How a Single Sentence in a Colorado Bill Could Pump the Brakes on the Fracking Boom

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Boulder County Commissioner Elise Jones is no stranger to conflict with the Colorado Oil and Gas Commission, the state board that regulates the fossil fuel industry. As an environmentalist, and representative of a county that has actively tried to keep out fracking, she said she’s been “grumpy, even angry” when meeting the panel.

At a COGCC meeting last month, however, she told the commissioners that, for the first time, she was “optimistic.” The reason? A sweeping oil and gas reform bill that was then working its way through the legislature, and is now waiting for Democratic Gov. Jared Polis’ signature. He is expected to sign it any day now.

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The bill would limit hazardous air emissions, require companies to better seal up their wells after drilling, and give local authorities more control over how the industry acts in their towns. But perhaps its most impactful change is a seemingly benign, wonky language alteration to the COGCC mission statement. Rather than being told to “foster” development of natural resources, the body would instead have to “regulate” such development. The original mission said production had to be “consistent with the protection of public health, safety and welfare;” now regulation must “protect” health and safety.

Advocates like Jones think that one new sentence could upend how Colorado deals with its fracking boom, by putting people over production for the first time. And doing so might provide a model for other states.

In an email to Earther, Jones noted that COGCC has a history of rubber-stamping drilling permits and “believ[ed] it was their role to facilitate oil and gas drilling.”

“Now they are directed to prioritize health and safety, which will empower them to better scrutinize the proposals that come before them—including considering things like cumulative impacts and requiring alternative site analyses—and hold the industry accountable for meeting higher standards in order to safeguard Coloradans’ health and safety,” she added.

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The COGCC’s responsibility has been at the center of Colorado’s fracking wars, pitting communities along the state’s Front Range against a major revenue driver. The advent of hydraulic fracturing in the early 2000s helped the industry reach previously-untapped pockets of oil and gas, and companies installed rigs within shouting distance of homes, schools and playgrounds. Colorado now hosts more than 56,000 active oil and gas wells and is in the top 10 states for both natural gas and oil production.

But as the industry boomed, so did concerns about the impact on air quality, water and the citizens who were living nearby. Amid citizen resistance, cities like Longmont and Boulder passed fracking bans. However, those were struck down by the state Supreme Court in 2016 for conflicting with state law. A lawsuit brought by six youth activists, led by Xiuhtezcatl Martinez in 2013, also asked for a pause on all new fracking until it could be proven safe. After a lengthy court fight, the state Supreme Court again rebuffed the activists, saying that the COGCC’s mission as written did not require them to condition new permits on health and safety.

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Now the new bill—the result of November elections that swept Democrats to statehouse majorities—makes that fundamental change that environmentalists have been looking for.

“It reflects the changing times and priorities,” Bruce Baizel, director of the energy program for Earthworks, told Earther. “If you look at most states, oil and gas production is the priority. Only recently has health been a consideration, and climate not at all.”

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States like Texas, New Mexico and Oklahoma primarily task their oil and gas boards with extraction, not regulation (North Dakota’s Oil and Gas Division, for example, says its mission is “ to encourage and promote the development, production, and utilization of oil and gas,” with no mention of health). Some blue states, like California do make health and safety a priority.

Another model comes from Pennsylvania, which in 1971 passed an Environmental Rights Amendment stating that “people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” That’s been used by environmentalists to challenge oil and gas leases.

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What the bill’s new language means for Colorado remains to be seen. The state will have to pass new rules to enact the legislation and evaluate its existing regulations against its new responsibilities. As new permits roll in, experts expect a flurry of lawsuits that will refine what the state is looking for. In a statement to Earther, Colorado Oil and Gas Association president Dan Haley said “impacts of this legislation are being felt immediately from a permitting standpoint, and a variety of other impacts are too far off on the horizon to know what they will be.

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“What we do know is that Colorado’s oil and natural gas industry values public health, safety and the environment and our record supports that,” Haley added.

Other states will be watching what happens next. With its moderate politics, Colorado has been seen as a bellwether for other oil and gas states, and many are exploring their own fracking reforms. New Mexico governor Michelle Lujan Grisham (D) has talked up climate-focused rules, and Democratic legislators there floated a four-year fracking moratorium (it failed, but some smaller rule changes for the industry did pass).

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Even Wyoming legislators have discussed reforms, with state Sen. Jim Anderson telling the Casper Star-Tribune that it is “urgent” to update rules to accommodate new technology.

Whether those states follow Colorado’s lead and put health and safety first remains to be seen, and likely depends on what impacts Colorado sees. Smaller aspects of the bill, like round-the-clock pollution monitoring, are likely to be picked up elsewhere. Language that allows local governments to pass more stringent rules could also become a model, as communities in states like Texas deal with their own fracking wars.

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Kevin Lynch, who leads the Environmental Law Clinic at the University of Denver’s Sturm College of Law and has helped lawsuits against the industry, told Earther that such a sweeping bill will result in “common-sense regulations that other states will want.” But ultimately, he said, it’s the simple mission change that will redefine how the state responds to citizens opposing the industry.

“This is going to change the state’s rulemaking, and how the courts look at these issues and permitting,” Lynch said. “It’s going to become a lot harder for the state to say ‘no.’”

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Jason Plautz is a freelance environment and energy reporter based in Denver, Colorado. 

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