Tag Archive for www.ourlongmont.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.

How much risk to take? Let the people decide.

Courtesy of David Schemel

It is the middle of the night as I write this. Many things keep me up at night. Sometimes I worry about my small business. Sometimes I worry that my children will be scarred for life by my poor parenting skills. Tonight I am awake because I’m worried about fracking. Working these past months to keep fracking and oil and gas development a safe distance from my family isn’t something I enjoy.

However, whenever I think “what is all this for?” I think of my friends, neighbors and family. I talk to my best friend in Ohio about my concerns about the chemicals in the air near oil and gas wells; about whether we could sell our home in the current market if a multi-well pad is drilled, as originally planned, near our home. She has a 5-year-old child with autism. He doesn’t speak. I tell her I know my concerns are nothing compared to her realities. But she tells me not to give up. She tells me about the many hours of sleep she loses because she wonders what caused several women on her street to give birth to children with autism. She wonders what was in the air, the water, the food she ate out of her garden. She wishes she had known and she could have done something to change her son’s lot in life.

I think about my neighbor who was an athletic, seemingly healthy, non-smoking 50-year-old who recently died of lung cancer. Another neighbor told me he had wondered in his last days if he should have gotten radon mitigation done on his home. I think of his wife, who will be haunted by all the “what ifs” about the environment he lived in that might have caused his death.

I don’t wish the “what-ifs” on anyone. And I don’t wish the “it’s too late now” on my family and neighbors. I am not the type of person who enjoys a good fight. I just want to be able to sleep at night.

I don’t think every person living next to every well will get sick and die. I don’t think the sky is falling. But I do think as time passes, we will likely find — like asbestos, lead paint, cigarettes — that living close to oil and gas wells has made some people sick. We will find that the regulations in place and the government’s ability to enforce them have been inadequate to prevent this from happening.

I understand people depend on oil and gas for their livelihood and that we all depend on oil and gas in a multitude of ways. This is a complex issue for all of us. However, I don’t think that not drilling everywhere we possibly can is the end to jobs and the economy or will guarantee we will never be free from foreign sources of energy (talk about “the sky is falling”). I believe American ingenuity and common sense can find a solution without destroying our economy or our communities in the process — and without compromising our constitutional rights to health and safety.

Our children, our families and our homes are worth, well, everything. Just talk to someone who has lost a mother, brother, child to a disease, or has watched them struggle with a health issue, like severe asthma. These are not risks we should take lightly.

So this weekend, I will ask my neighbors to sign a petition for a ballot initiative to ban oil and gas wells using hydraulic fracturing from city limits. I think it’s time we put the choice into the hands of the residents on whether they want a future of “what ifs” or whether they want one less thing to keep them up at night.