The debate over whether state regulators can responsibly govern hydraulic fracturing is leaving few parties satisfied — causing a rift between regulators themselves, the governor’s office, legislators and environmental and industry stakeholders. The upcoming legislative session, as a result, is likely going to offer heated disagreements over the growing conversation, including bills that compete with state rulemaking.
The most recent frustration stems from daylong hearings held on Monday and Tuesday by the Colorado Oil and Gas Conservation Commission (COGCC.) The commission has proposed requiring setbacks of 350 feet between wells and occupied buildings. No final decisions are likely until early January, around the time when the legislative session begins on Jan. 9.
For environmentalists, the proposed rule change does not go far enough; for industry supporters, requiring the setback is either unnecessary, or deserves a more comprehensive analysis than simply setting distance.
But in the end, the issue is about safety. Hydraulic fracturing employs the pressure of a fluid — often times including chemicals, sand and water — to increase extraction rates. Concerns have grown that water can become contaminated, especially as the process has made its way to the heavily populated Front Range. There are also noise, congestion, air pollution and resource fears.
An oil and gas rig in Weld County, Colo.
While environmentalists say they have dozens of documented cases of health impacts associated with the practice, the industry has maintained that for the past 50 years fracking has been done safely, and that there has never been a documented case with the state health department of fracking causing groundwater contamination. Regardless, safety contention has fueled the dialogue.
“The… status quo proposal giving only a 350-foot buffer — less than two city blocks — between homes, schools, business and drilling and fracking is not acceptable and fails to address Coloradans’ understandable concerns about the sharp ramp up of heavy industrial activity in their communities,” said Pete Maysmith, executive director of Conservation Colorado.
The environmental group is calling for setbacks of 1,000 feet from homes and 1,500 feet from schools. But for other activists, even 1,000 feet wouldn’t be enough.
“People of Colorado need the COGCC to hold industry to a higher standard and to favor protecting citizens over protecting profits,” Jim Ramey, director of Hotchkiss, Colo.-based Citizens for a Healthy Community, told commissioners.
“People are talking about migraine headaches, bleeding ears, respiratory problems, asthma symptoms, fatigue, vomiting, elevated heart rate. These are very serious health impacts and they tend to increase in proximity to the location of the operations,” lamented Mike Chiropolos, representing Western Resource Advocates.
Meanwhile, the industry itself has issues with the proposal, though it disagrees on whether any buffers are needed. Jep Seman, past president of the Rocky Mountain Oil and Gas Association and currently an attorney representing the Colorado Petroleum Association, told the nine-member panel that, “There’s no basis or need for these rules.”
The Colorado Oil and Gas Association, or COGA, has taken a more measured approach, suggesting that the commission should not simply set a distance, but should instead consider all stakeholders in calculating setbacks, including surface owners, mineral owners, adjacent landowners, local governments and oil and gas operators.
“Setbacks, properly considered, are much more than simply the distance, but encompass the notice, engagement and mitigation measures involved in oil and gas development,” said Tisha Schuller, president and chief executive of COGA. “We are supporting an alternate rule which takes this holistic approach, which practically addresses the real-world concerns of communities with significant new requirements.”
For cattlemen and royalty owners, the issue is about rights and financial security: “It helps older people that have minerals to subsidize their income,” explained Debra Anderson, a royalty owner on the Western Slope. “Many of these mineral owners are not rich people. They’re just ordinary people.”
Water quality testing
The other rulemaking proposed by the COGCC involves water quality testing, which is its own thorny issue. The commission is crafting a proposal for mandatory groundwater monitoring of all new oil and gas wells, both before and after a well is drilled.
COGA believes the industry already has its own voluntary program that is the most comprehensive testing program in the nation. The association points out that the system is the only one in the country with post-drilling sampling requirements. It is urging the commission to simply adopt the methodology.
“COGA is focused on recommending our alternate rule proposal, which if adopted, would represent the strongest groundwater sampling rule in the country,” said Schuller. “We don’t have any critiques for other proposals, because we trust that all parties are putting their best ideas forward in good faith. We consider the COGA proposal one that creates a national model without unduly burdensome requirements.”
But environmentalists declare that the voluntary program does not apply the most advanced science.
“We are disappointed that the state proposal… does not create a strong and robust water sampling and monitoring program to help ensure Coloradans their water is safe from cancer-causing fracking chemicals and spills,” said Maysmith. “The… current proposal ignores cost effective, scientifically-based monitoring protocols — supported by industry — for a regime that will test less, lacks scientific rigor and gives a part of the state… essentially a free pass.”
The Greater Wattenberg Area, a heavily drilled stretch of land from Northglenn to Eaton, would have its own rules. Companies would not have to take new groundwater samples before drilling if the water had been tested within five years.
Because the Wattenberg Area has been drilled for many years, the industry believes it would be difficult to determine if new drilling is causing contamination.
Is fracking safe? Hickenlooper thinks so
COGCC Commissioner DeAnn Craig questioned whether there isn’t misinformation being circulated concerning the safety of fracking. Speaking to activists after being presented with shocking reports of health impacts, Craig wondered whether any of the information could be validated.
“Can you see why the public might be frightened when there’s this kind of information and it’s not what we’re seeing in more intensive testing?” she asked activists.
Craig isn’t the only one who believes safety concerns are being blown out of proportion. Gov. John Hickenlooper, a Democrat and former geologist, has been emphatically campaigning in support of fracking.
On Tuesday, the governor told dozens of climate change activists gathered at the Colorado Climate Network conference in Aurora, “I’m willing to push the political reality as hard as I can, but I think it’s morally reckless to not embrace something like natural gas as a short-term transitional fuel.”
He also endorsed fracking itself, suggesting that despite the United States never ratifying the Kyoto Protocol international treaty to mandate reduction of greenhouse emissions, “We are more than halfway toward compliance because we have these innovations in horizontal drilling and hydraulic fracturing.”
For Hickenlooper, it was a bit like walking into the lion’s den; especially considering the governor — who was once touted for his commitment to alternative energy when he was mayor of Denver — has been criticized heavily as of late for his support of fossil fuels and fracking.
His remarks on Tuesday sparked a nearly half-hour exchange between himself and environmentalists. Jeff Neuman-Lee, representing Fossil Fuel Free Denver, retorted, “What the world needs, and what Colorado needs, is ways of moving beyond fossil fuels.”
Hickenlooper replied, “Sure. No argument. But what are you going to do in the meantime?”
The governor has been criticized for shutting out environmentalists and community activists in the wake of the great fracking debate. In September, anti-fracking protesters in Longmont mobbed him after he spoke at a forum hosted by the Longmont Chamber of Commerce. Activists felt the governor was shutting them out of the discussion.
That anger has spilled over. Just last week, a Boulder County Commissioners meeting discussing proposed regulations was interrupted by throngs of protesters who have been accused of intimidating a spokeswoman for Denver-based Encana Oil and Gas. Reports indicate that the woman was followed to her car, and that activists pounded on her windows. Boulder County Commissioners have admonished the behavior.
But overall lately, the governor has been making himself more available to those who are concerned, opening his doors to meetings with both industry stakeholders and environmental leaders.
“I think we have heard more lately, a little bit more, in his kind of public messaging about acknowledging how important it is that this is done in a way to protect the public health and the environment,” said Maysmith. “But I think the proof will be in the pudding.”
Observers were pleased to see Hickenlooper drop by the COGCC meeting on Monday. He did not make any remarks and only stayed for a short period of time. His spokesman, Eric Brown, said the governor is “paying close attention to the process, as the rulemaking is very important.”
Local versus state control
Still, Hickenlooper continues to receive sneers for his stance. The Center for Western Priorities, a think tank for Western issues led by Trevor Kincaid, former communications director for Democratic U.S. Sen. Michael Bennet’s 2010 campaign, recently called the governor out. The group is concerned that Hickenlooper told oil and gas executives that his administration would “help and support” companies that file lawsuits against local governments for banning fracking.
“It’s strange that anyone in state government would side directly with oil and gas companies over Colorado communities and residents,” said Kincaid. “Rather than trying to play the role of mediator and determine how to give communities a voice in their quality of life as drilling comes closer to many homes and towns, the administration is threatening lawsuits and using a heavy hand to take away local control.”
Hickenlooper’s comments come as Longmont is grappling with a recent ban on fracking after voters there overwhelmingly approved it. Hickenlooper said the state would not sue the city over its ordinance, but that it would support private lawsuits.
Hickenlooper’s administration has filed a lawsuit against Longmont for the city council enacting rules and regulations that are separate of the state. The new regulations include a ban on drilling operations in residential areas. State attorneys believe the city has overstepped its legal bounds.
Similar local rules and regulations are in the process of being enacted all over the state. But uncertainty remains as to whether the rulemaking is legal. The courts will likely settle the issue, not the legislature.
Legislature getting involved
In the meantime, the legislature will be stepping into the fray on safety concerns. Sen. Morgan Carroll, D-Aurora, whose district includes Arapahoe County where drilling activities have expanded, says she will introduce a measure requiring a 2,000-foot buffer between wells and communities. Her measure, however, comes with a caveat. The distance could be shortened to 1,000 feet if a memorandum of understanding is signed with local governments.
Carroll’s measure is likely to pit the legislature against state regulators and the governor’s office. But she says the COGCC’s proposal is “not going to cut it.” She’s prepared for a fight.
“It would be really lovely if they could get this figured out by the rulemaking process, but not all areas of public policy are we so likely to just defer to an administrative branch to encapsulate these tough policy issues for us,” Carroll told The Colorado Statesman.
“Do you do it by rule or by statute?” she asked. “Well, do you have a district being affected? This is not a party issue. I’ve talked to ranchers and farmers, and people who live in suburban areas… It doesn’t matter if you’re a Democrat or a Republican, we are going to see people with constituents of all political stripes being affected.”