Environmental and conservation groups in Colorado have much to cheer about as Earth Day approaches on April 22, celebrating an appreciation of the earth’s natural environment and resources that has played out at the Legislature and across state and local governments.
The most recent reason for applause came Wednesday, April 18, as Gov. John Hickenlooper announced the results of a 12-member task force assembled by executive order on Feb. 29. The task force was charged with making recommendations related to oil and gas operations in Colorado that grew largely from public concern about increased hydraulic fracturing operations — a lot which is occurring in the metro area such as Arapahoe County where drilling operations have expanded. The task force received more than 1,600 public comments over a six-week period.
The task force’s primary recommendation calls for increased collaboration, most directly with local governments, in bringing oversight and accountability to the industry.
“The Task Force does not make recommendations for new laws, but instead recommends a collaborative process through which issues can be resolved without litigation or new legislation,” stated Hickenlooper in a letter from chairman of the task force, Mike King, executive director of the Department of Natural Resources.
The task force generally recommended that issues of concern facing the Colorado Oil and Gas Conservation Commission should be resolved on an issue-by-issue basis through a “robust stakeholder process.” The COGCC is the state authority over oil and gas operations.
The task force offered as an example the Colorado Association of Homebuilders, which called for a stakeholder group to discuss drilling setbacks, an issue that was addressed at the Legislature this year but failed in committee.
House Bill 1176, sponsored by Rep. Su Ryden, D-Aurora, would have required a setback of 1,000 feet from schools and residences in proximity to hydraulic fracturing drilling operations. The bill died in House Local Government on Feb. 6 on a vote of 8-3.
The stakeholder group has been convened to address the still uncertain issue after the Legislature failed to take action. The group was expected to meet again on Thursday.
In regard to regulations, the task force chose not to get involved in making regulatory recommendations, saying, “The Task Force discussed jurisdictional issues regarding substantive regulations but determined that drawing bright lines between state and local jurisdictional authority was neither realistic nor productive.”
Instead, the task force called for collaboration between local and state authorities, which comes as a sign of hope for conservationist groups such as Colorado Conservation Voters, one of the state’s largest groups of conservationists, and was represented in the task force’s membership.
“Enhancing the local government designee process is really going to increase accountability, which will ultimately help protect public health and the environment,” said Faith Winter, program director of the organization.
The task force recommended that so-called “local government designees” receive training and oversight from the COGCC. The hope is that by bringing the latest information to local governments regarding drilling practices, the designees will then have the ability to identify issues and bring resolve and accountability.
Two bills addressing local government were unsuccessful in the Legislature this year. House Bill 1277, sponsored by Rep. Matt Jones, D-Louisville, would have given some control over oil and gas regulations to local governments. That bill was killed on Feb. 20 in the House Local Government Committee on a Republican party-line vote of 6-4. Senate Bill 88, sponsored by Sen. Ted Harvey, R-Highlands Ranch, would have specified that the regulation of oil and gas operations is a matter of statewide concern, to be regulated by the COGCC, not local jurisdictions. The Senate Local Government Committee killed the bill on Feb. 16 by a vote of 4-1.
The two unresolved competing pieces of legislation mean that local control concerning drilling practices is still very much uncertain and will likely end up back in the Legislature or in the courts.
Tisha Schuller, president and chief executive of the Colorado Oil & Gas Association, signaled that the local control issue will likely pop up again. “The potential for new county and municipal regulations that conflict with state primacy is a priority concern,” she said. “It’s not tenable to expect Colorado to keep attracting business investment if cities and counties con-tinue to propose unique regulations.”
Winter said she was originally skeptical of the task force and the results is might produce, but she says she is now hopeful for the future, and confident that the recommendations at least offer framework for how to avoid legislative action or court orders.
“When this was started, we were a little bit skeptical given some of the governor’s statements and the makeup of the task force, but ultimately we’re really happy and pleased with where the task force came out,” she said.
“We need to give it six months to see how it works; to see if it does better and if local government designees actually help,” Winter continued. “Does it find a way for the public to be involved and for questions and concerns to be addressed?”
Hickenlooper is also hopeful, stating, “The task force has provided a roadmap for how best to deal with issues of local control.”
Ceding federal lands
Oil and gas regulation and accountability isn’t the only thing conservationists have to cheer about this Earth Day. A measure that would have ceded federal lands in Colorado to the state died in committee on Monday.
House Bill 1322, sponsored by Rep. Jerry Sonnenberg, R-Sterling, would have required the federal government to turn over 23 million acres of federal public lands to the state. The legislation is part of a movement known as the new “Sagebrush Rebellion,” a resurgence of the effort in the 1970s and 1980s to force the federal government to give more control of government-owned Western lands to state and local authorities.
The governor in Utah has already signed a similar effort, and the Arizona Legislature is working on an almost identical bill to HB 1322.
Sonnenberg says that the federal government originally promised that the land would be used to create new states, and that whatever wasn’t used should have been turned over to them, especially considering that the states promised not to tax the federal government.
“We made a promise to the federal government; we made a promise that said we will not tax your lands as you take time to distribute them,” said Sonnenberg.
He points out that a U.S. Supreme Court case involving Hawaii allows for Colorado to demand the land from the federal government. Sonnenberg was not familiar with the specifics, but the closest case found by The Colorado Statesman was in 2009 when the U.S. Supreme Court ruled that Hawaii had the authority to sell 1.2 million acres of state land without resolving prior claims by native Hawaiians.
The issue in that case really had to do with an examination of Congress’ 1993 Apology Resolution, which acknowledged the overthrow of the Kingdom of Hawaii at the hands of American participation. It stated that the native Hawaiian people never relinquished their inherent sovereignty over their national lands. In the Supreme Court ruling, the court found that the resolution was more symbolic and did not change the title to the public lands of the State of Hawaii, thus restoring Hawaii’s authority to sell state land.
“Finally someone had the fortitude to take on the federal government to say, ‘You know what. Your forefathers assured us that you would not use those federal lands,’” said Sonnenberg.
HB 1322 would have exempted national parks, military bases and Native American reservations. But critics still pointed out that Bureau of Land Management property and national forests like San Juan would have been turned over to the State Land Board for management.
Sonnenberg had originally intended for the federal government to sell to private buyers any of the federal lands, or face a property tax bill from the state. But he ditched that effort and amended the bill to just require the feds to cede the land to the state.
Questions were raised whether the state even has the legal authority to make such a demand of the federal government. Opponents also pointed out that it would have been an increase in government to manage the lands, with estimates beginning at $27 million.
“It would cost $40 million just to manage and create the largest super agency within the Department of Natural Resources that the state has ever had to create,” said John Smeltzer, with the Colorado Wildlife Federation. “[Sonnenberg] would have the distinction of having acquired the largest acreage of state land in the history of this state since its enactment.”
Sonnenberg, who is usually for shrinking government, had to jokingly admit that the legislation would have increased the size of at least one department by as much as 328 employees.
But beyond the concerns over increased government, conservationists and tourism industry stakeholders raised fears over mismanagement of the lands acquired by the state, arguing that the federal government is currently doing a good job. They worried that change would break what’s not broken, and could lead to either more expensive public lands, or deteriorating public lands.
“Our group sees no proven need for any change in the management of Colorado’s taxpayer and citizen-owned public lands,” testified Steve Bonowski, with the Colorado chapter of Conserve America, formerly Republicans for Environmental Protection.
“The bigger frustration is why this is happening in Colorado when the people seem to be set against it,” said Scott Braden with the Colorado Mountain Club.
Rep. Robert Ramirez, R-Westminster, joined in the 8-5 vote by the House Education Committee that killed HB 1322. Ramirez didn’t believe the argument that the measure would lead to a deterioration of public lands, as so many critics had argued. But he was concerned with growing government. He added that as a result of the controversy, it probably wouldn’t get through both chambers anyway.
“This is a bill I believe that will simply get through the House and be another futile effort,” he said. “So I believe it’s a fight we can take on another day.”