Amid continued wrangling over fracking, the Colorado Secretary of State's Office has cleared four initiatives related to oil and gas for signature-gathering. All are likely to cause controversy.
Fracking has been a hot-button issue across the state. Though wells in other areas, notably Weld County, have proven lucrative for the industry, the past three companies to drill exploratory wells in El Paso County have had disappointing results. A fourth company, Agave Oil and Gas, is reportedly planning to drill two exploratory wells here.
Some Colorado cities that have seen more drilling have sought to ban or limit the practice, but the state has fought back, saying only it has the right to set certain restrictions. The new initiatives are directly related to that struggle, as is a last-minute push by Gov. John Hickenlooper to broker a deal that could prevent some of the initiatives from seeing the ballot.
Of the four initiatives currently in the signature-gathering phase, the first three are largely pro-industry:
• Initiative 121 says that local governments that ban or prohibit oil and gas development will not be able to receive state tax revenues from development elsewhere.
• Initiative 122 states that local laws cannot conflict with, or be more restrictive than, the rules of the Colorado Oil and Gas Conservation Commission and state laws and guidelines.
• Initiative 123 says much the same but stipulates that local governments can assess an oil and gas impact fee to "mitigate the direct costs associated with oil and gas development and operations within their jurisdictional boundaries."
Initiative 75, however, appears to pose a threat not only to the oil and gas industry, but to state and federal rule in general. Titled "Right to Local Self Government," it never refers to oil and gas, instead stating that local governments should have the right to "enact local laws protecting health, safety, and welfare by establishing the fundamental rights of individuals, their communities, and nature." It gives local governments the power to "enact local laws establishing, defining, altering or eliminating the rights, powers, and duties of corporations and other business entities." According to the initiative, local laws "shall not be subject to preemption by international, federal or state laws."
The single-named Lotus, of Colorado Springs Citizens for Community Rights, which is behind the initiative, says the group is gathering signatures statewide, using volunteers. (See Get Involved, p. 7.) It might also hire paid workers if fundraising allows.
Meanwhile, Eric Brown, spokesperson for Gov. Hickenlooper, says the governor has a draft bill addressing fracking that he's asking legislators and industry leaders to consider. Should a consensus look likely, the governor could call a special session of the state legislature in hopes of seeing it approved.
Congressman Jared Polis, who represents Boulder, has said he will fund campaigns for initiatives aimed at granting local control over fracking if a bill with a reasonable compromise isn't passed. Polis is not funding Initiative 75, and Lotus says there are no plans to pull it should a legislative compromise be reached.
There could be problems if it passes. Tom Russell, a University of Denver law professor, says it clearly violates the U.S. Constitution's Supremacy Clause and the rights of corporations under the 14th Amendment, among other issues.
"It's unconstitutional on its face, and it also expresses a version of rights that is inconsistent with the history of the United States since 1776," he says, adding, "You can't just declare that a local unit of government can determine what everybody's rights are."