Tag Archive for Colorado Constitution

Our Longmont, others act to protect fracking ban

FOR IMMEDIATE RELEASE: March 11, 2013

CONTACTS:
Kaye Fissinger, 303-678-7267 (Our Longmont)
Michael Bellmont, 303-678-9470 (Our Longmont)
Bruce Baizel, 970-903-5326 (Earthworks)
Shane Davis, 303-717-4462 (Sierra Club)
Sam Schabacker, 720-295-1036 (Food & Water Watch)

Coalition Acts to Protect City of Longmont’s Ban on Dangerous Hydraulic Fracturing

LONGMONT, CO – Today, a coalition of community, public health, consumer and environmental organizations filed a motion in the Weld County District Court to intervene in the Colorado Oil and Gas Association’s lawsuit that seeks to invalidate Longmont’s ban of the oil and gas practice known as “fracking” and related surface activities, such as storage of toxic post-fracking fluids. This ban was instituted by the citizens of Longmont in an amendment to the City Charter, Article XVI , the Longmont Public Health, Safety and Wellness Act.

The people of Longmont by an overwhelming vote of 60% (more than 25,000 people), voted in the November, 2012 election to amend the City Charter to ban fracking, affirming their intention “to protect themselves from the harms associated with hydraulic fracturing, including threats to public health and safety, property damage and diminished property values, poor air quality, destruction of landscape, and pollution of drinking and surface water.” This historic ballot measure was spearheaded by Our Health, Our Future, Our Longmont (Our Longmont).

“We are taking this action because we hope to affirm the rights of citizens and communities to guarantee a safe and healthy environment for themselves and future generations,” said Michael Harris, Director of the University Of Denver Sturm College Of Law Environmental Law Clinic. He continued, “We are honored to represent Our Longmont, Food & Water Watch, the Sierra Club and Earthworks.”

The Colorado Constitution confers on all individuals certain inalienable rights. These rights are expressed in the Colorado Oil and Gas Act, which requires that oil and gas resources be extracted in a “manner consistent with the protection of public health, safety and welfare.”

“The extraction process of hydraulic fracturing has not been proven to be safe,” said Kaye Fissinger, managing member of Our Longmont. “Further, the State of Colorado has created a situation where the commission that oversees the oil and gas industry has an inherent conflict of interest. It cannot simultaneously foster the development of oil and gas and protect the health, safety and welfare of the citizens.”

“The dangerous, toxic practice of fracking has been a matter of grave importance to the people of Longmont since October of 2011,” said Michael Bellmont, spokesperson for Our Longmont. “To assure the protection of those in our community, Our Longmont undertook a petition drive to place the charter amendment on the ballot. In November, our citizens exercised their rights to self-determination, also guaranteed under Article XX of Colorado’s Constitution. In light of the Colorado Oil and Gas Association’s attack, it is necessary that citizens participate in the judicial process to guarantee our constitutionally protected rights. It is for this reason Our Longmont and others have moved to intervene,” Bellmont said.

Food & Water Watch provided invaluable assistance to Our Longmont throughout the effort to qualify and pass Longmont’s charter amendment. Sam Schabacker, Mountain West Regional Director for the organization, said, “We were delighted to be able to help the citizens of Longmont prohibit the dangerous industrial practice of hydraulic fracking and are pleased to be able to continue to support them. We have every confidence that the courts will reject the claims of the Colorado Oil and Gas Association and preserve Longmont’s constitutional and home rule rights.”

According to Eric E. Huber, Senor Managing Attorney for the Sierra Club Environmental Law Program, “This lawsuit could have a precedential effect throughout Colorado as other communities work to pass similar prohibitions on fracking and the disposal of its waste products within their boundaries.”

Bruce Baizel, Director of Earthworks’ Oil & Gas Accountability Project, said, “The citizens of Longmont took this action because they don’t trust state regulators to protect them. Rather than sue communities acting to protect their public health, industry and the state should be addressing legitimate community concerns by putting the public’s health before industry profits.”

Our Health, Our Future, Our Longmont, is a group of concerned citizens from throughout Longmont. We believe that Longmont has a constitutional right to protect the public health, safety, and welfare of our community. Our goal is to preserve the quality of life in our exceptional city. By so doing we will preserve our economic vitality, our home values, our water, parks, wildlife, lakes, trails, streams, open space, and recreational areas for ourselves and future generations. www.ourlongmont.org,

Food & Water Watch is a consumer organization that advocates for common sense policies that will result in healthy, safe food and access to safe and affordable drinking water. It’s essential that these shared resources be regulated in the public interest rather than for private gain. www.foodandwaterwater.org,

Sierra Club is America’s largest and most influential grassroots environmental organization with more than 2.1 million members and supporters nationwide, including 160 members in the City of Longmont. In addition to creating opportunities for people of all ages, levels and locations to have meaningful outdoor experiences, the Sierra Club works to safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying and litigation. http://rmc.sierraclub.org

For 25 years, Earthworks has been dedicated to protecting communities and the environment from the impacts of irresponsible mineral and energy development while seeking sustainable solutions. http://www.earthworksaction.org.

Oil and Gas Law Unsettled

Colorado constitutionIn a letter to the City of Longmont, the Colorado Oil and Gas Association insists that the citizens of Longmont do not have the right to protect their property, safety and health from the negative impacts of hydraulic fracking. Industry’s refusal to respect these inalienable rights is premised on their insistence that we must instead “respect the primary regulatory authority vested in the Colorado Oil and Gas Conservation Commission (COGCC).”

Our Health, Our Future, Our Longmont believes that the Colorado Constitution gives all citizens the right to protect their property and live safe, healthy lives.  It is the authority to which all of Colorado’s statutes must be subordinated and thus it does not give the oil and gas industry the freedom to damage our property values, endanger our families or pollute our air and water.

Despite protestations to the contrary, case law covering the interaction between the COGCC, Colorado’s designated agency for oil and gas development, and local governments is unsettled law.  Colorado case law is a mixture of rulings that apply to dissimilar forms of municipal government. Such disparate rulings have been cobbled together and used by the oil and gas industry and the COGCC to intimidate municipalities from exercising their responsibilities to protect their citizens and their communities.

Municipal government comes in many forms, among which are counties, home rule cities and statutory towns and cities, each of which allows for different degrees of authority and independence. Among the powers afforded home-rule cities like Longmont is the authority to regulate the use of land on the basis of its impact on the community or surrounding areas and to regulate the use of land so as to provide for its orderly use and the protection of the environment in a manner consistent with constitutional rights.

The “findings” included in Our Health, Our Future, Our Longmont’s proposed amendment to Longmont’s city charter identifies another constitutional protection.  “The Colorado Constitution confers on all individuals in the state, including the citizens of Longmont, certain 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,’ Color. Const. Art. II, Sec 3.”

Hydraulic fracturing (fracking) violates these constitutional rights by threatening our health, endangering our children, diminishing property values and contaminating our water and air.

Frequently cited case law has not ruled on the constitutional protections afforded Colorado citizens but instead has focused on the statutory authority delegated to the COGCC.  Also, new technology and the effects of multi-well pads using directional high volume fracturing have not been considered in past case law.

The COGCC, through the Attorney General’s Office, and the oil and gas industry have been seeking a court ruling on complete preemption of municipal control for years.  The courts have refused this interpretation.  As recently as the 2012 Colorado legislative session, a senator sponsored a bill (SB-88) that would have accomplished that objective for the oil and gas industry.  The bill was killed in committee.

The arguments that are being put forth by the industry and COGCC are intended to intimidate local governments and dissuade Colorado citizens from asserting and claiming their Constitutional rights.  Such arguments are inaccurate and blatantly indicate that the issues surrounding oil and gas drilling in Colorado have not been legally settled.

Neither the courts nor the COGCC have adequately addressed the Oil and Gas Act’s legislative mandate to “foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources” (emphasis added), the first and presumably overarching restriction on all other directives contained within the Act.

The proposed Longmont charter amendment seeks to restore constitutional and statutory protections for our “health, safety, and welfare.”  It does not seek to ban all drilling for oil and gas within the Longmont city limits, but to ban only one specific, particularly harmful extraction method, hydraulic fracturing, in order to guarantee and preserve constitutionally protected individual rights to health, safety and well-being.