bears no true resemblance to previous technologies. The chemicals and methods in ever greater use today were developed to access previously costly and inaccessible mineral deposits. With these procedures come severe risks to the population and its life-essential resources – water and air. Beyond these life-sustaining matters are a number of other issues related to safety, quality of life, and the environment.
Because of the foregoing, it is imperative that the City of Longmont re-examine its rush to judgment and extend the current moratorium for the full length of the previously adjudicated reasonable limit of ten months. It should go without saying that the oil and gas in the ground is not going away and will only become more valuable with the passage of time.
While it is important to acknowledge that city staff has accomplished an extraordinary amount of work in the effort to develop regulations governing oil and gas production within the city, the task is near herculean. To believe that all that needs and should be covered in addressing the issues in a mere 120 days does a disservice to staff and to all within the Longmont community.
Paramount is the issue of RISK.
It is unfortunate that the default assessment of risk has been focused on the consequences of legal challenges to either the length of a moratorium or to the regulations needed and proposed. The communications to other communities throughout the state by the Colorado Oil and Gas Conservation Commission (COGCC) and the Attorney General’s office, acting in its capacity as legal representative for the COGCC, have skewed the focus away from the community’s health, safety and welfare.
The health, safety and welfare of Coloradans are protected rights. Article II, Section 3 of the Colorado Constitution states that “All persons have certain natural, essential and inalienable rights, among which may be reckoned 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 legal framework that has been provided to the city’s boards, Planning and Zoning Commission and to the City Council by the Attorney General’s office is biased in favor of the overarching mission of the COGCC to facilitate oil and gas drilling within the state. All other issues are secondary and sacrificial to this mission. The case law before the council and the public is antiquated and was perceived through the prism of drilling conditions ten to twenty years behind current drilling methods and slick-water fracking processes.
Justice, both the scales and the sword.
Yet even in previous court rulings (as is the case with the Voss ruling), the ability of jurisdictions to establish zoning rules and regulations has been affirmed, albeit conditionally. The more recent decision in SG Interests v Gunnison Countyasserts that there is no automatic presumption of preemption in every instance or issue that the industry might assert. Many actions that the industry might ascribe to be subject to preemption actually require evidentiary hearings.
The conclusion of Longmont’s City Attorney is instructive in that it states that a right is not preempted until and unless a court of final jurisdiction says that it is. He also notes that the conclusions drawn in communications from the Attorney General’s office essentially exaggerate the actual court decisions. One could speculate as to the reasons for these exaggerations.
An assessment of the risks and protections of the community’s population are the genuine and primary risks to be addressed by the city council when determining the rules and regulations ordained by the City of Longmont.
What the people of Longmont, its council and its city staff establish at this time will serve as the foundation for all that will follow over the next several decades. The people of Longmont, since its inception, have devoted enormous vision, resources and commitment to our city. These historical gifts should not be forfeited either out of fear of litigation or out of narrow interpretations of rights that focus solely on rights as they apply to minerals.
Oil exploration and production companies have plans to drill within the city’s boundaries and on properties outside those boundaries that are owned by the People of Longmont. We have invested over $75 million to acquire Union Reservoir and surrounding properties as well as an additional nearly $9 million in other Weld County properties that are or will be impacted by oil and gas drilling.
TOP Operating has asserted use-by-right to drill as many as 182 wells in and around Union Reservoir alone. Those demands have motivated, some may say intimidated, city officials, board members, and staff to accept consolidated drilling that reduces the actual number of drill sites. However, consolidated drilling operations are the most heavily industrialized operations undertaken by the industry. They can require the equivalency of two tanker’s worth of toxic fracking fluids. They can require as many as five million gallons of water for each frack, and wells can be fracked multiple times. They require repeated truck traffic throughout the potentially 40-year life of each well. They put the water and soil at risk of dangerous spills with a concomitant damage to air quality. That description is far from exhaustive.
It has already been demonstrated that the Colorado Oil and Gas Conservation Commission has been remiss in its monitoring and remediating of leaks of highly toxic chemicals that, in some cases, remain a threat to people, the environment and wildlife. Past drilling activity employed methods and construction that are unacceptable by standards that should be best management practices in this second decade of the 21st century. The proximity of these wells to new wells poses an added risk for accident in proposed operations. The full extent of historical activity remains undetermined.
What is largely missing in all of the components that the city has thus far undertaken is community education covering the detailed lists of risk to the population, to property (both personal and public) and to the environment. Staff and council have made an admirable effort to educate the community as to the status of the process and what has been proposed and considered to date. Yet the process has skipped over the real issues that affect the people of Longmont, issues that need community understanding and input well before regulations are promulgated.
A community consensus surrounding these risks should be the driving force not only in devising regulation, but in determining the commitment and strategies that the city will undertake to prevent these risks on behalf of its citizens.
In addition to this primary task, we urge the City Council to also engage in the following during an extended moratorium.
- Commit by ordinance all revenues that the city receives from existing oil and gas leases to a reserve fund for mitigating damages to not only public resources but to civilian health, safety and well-being.
- Establish strategies and designations that prevent exploitation of oil and gas minerals in our most critical areas – around schools; in parks and on open space; near water bodies; in recreational areas throughout the city whether or not they are owned by the City of Longmont; in cemeteries; and in residential neighborhoods where all other industrial activity is already prohibited.
- Codify the city’s intention to bar the sale of city-owned oil and gas mineral rights.
- Establish an office within the Department of Public Works and Natural Resources that extends well beyond a Local Government Designee to the Oil and Gas Commission to promote and secure the city’s demands; to monitor and inspect, at our own expense, over and above those procedures in effect through the COGCC; and to establish emergency procedures covering hazardous situations that are inherent in drilling operations.
- Provide for an environmental assessment of the sensitive areas that are currently targeted for drilling.
- Investigate the policies and procedures used by various departments and agencies of the federal and state governments to protect the environment, included but not limited to the Environmental Protection Agency, the Bureau of Reclamation, the U.S. Department of Energy, the Colorado Department of Public Health and Environment, the Colorado Department of Parks and Wildlife, and the various water agencies under or apart from the afore-mentioned entities.
- Pursue state legislation already introduced or that should be introduced during the current legislative session.
- Determine the status of studies already being undertaken by the EPA and solicit preliminary findings that might and should be incorporated into Longmont’s assessment of risk to its population.
- Investigate the leveraging of financial and other resources within Boulder County in the invent that the industry should challenge the City of Longmont’s right to protect its citizens.
As is apparent, there is far more work to be done before the city is in a position to know that it has accomplished everything that it can accomplish on behalf of the people of Longmont. Even with an additional six-month moratorium there is a huge amount of work that needs to be done to adequately protect our city.