Why it doesn’t matter whether Colorado’s fracking bans hold up in court


If anything illustrates just how contentious fracking has become on Colorado’s urban Front Range, it’s the closeness of the vote on a Broomfield ballot measure to ban the practice for five years. When results came in after the Nov. 5 election, it had lost by a mere 13 votes, triggering a mandatory recount. Last Thursday, though, after counters had tallied overseas, military and other outstanding votes, the measure had squeaked ahead by a nose – a mere 17 votes out of 20,683, triggering yet another mandatory recount.

Depending on whether that count verifies the latest results, then, all four of the fracking bans on ballots in Colorado communities succeeded. The liberal college towns of Fort Collins and Boulder also both passed 5-year moratoria on fracking within city limits, while Lafayette banned it in perpetuity, all by much greater margins than Broomfield. But because Broomfield’s more centrist political leanings – let’s call them DemoPublican – better reflect those of the rest of the state, observers on both sides of the debate have pointed to the election outcome there as a clearer indicator of where public opinion falls on whether fracking should be allowed to take place near where people live, play and work.

Fracking, shorthand for hydraulic fracturing, involves blasting a mix of water, sand and chemicals down a well to stimulate the production of oil or natural gas from layers of rock deep underground. It’s become increasingly controversial in Colorado as drilling has ramped up near suburban and urban areas, stoking worries about air and water pollution and fueling calls for local and statewide moratoria.

A motorist with strong opinions at a 2012 anti-fracking rally in Erie, Colorado.

Advocates for the oil and gas industry have dismissed the fracking bans as symbolic, pointing out that, with the exception of Broomfield and Fort Collins, none of the communities to pass them face imminent drilling. But the state’s major industry trade group, the Colorado Oil and Gas Association (COGA), took them seriously enough to dump a whopping $878,120 by Halloween into campaigns opposing the fracking bans, and still lost every fight. In comparison, the Denver Post reports, the nonprofit groups pushing the initiatives had raised just $26,000 over the same timeframe, as well as volunteer labor and in-kind donations. To be fair, that’s not all grass-roots muster: They also got both grants and indirect PR support from outdoor clothing giant Patagonia, which ran a two-page spread in a summer catalog on groups fighting oil and gas development in Colorado, spurring this defensive-sounding rant from oil and gas advocacy group Energy In Depth, as well as angry letters from pro-industry state legislators last week.

It’s possible that the four communities will face the same fate as Longmont, the first Colorado town to ban fracking in 2012, which will be in court next August for hearings in a lawsuit brought by COGA and Colorado on the grounds that regulating the industry is a state responsibility, not a local one. A few days before the final vote count for Broomfield, the Independent Petroleum Association of New Mexico and a handful of landowners filed a similar lawsuit against New Mexico’s Mora County, reportedly the first county in the nation to ban fracking.

While these lawsuits will help determine whether towns and counties can say no to drilling, in some ways their outcome doesn’t matter. That’s because these communities are already helping change a regulatory landscape that has long favored industry, particularly in Western states, simply by pushing against the status quo and elevating the issue to the national stage.

In Colorado, this wave started with the 2006 election of Democratic Gov. Bill Ritter, who promised and delivered sweeping reforms to the state’s oil and gas rules, including adding wildlife and public health representatives to the commission that oversees the industry. But it didn’t stop there, as both Joshua Zaffos and I reported this year. As the industry has boomed and nearby landowners have organized movements fueled by complaints of everything from freaky health problems to plummeting land values, Colorado has stepped up with another major overhaul of rules, including stricter setbacks from homes and streams, much better rules for notification of neighboring landowners and before-and-after groundwater monitoring. And this week, Colorado rolled out new proposed rules for curtailing the industry’s fugitive emissions of methane – a potent greenhouse gas.

Meanwhile, last week, Wyoming became the second state to sign groundwater monitoring rules that groups like Environmental Defense Fund are lauding as the standard other states should aspire to, undoubtedly a result of Pavillion citizens’ debacle with well water contaminated by oil and gas development. "Collecting base-line water quality data prior to drilling and following up with post completion sampling are necessary steps,” Richard Garrett, energy policy analyst with the Wyoming Outdoor Council, told EnergyWire. “This rule will help protect everyone: landowners, Wyoming citizens and industry."

Whatever environmentalists’ quibbles might be with the particulars of rules in Colorado and Wyoming, the question in all of this, of course, is when the push against fracking will lose its potency as a motivator for tightening oil and gas regulations to better protect air, water, wildlife and people. With the notable exceptions of rule rollbacks in New Mexico, and the U.S. Environmental Protection Agency backpedaling on fracking pollution investigations, I bet it will be awhile. After all, regulators are responding to public opinion and outrage as much as anything. And as an activist friend once commented to me, as long as kids with mysterious nosebleeds and sick grandmas turn up near drilling pads, those fighting industry will have the upper hand in the battle for hearts and minds.

Sarah Gilman is the associate editor of High Country News. She tweets @Sarah_Gilman. Photograph courtesy Flickr user Erie Rising.

Patrick Hunter
Patrick Hunter
Nov 19, 2013 07:40 PM
1. Have read that there are new fracking techniques used in Texas that don't use water.
2. If there are dangerous emissions from drilling, how can the men doing the drilling avoid getting ill? Wouldn't OSHA have data on this? Could be explosive. Like football and concussions.
3. How does COGA have "standing" to bring a lawsuit claiming a government entity can't make a regulation? My understanding is that a plaintiff must have actual damages. An association would not have damages. One of their oil producers might. The state might have a jurisdictional concern; that's different.
4. According to Gasland, the methane and other hydrocarbon emissions are huge and a major public health hazard; not to mention horrible greenhouse gases.
Carl McWilliams
Carl McWilliams
Nov 20, 2013 05:23 AM
Thank you Sarah for your excellent article.



Carl L. McWilliams
Lead Representative Plaintiff
A Federal Class Action "under construction"
Todd Williams
Todd Williams
Nov 20, 2013 06:31 AM
Not much bias here. Why is it that trying to protect the health and safety of people is considered a 'liberal' thing? Business can't exactly thrive if there isn't anyone left alive to buy their crap. And Wyoming doesn't strike me as a bastion of liberalism...so maybe you ought to believe it 'matters'.
shelia canfield-Jones
shelia canfield-Jones
Nov 20, 2013 08:06 AM
Here's the New Mexico lawsuit http://www.ipanm.org/[…]/IPANM%20Complaint.pdf
Pat 1. yes but they still use chemicals and they use air pressure which is just as risky (my husband works for a oil well service company for 33 years) 2. Yes they do have stats on what is reported. Too often the accidents that happen at the rig are not reported. The toxic chemicals used to clean equipment can cause not only skin burns but lung damage and eye damage when exposed. It happens everyday. 3. Federal laws protect the oil/gas industry from local regulations. Lobbyist have been working on suspending regulations in relations to oil/gas development in the U.S. since 1900s. This is also why they get tax breaks and exceptions to environmental rules. 4. EXACTLY but the oil/gas industry is exempted from many of those regulations.
Carl McWilliams
Carl McWilliams
Nov 21, 2013 09:01 AM
Kyle Gardner
Kyle Gardner Subscriber
Nov 26, 2013 07:59 PM
I'm not at all certain of the writer's notion that Broomfield is of a more centrist political leaning. I have lived in Broomfield for some time and this has always been a bastion of conservatism - god love 'em all. At the moment the pro-moratorium side leads by 17 votes, but a recount is due the first week in December. I would agree that regardless of a handful of votes, there is a strong surge of public concern focused on revising oil and gas regulations. The last legislative session saw several progressive bills die. One hopes this year the window of opportunity opens wide. And yet the local elections matter a great deal because Gov. Frackenlooper's litigation strategy just got more complex. So will he sue five municipalities, using taxpayer funds (yet another subsidy for the industry), or will he recognize the writing is on the wall and sign off on comprehensive legislation that not only establishes a real regulatory structure, but one which abolishes the O&G Commission? The Commission has done a wonderful job at promoting the industry, but an abysmal job regulating the industry. Time for it to disappear and be replaced by a system that truly regulates and has real enforcement capability. Like with the five year moratorium, we have to do more than cross our fingers; it's time to turn up the heat.
katie larson
katie larson
Dec 03, 2013 04:54 PM
I am may be a bit naive here, but sincerely curious. The monitoring of tests wells seem like a great idea. But what happens when the ground water is proven contaminated by the fracking? It doesn't really seem like an easy thing to fix.