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for people who care about the West

Front Range drilldown

In the fight over oil and gas regulation, local control gains ground.

 

FORT COLLINS, COLORADO

On a chilly March night, city councilmembers faced an unusual sight: citizens imploring them to increase taxes. They had packed council chambers to plead for a proposed ban on hydraulic fracturing, or fracking, within city limits. Industry and state officials, including Gov. John Hickenlooper, intimated that such a move could get Fort Collins sued for overstepping local authority.  Anti-fracking proponents didn't blink at the potential costs of a lawsuit. One told city leaders: "Feel free to raise my property taxes."

Since 2006, the number of oil and gas wells being developed has nearly doubled along Colorado's Front Range, thanks to advances in technologies such as horizontal drilling and fracking (injecting chemical-laden fluids into wells to stimulate production). But the energy boom in a region of 4.3 million people, stretching from Fort Collins to Pueblo, is colliding with the steady growth of cities and farming towns turned bedroom communities. Wellpads and pumpjacks operate close to houses, schools and community centers. Fracking fluid and wastewater spills, air pollution spikes and evidence of groundwater contamination have roused suburban activists who are tired of waiting for state or federal laws to address their concerns.

Despite having less than a dozen active wells in the city, Fort Collins got the message. Councilmembers approved a citywide ban to wild applause and cheers.

The movement to gain local control over drilling and fracking is taking off around the West, from rural New Mexico to Southern California. Using moratoriums and bans, ballot initiatives and referendums, activists hope to win politically, if not officially. They may not halt energy development, but they're already influencing how drillers operate and forcing states to improve industrial oversight.

"We're getting most of the battles where drilling starts to move into areas that haven't seen it before -- where it's almost in some suburban backyards in places," says Bruce Baizel, the Durango, Colo.-based energy program director for Earthworks and the Oil & Gas Accountability Project. "Combine that with a sense that the states are not adequately regulating or enforcing the regulation, and that really sets it off."

Though grassroots groups are clamoring for local action, city and county governments remain handcuffed, because Colorado and other Western states have authority over energy development. Cities can set their own land-use rules, particularly if they have "home-rule status," which enables additional local controls. But both the state and industry argue that local governments cannot prevent an energy company from drilling, since that would deprive it of its mineral-development rights. A 1992 Colorado Supreme Court case struck down a drilling ban in Greeley.

Colorado's Oil and Gas Conservation Commission, a nine-member board appointed by the governor, sets oil and gas rules for the state. That includes establishing measures to reduce and mitigate air pollution, impacts to groundwater and rivers, and nuisances such as dust and noise. When fracking took off in more rural parts of Colorado in the 2000s, the state government, under then-Gov. Bill Ritter, responded to public pressure by creating tougher standards for aquifer protection, waste management and removal, completion and reclamation of wells, and disclosure of fracking chemicals.

Ritter, who now runs the Center for the New Energy Economy at Colorado State University and advises other states on energy development, says Colorado's program is a model, even exceeding some federal standards. "When we passed our set of rules, we were the first state across the country to modernize them," Ritter says. But with Front Range development occurring slowly, "we didn't pay the same amount of attention to gas extraction taking place in close proximity to inhabited communities."

That suburban rush has come as technological improvements have made developing shale rock formations, which exist beneath the Front Range and hold both natural gas and oil, more feasible. Fracking has increased domestic natural gas supply so quickly, there's now a glut. Prices have dropped, so companies are targeting oil. The Niobrara shale play, beneath northeastern Colorado, went from producing 83,000 barrels of oil in 2008 to over 4.1 million barrels in 2012, and analysts say the figures could quadruple by 2020.

As drilling has moved into more populated areas, the oil and gas commission has increased drilling setbacks and added several rules, in part because of public concern, says Ginny Brannon, the assistant director for water and energy in the state's Department of Natural Resources. In early 2013, the commission established mandatory groundwater sampling within half a mile of a well before and after drilling. Colorado is the only state in the country that requires post-drilling monitoring, Brannon adds.

This spring, Colorado's Legislature considered several bills to defuse the Front Range fracking battles. Legislation would have enforced stricter groundwater monitoring in the booming Wattenberg Field just north of Denver (which is now subject to less stringent requirements than most of the state), increased operator fines for spills, and tried to reduce conflicts of interest on the oil and gas commission. Several bills moved rapidly through committees, but with Gov. Hickenlooper pressing for their defeat, all of them failed.

On the Front Range, anti-fracking activists find themselves up against a governor whom many of them helped elect. A petroleum geologist-turned-downtown-Denver-developer-turned-politician, Hickenlooper has been a conservation leader on other fronts, but he has surprised environmentalists with his drilling zeal.

"The state is telling local governments to just trust us on oil and gas regulations, but it's difficult for the public to have much confidence when the governor goes to Congress and (boasts about) drinking fracking fluid in front of a Senate hearing" as he did last February, says Mike Freeman, a Denver-based Earthjustice staff attorney.

Instead, with the push for reforms at the Capitol and communities backing local bans, Freeman says a resistance movement is "snowballing on several different fronts."

Jodee Brekke, a human resources manager and single mom raising three kids outside Denver in Commerce City, had never heard of fracking until she saw a wellpad being cleared behind a Starbucks, a quarter-mile from her home, in November 2011. Concerned that her daughters' nighttime nosebleeds and "strange rashes" might be related to drilling underway in the area, she and others questioned local officials about the lack of neighborhood consultation. They wondered whether fracking would trigger the movement of toxic plumes left beneath the nearby Rocky Mountain Arsenal, a former chemical-weapons facility. A committee of citizens, industry and city and state representatives eventually brokered agreements for companies not to drill within a mile of the Arsenal, to notify locals before drilling new wells, and to offer nuisance-control plans. This year's state rule changes took similar steps. But Brekke felt local drilling should be suspended until more studies were done. The process, she says, is "a disaster."

Frustrated, she began networking with moms in other cities, and last summer, they organized several local grassroots groups into the Colorado chapter of the Mothers Project, a national anti-fracking movement. Instead of taking her kids swimming last July 4, Brekke dragged them to Longmont to collect signatures to get a fracking ban initiative on the November ballot. "We're not working for companies," she says. "The only thing we're looking out for is our kids."

The Mothers Project and others have pushed local governments to hit the "pause" or even "stop" buttons on fracking through moratoriums and bans. Allies, including Wes Wilson and Phil Doe, both former government scientists and whistleblowers, have served as technical experts, updating activists on new research linking fracking and health risks. The Pennsylvania-based Community Environmental Legal Defense Fund has worked with people in Colorado, New Mexico and elsewhere to draft local bans and ordinances rooted in recognizing the legal rights of communities and nature.

In the growing bedroom community of Erie, between Denver and Boulder, concerned parents formed Erie Rising in late 2011 after fracking began just a few hundred feet from two elementary schools. Several families claim the activity has increased cases of asthma, migraines, rashes and nosebleeds. Although the link between illness and fracking is elusive, a federal study has found that the town's air quality, including levels of propane, butane and volatile organic compounds from oil and gas drilling, is as much as 10 times worse than that of notoriously polluted Pasadena, Calif. In response, town trustees passed an emergency six-month drilling moratorium last March, and surrounding Boulder County enacted a yearlong moratorium.

Longmont, also in Boulder County, went even further. In July 2012, the city council passed oil and gas rules stricter than the state's, and prohibited residential-area drilling. The state promptly sued Longmont for trespassing on its regulatory territory.

Hickenlooper has called the Longmont lawsuits the "last resort" in asserting state authority over drilling. Brannon says the state discussed other options with city officials more than a dozen times, noting that after its moratorium, the town of Erie chose to broker individual agreements with operators, setting voluntary standards beyond state requirements.

"We don't like bans at all," says Brannon. "If you ban hydraulic fracturing, you ban drilling. We'd lose our mineral development that provides energy we all use, and it would cause us to lose a lot of jobs, and millions of dollars in severance tax payments, royalty payments, and grants that come indirectly through those dollars."

Sixty percent of Longmont voters passed a citywide fracking ban in November 2012, spawning a second lawsuit from industry, which has brought in the state as a co-plaintiff. In December, advocates for an outright ban in Boulder County became so rowdy at a county hearing that officials accused them of "mob harassment" and filed a police report.

The intense opposition has spread beyond Colorado. In Idaho, where 2012 legislation outlawed local prohibitions of oil and gas development, fracking on state lands triggered protests this June in Boise and other cities. Over 100 California groups recently banded together to push for a statewide fracking moratorium and other drilling controls. The coalition formed in response to mounting pressure to expand development of the 1,700-plus-square-mile Monterey Shale formation. After several New Mexico cities and counties enacted tougher rules and fracking moratoriums, this spring Mora County in northern New Mexico became the first U.S. county to fully ban fracking.

T he groundswell of local fracking bans is often based on unjustified concerns, says Tisha Schuller, CEO of the Colorado Oil and Gas Association, an industry trade group. "The discrepancy is between towns with experience and those without," she says. "It's very different what people are afraid of," adding that communities with a history of energy development tend to recognize that regulated drilling can coexist with towns.

That's generally the case in Weld County, the heart of the Niobrara shale boom. Weld has over 18,000 wells, far more than any other Colorado county. It also leads the state agricultural production and is among the nation's fastest-growing counties. In Fort Lupton and Firestone, pumpjacks and drilling pads sit next to new homes. But their proximity has triggered little outrage in the county, where "conventional" drilling has occurred for decades.

Fracking bans are "further exacerbating unwarranted fears," says Barbara Kirkmeyer, a Weld County commissioner. Kirkmeyer claims the state oil and gas commission, by caving in to activists and increasing regulation, impedes responsible development. The new expanded setbacks could force companies to put equipment in irrigated farm fields, disrupting watering and cropping patterns, in order to keep it away from homes. Weld's own land-use setback rules are more lenient, Kirkmeyer adds, creating a dilemma: The energy industry has to keep 500 feet from houses, but new residential development can still build within 150 feet of existing energy infrastructure. Kirkmeyer and other Weld officials are so frustrated with the new oil and gas rules, recent state gun-control laws and renewable-energy goals that they're leading a secession movement.

But even in Weld County there's an anti-fracking groundswell. This spring, a citizens group, Greeley Communities United, appealed plans for 16 or more new wells, some just 350 feet from homes that were approved before the new state rules go into effect.

Meanwhile, 100 municipal and county leaders from across Colorado signed a letter to Hickenlooper this June, urging him to consider more local input in setting rules to recognize the massive gap between the state's efforts and its citizens' concerns.

Longmont's pending court cases will also test whether the state holds sole authority over energy planning. If the judge interprets the impacts as a "purely local" concern, communities may be able to win. A New York state court decided in favor of two towns' bans in early May, citing local governments' zoning and land-use powers.

In Fort Collins, a few months after enacting its fracking ban, the city council failed to renew a more sweeping drilling moratorium after the city's lone existing operator -- exempted from the restrictions -- threatened legal action if he couldn't drill new wells. Irate activists collected 8,000 signatures to force a citywide vote on a five-year fracking moratorium this November. The city of Boulder will likely vote on a three-year moratorium, while the surrounding county recently extended its existing one for another 18 months. Citizens in nearby Lafayette are going even further, pressing for a city charter amendment to outlaw all new oil and gas development. In staunchly conservative Colorado Springs, a grassroots group, Colorado Springs Citizens for Community Rights, has filed its own lawsuit to allow it to bring a fracking ban before voters. Even a statewide fracking ban initiative is afoot.

The campaigns indicate activists aren't relenting -- or waiting for a judicial victory or for local or state politicians to get involved. Besides, says Brekke, "What's (the governor) going to do? Sue us all?"