Time for special session dwindles

...But fracking fracas keeps on going
The Colorado Statesman

The Colorado Supreme Court on Monday affirmed the remaining proposed ballot titles pushed by U.S. Rep. Jared Polis that attempt to offer local jurisdictions the power to regulate oil and gas activity, including banning hydraulic fracturing and increasing setbacks.

The high court’s ruling came just days after citizens in Loveland rejected a ballot question that would have imposed a two-year moratorium on so-called “fracking.” It remains to be seen whether the failed time-out in Loveland foreshadows similar defeat of statewide questions.

Proponents hope to narrow a series of nine proposals down to two initiatives that would increase setbacks of wells and authorize local control over regulations. Setbacks currently stand at 500 feet, but proponents would like to raise that to at least 1,500 feet. They are also examining asking voters to approve a constitutional environmental declaration, which also encompasses local control.

The Supreme Court affirmed six of the questions on Monday, following a title challenge by various business interests, including Mizraim Coredero, director of the Colorado Competitive Council, and Scott Prestidge, energy industry manager for the Metro Denver Economic Development Corporation.

Initiatives 90 and 93 would establish local control; Initiatives 85, 86 and 87 would mandate increased setbacks between wells and structures. Another proposal, Initiative 89, would set an environmental declaration to the state constitution, affirming the right to clean water.

Coloradans for Local Control last month began collecting signatures for two separate initiatives that would mandate setbacks of 2,000 feet between wells and inhabited structures (Initiative 88), as well as another proposal that would assert a right to clean air, water and scenic values (Initiative 89).

A final proposal that has already been approved would also deal with the local control issue, but proponents have not begun collecting signatures on that topic yet.

Coloradans for Safe and Clean Energy, the issue committee established to fund the initiative drive, announced 15,000 signatures gathered for the active initiatives just after the first week. The campaign has until Aug. 4 to collect 86,105 valid signatures to place the questions on the November ballot.

Polis, a self-made millionaire and Democrat from Boulder, has promised to fund the effort. He became involved after a well was fracked near his country home just outside of Loveland.

Fracking is used in wells by utilizing chemicals, sand and water to create small fractures under the ground in order to stimulate production of new and existing oil and gas wells.

Fears exist that water can become contaminated and air polluted. There are also nuisance concerns, such as noise and congestion.

For proponents, the Supreme Court approval ends “attempts to obstruct and delay the ability of Colorado voters to have their voices heard.”

“The campaign is very pleased with today’s outcome from the Supreme Court,” explained Nick Passanante, campaign director for Coloradans for Safe and Clean Energy, or Safe. Clean. Colorado.

“It’s a shame that the oil and gas industry has wasted so much of the court’s time in an attempt to delay or obstruct the ability of everyday Coloradans from having their voice heard on these measures,” he continued. “We look forward to continuing a robust dialogue with the voters, and are confident that Coloradans will come down on the side of commonsense protections for our kids and families in November.”

But Karen Crummy, spokeswoman for Protecting Colorado’s Environment, Economy and Energy Independence, a committee formed to oppose the ballot questions, pointed out that there was dissent from Chief Justice Nancy Rice, specifically on Initiatives 90 and 93. Justice Gregory Hobbs, Jr. joined in the dissent.

Rice wrote, “While voters who own property near oil and gas deposits might support the proposed initiatives’ attempt to expand local regulatory power over oil and gas development, those same voters might be surprised to learn that voting for the local regulation measure could also curtail their own constitutional rights to just compensation for a taking of their property. Holding that the proposed initiatives violate the single subject requirement would avoid this improper surprise.

“The proposed initiatives could surprise voters who own property near oil and gas deposits, and support the local government’s ability to regulate oil and gas development, by including a surreptitious provision that could curtail the voters’ constitutional rights to just compensation for a taking of their property,” Rice added.

Crummy responded, “It’s unfortunate that Congressman Polis and his campaign manager are dancing on the grave of Coloradans’ private property rights.

“But we have confidence that the voters in this state will see these initiatives as Chief Justice Rice did: as a ‘surreptitious’ method of taking voters property without just compensation,” added Crummy.

Special session talks diminish
Gov. John Hickenlooper, a Democrat and fracking supporter, has been leading talks in an effort to strike a compromise on a bill that would avoid the ballot drives, though the governor is less confident that those discussions will result in a deal.

If he does find broad-based support, then the governor would call a special session to pass the bill.

His administration has proposed two iterations of a bill that aims to stave off the initiatives.

Hickenlooper has earned the support of Anadarko Petroleum and Noble Energy, which have been involved in discussions since the beginning. He also has support pledged from five other companies, including DCP Midstream, Great Western Oil and Gas Co., PDC Energy, K.P. Kauffman Co. and WPX Energy.

The latest draft of the bill would give local governments more control over oil and gas regulation, including rules around noise and setbacks. But it limits local government’s ability to prohibit operations through moratoriums and bans by restricting the duration of the time-out to “an amount of time that is reasonably necessary to facilitate informed decision-making and planning.”

In addition to allowing governments to mandate setbacks and conduct inspections, the newest bill would also require that jurisdictions “not alter or diminish” subdivision plats, development plans or entitlement rights that surface owners currently have. That was made in an effort to garner more widespread support from such groups as homebuilders.

If the bill were passed by the legislature, then Polis and his group would have to promise not to attempt the ballot questions through 2018.

The five additional energy companies to join Anadarko and Noble in their support of the draft bill said in a joint letter to the governor, “The legislative solution that you have put forward will ensure communities continue to have a voice in the regulation of oil and natural gas development, while protecting property rights, and supporting responsible energy development.

“Your proposal will also help avoid ballot measures that, if adopted, would become constitutional provisions that leave no room for negotiation or compromise, regardless of the circumstances,” the letter continued. “We believe the legislature is the right place to work through these issues.”

Colorado Concern, a group of business executives, has also officially supported the latest bill, saying in a letter, “No compromise is perfect, but this agreement marks the right step forward for our state, local communities and Colorado’s economy. We stand ready to work with you and the legislature to see that this bill reaches your desk in the near future.”

Pat Hamill, chairman of Colorado Concern and chief executive of Oakwood Homes, and Tamra Ward, president and chief executive of Colorado Concern, signed the letter.

But Hickenlooper still faces several roadblocks. The Colorado Oil and Gas Association, which represents smaller producers, opposed the first draft bill. The organization is currently reviewing the second draft and companies will be providing feedback directly to the governor.

The Colorado Petroleum Association, which represents larger national companies, is also passionately opposed to both drafts.

Hickenlooper also does not appear to have the votes in the legislature. Republicans immediately resisted the idea, suggesting that the special session would only serve to appease Polis, who they believe is essentially holding the legislature hostage.

Democrats are also hesitant to compromise under the threat of ballot initiatives, including Sen. Lois Tochtrop, D-Thornton, who told The Colorado Statesman that she does not plan on voting for the bill if a special session were called. With Democrats holding only a one-seat majority in the Senate, Hickenlooper would need a commitment from the caucus to pass the bill.

The governor acknowledged the obstacles last week, telling reporters that he has adjusted his optimism from 50 percent to just under that number.

“We’re still working on it as hard as we can,” he said. “I think we have a product that is pretty good, but there seems to be a political barrier there that we can’t get past.

“If you look at the potential consequences of having a $50-75 million ballot initiative between both sides… that’s not necessarily a good thing,” Hickenlooper continued. “Especially with something like this, it really creates a divisive, bitter battle…

“Things like this are much better solved with legislative solutions because then you can come back and amend them rather easily the next year, whereas you put something in the state constitution, most stuff that goes into the state constitution we never take out,” he added.

Hickenlooper also acknowledged that time may be running out on a special session because both sides have begun spending resources to either support or oppose the respective initiatives.

“I will say that ticking clock is loud in my head, that we are rapidly running out of time,” explained Hickenlooper.

Spending already happening
The clock has appeared to turn faster in recent days as both sides have begun spending money and running ads.

Safe. Clean. Colorado. (Coloradans for Local Control) has reserved $1.3 million for television this fall. It also made its first digital ad buy in the amount of $100,000, which could reach as many as 30 million. Those digital ads are already running, including messages that read, “End fracking near Colorado Schools,” “End fracking near Colorado homes” and “Colorado: 495 fracking spills in 2013.”

The issue committee has reported close to $1.5 million in contributions, mostly from Coloradans for Local Control, supported by Polis.

Meanwhile, Protect Colorado has launched two TV ads demonstrating bipartisan support for the oil and gas industry. They have reported more than $6 million in contributions.

The first ad features former Govs. Bill Owens, a Republican, and Roy Romer, a Democrat.

“Democrat and Republican governors agree on fracking in the production of natural gas,” the ad states as Romer and Owens take a stroll together through Civic Center.

“We need natural gas, fracking helps us get it,” explains Romer.

“It’s tried-and-true, fracking has a 60-year track record here, we’ve got some of the toughest regulations and enforcement you’ll find anywhere,” adds Owens.

A second ad features three high-profile local businesswomen, including Ward, Kelly Brough, president and chief executive of the Denver Metro Chamber of Commerce, and Diedra Garcia, president and chief executive of the Hispanic Chamber of Commerce of Metro Denver.

“We shouldn’t have to choose between our economy and the environment, Coloradans have a long history of coming together to find solutions,” Ward says in the ad.

“That’s just what we’re doing, working together producing clean natural gas protecting our environment and securing our economic future,” adds Brough.

“The truth is we all benefit from fracking, it creates thousands of jobs, takes us closer to energy independence and puts hundreds of millions of dollars into our communities,” concludes Garcia.

Also on the business side of things, Coloradans for Responsible Reform has joined the opposition, reserving nearly $8 million worth of ad time in preparation for the campaign. CFRR has reported contributions of more than $3 million.

National groups are also getting involved, including Log Cabin Republicans, which is continuing its attacks on Polis. The group represents the interests of gay Republicans, though it claims that is not targeting Polis because he is a gay Democrat.

The latest ad features a picture of a large whining child and states, “This is what Jared Polis is whining about?” The ad shows a photo of a small well sitting adjacent to Polis’ vacation home.

The Environmental Policy Alliance is also attacking “radical environmental activists,” launching Colorado Green Radicals, which explores the “out-of-state activists” who use “misleading local control schemes” to push anti-fracking ballot measures.

Loveland rejects moratorium; fractivists remain committed
Beyond the spending and ads, another significant factor that is impeding the legislative negotiations is a separate ballot drive already underway by a more grassroots base of so-called “fractivists.”

Colorado Community Rights Network has established an issue committee to support their own local control ballot drive, and the group says it will not back down in the face of pressure over a special session. They have reported contributions of $5,000.

Currently standing as Initiative 75, the proposed ballot question would stretch even further than those proposed by Coloradans for Local Control by offering local governments more control over businesses and corporations that impact the health and safety of a community.

The effort grew out of initiatives in five municipalities that have already banned fracking, beginning with Longmont in 2012, and then spilling over into other communities along the Front Range. Broomfield, Fort Collins and Boulder passed five-year moratoriums last year, and Lafayette passed a ban on new oil and gas activities.

Loveland voters on June 24, however, rejected a two-year moratorium on fracking. That question failed by 902 votes, 10,844 to 9,942.

Protecting Colorado’s Environment, Economy and Energy Independence, or Protect Colorado, hailed the failed initiative as a sign that voters overall are not willing to prohibit oil and gas development.

“This election should serve as a warning to those pushing similar ballot proposals statewide: Coloradans will not be manipulated by uncompromising activists peddling fear instead of facts,” said Crummy.

Tisha Schuller, president and chief executive of the Colorado Oil and Gas Association, also praised Loveland voters for killing the ballot drive.

“I am delighted the people of Loveland have rejected the fear and misinformation shown throughout this campaign and have instead said ‘yes’ to responsible energy development in their community,” said Schuller. “This is a good example of what happens when voters have access to the facts about hydraulic fracturing and energy development. This ballot measure was about banning energy development, and the people of Loveland embraced cooperation by rejecting this ban.”

But the folks behind the initiative, Protect Our Loveland, said it was impressive that they came anywhere close to a win considering they were outspent by the oil and gas industry nearly 40:1, according to campaign finance disclosures presented by the group.

They also pointed out that the special election was set by the city council for primary night, rather than during a general election when there would have been larger voter turnout.

“In spite of this wildly excessive ‘at any cost’ spending to win this election, Protect Our Loveland’s local volunteers did our best to alert our community of the cost they will pay for allowing fracking next to our homes, schools and playgrounds,” explained Sharon Carlisle, lead proponent of Protect Our Loveland.

“As evidenced by the very close vote, our community has now had their eyes opened,” Carlisle continued. “Forty-eight percent of those who voted saw through the polished TV ads and glossy mailers that we couldn’t hope to afford… We in Loveland will continue to work with like-minded people to see that oil and gas development is responsive to our health concerns and respects our civic rights.”

Safe. Clean. Colorado. said the Loveland vote is not representative of a statewide effort.

“Despite the oil and gas industry outspending local community members by at least $1 million on an election date cherry-picked by the industry, this grassroots effort in Loveland was very nearly passed against overwhelming odds,” opined Passanante. “The industry should certainly be running scared as we head towards the ballot in November to pass clear and decisive measures in support of sensible setback limits and responsible protections for Colorado families.”

Peter@coloradostatesman.com