Beyond control

Let’s say you don’t want an oil and gas drill operating 250 feet away from your kitchen window. The 1000-megawatt lights keep your Yorkie in an extraordinary state of duress, and your kids won’t stay off the dang fence. What can you do?

El Paso and Arapaho counties, on the Front Range of Colorado, have felt the weight of this question lately. They both drew plans for more intensive regulations for oil and gas. But the governor, state legislators and energy companies pushed back on those efforts to increase local control.

Colorado Attorney General John Suthers responded by saying that, “responsible government requires uniform regulation,” and local control disturbs that uniformity.  Governor John Hickenlooper added that, “The state can’t have 64 or even more sets of rules,” for drilling. And Tischa Schuller, president and CEO of the Colorado Oil and Gas Association kindly offered to host meetings with local governments, “so they understand the limits of what their authority is.”

Arapaho county commissioners caved under all that pressure by withdrawing their proposed ordinances. El Paso County scaled back their regulations.

As with other areas around the West caught up in this 21st century energy bonanza, power to permit or regulate energy depends on what’s been written in state law and jurisprudence within the courts.

“What you’re basically dealing with here is a question of preemption,” said Mark Squillace, Director of the Natural Resources Law Center at the University of Colorado. “It’s tricky.

Squillace lined out three scenarios where state statutes would trump local rules by preemption. The first, express preemption, would be a statute that gives complete power to the state over the subject area; in this case oil and gas rules. Express preemption does not apply in Colorado. While the Colorado Oil and Gas Conservation Commission enforces state rules through the Oil and Gas Conservation Act, that law was not designed to overrule local authority as provided to counties under the state's Local Government Land Use Control Enabling Act of 1974, according to opinions by the Colorado Supreme Court. The 1974 act states that "the policy of this state is to clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions.”

There is also implied preemption, where legislation was drafted and approved with the intention of occupying a given field, like oil and gas, no need for explicit instructions. And the third type of preemption would arise if the effect of a local control would obstruct powers of the state.

The Colorado Supreme Court decided in a 1992 case, Board of County Commissioners v. Bowen/Edwards Associates Inc., that Colorado counties are bound by the third type of preemption. The question then becomes whether or not the proposed county regulations block the operational functions of oil and gas companies.

The proposed regulations in El Paso and Arapaho counties relate to setbacks. Yet state permits for oil and gas in densely populated areas already enforce “at least” a 350-foot setback from any building unit for wellheads and production equipment. Because the state already has a rule in place for setbacks, does that preempt localities from extending that setback by a few hundred more feet?

Herein lies the gray area, but clarification means court battles. And that’s unappealing for all parties.

“From the company’s perspective, there’s a huge advantage to adopting good neighbor policies,” said Squillace. “It makes perfect sense that at least in some cases, companies should want to come in advance and work with the county and local government in a way that is compatible.”

But when the invitations go out for companies and legislators to talk, recognizing authority stands as a vital shield against a one-way conversation. Local control advocates will argue that yielding power to companies cobbles a fragile perch on a slippery slope. That "Don’t tread on me" sentiment was expressed strongly to me by Andy Karsian, legislative coordinator for Colorado Counties, Inc., a state lobbying group representing county governments. Karsian’s witnessed out-of-state companies drop wellheads virtually in the backyards of county constituents. The companies have scoffed at county safety regulations and environmental oversights because, Karsian says, they’re accustomed to drilling in states where local governments have no regulatory power.

Whether localities can exert additional control over companies drilling in their neighborhoods will depend on the legislative and judicial framework of each state (PDF). But as Squillace alluded to, there is no replacement for frank conversation. Landowners around Pavillion, Wyoming compelled EnCana Oil and Gas USA to provide them drinking water after they complained their wells were contaminated by the companies hydro-fracturing operations. Then, the landowners decided that bottled water wasn’t enough, and their complaints evolved into the most significant EPA investigation into oil and gas operations in recent history.

So don’t bother swimming through the gray waters of statutes and jurisprudence. I just did that, and now my clothes smell. Like the wellhead churning outside your kitchen window, it’s better to tap the source and appeal for reciprocity.

Neil LaRubbio is an intern at High Country News.

Oil rig photo provided by Flickr user Imahornfan

Don't Tread On Me photo provided by Flickr user Matt Stangis