FOR IMMEDIATE RELEASE: MAY 3, 2016
Yesterday the Colorado Supreme Court ruled against the rights of the people in Longmont and Ft Collins. In so doing they ruled against the rights of all Colorado citizens to legislate on matters dealing with oil and gas development.
Under our state constitution, the right of citizens to legislate, Article V, has been termed a first right, superior even to that of the legislature’s. The Court ignored this right in its decision.
The citizens in those cities, by means of direct popular vote, had attempted to postpone or ban oil and gas drilling within their city limits because of overriding public health and safety concerns. These concerns are universally recognized as legitimate except in some political circles
The court also ruled that citizens have no inalienable rights as guaranteed in our Bill of Rights because the legislature had preempted those rights in the Oil and Gas Conservation Act. By this legislation, those rights belong to a small state agency, the COGCC, that works primarily to encourage oil and gas development.
Phil Doe, Environmental Director for Be the Change said: “If your ears don’t prick up at this decision, then you need a good ear doctor. Cut away the lofty language used to disguise greed and plunder, and what the court said is that we have no inalienable rights when it comes to oil and gas development. The legislature took those rights and gave them to their true friends on 16th Street. This will not stand. The power structure can only steal from us if we let them.”
Barbara Mill-Bria, Be the Change’s president said: “This may be a long hot summer. You can’t vote against the interests of the people over and over again without blowback. The people are not happy waking up to find an oil rig in their back yard and being told they have no real say in the matter. This is the opposite of democracy.”
Wes Wilson, Science Advisor, Be the Change, said: “You know, at some point people will start to understand that we’ve been sold a bill of goods. Less than two percent of the state is in incorporated cities and towns. Is there nowhere that Little Timmy and Maria are to be allowed to play without the threat of a gas well spewing poison on them. Hell, apparently every acre in the state is up for grabs. And the Supreme Court is in on the job.”
Dan Leftwich, attorney for Be the Change said: “Article V of the Colorado Constitution was amended in 1910 because the people were concerned about the corrupting influence of special interests in state government. That is the situation Colorado citizens are encountering today as special interests use the state’s power to preempt local communities from protecting their health, safety and the environment. In Article V, the people reserved the power to pass legislation of every character, independent of the general assembly, precisely to put such decisions beyond the reach of the state. These fundamental rights cannot be preempted because they are superior to the powers of the legislature, the executive branch, and the municipal governments in which these initiatives were enacted. These rights were not presented to the Supreme Court because the voters were not represented there, only the municipal governments that were opposed to these initiatives from the beginning. As a result, the Court’s opinions issued today are not controlling precedent where the people’s right of initiative is raised as a defense. Today marks a new chapter, not the end of these disputes.”
Contacts: Dan Leftwich, 720-212-0831(office), 720-470-7831 firstname.lastname@example.org
Phil Doe, 303 949 6986, email@example.com
Today, Be The Change Environmental Director Phil Doe testified in favor of Colorado HB 1310, which holds operators liable for oil and gas operations in the state. Below is Phil’s testimony:
We strongly support HB 16-1310.
Fracking is a dangerous industrial activity. A recently published scientific study, only five days old, gives added muscular support to this widely held and demonstrable assertion.
Reviewing nearly all the peer reviewed research papers on fracking published between 2009 and 2015, the authors of this new study found that:
1. 685 papers on the various health and safety aspects of fracking had been published in peer-reviewed scientific journals.
2. 84% of public health studies contain findings that indicate public health hazards, elevated risks, or adverse health outcomes;
3. 69% of water quality studies contain findings that indicate potential, positive association, or actual incidence of water contamination;
4. and 87% of air quality studies contain findings that indicate elevated air pollutant emissions and/or atmospheric concentrations.
This study did not treat seismicity directly, but it still gives added compelling evidence, if any were needed, of the danger associated with fracking, one of which this bill addresses. Moreover, HB 1310 moves in the direction of sanity and supports our state constitution’s admonition in the Bill of Rights concerning political power and to whom it rightfully belongs:
“All political power is vested in and derived from the people,… originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”
The Oil and Gas Conservation Act is an abuse of this constitutional guiding principle, and this is really what I came here to say, for it steals away the people’s right to self determination and bestows it ignominiously on the oil and gas industry. If this were not true, if this had not been done, you would not have the growing rebellion by citizens in cities and towns threatened by fracking, and you would not have this bill before you today.
In summation, I implore you all to review a decision made by your legislative predecessors. They gave the COGCC the right of preemption. In so doing they took away the rights of the people to self-determination on all matter oil and gas. They acted unlawfully, unconstitutionally, in my opinion, for they effectively revoked the constitutional guaranteed right of the people to legislate directly through the initiative process, Article V–The right to determine by popular vote what is best for their city, neighborhoods, and, yes, even state.
Such an abridgement of rights cannot stand, for as Tom Paine correctly observed in the Rights of Man, “The strength of government and the happiness of the governed” is sustained only when the common people have freedom to “mutually and naturally support each other.”
Also, I would like to invite your attention to a very recent legal review of the whole initiative process and how the state has acted illegally to thwart the peoples right to direct democracy. The author is attorney Dan Leftwich. His brilliant paper can be found at : http://minddrivelegal.com/blog/
Be the Change
A few days ago, the Denver Post published an editorial – Colorado oil and gas bill deserves defeat – that urged legislators to defeat HB1355, which decrees that “local governments can determine where new industrial activities occur within their jurisdiction through zoning ordinances and resolutions.” In response, Be The Change’s Environmental Advisor – Wes Wilson – wrote the following letter:
The Post’s editorial board deliberately and doggedly continues to ignore health damages from fracking. Dr. Lisa McKenzie and her colleagues at the Anschutz Medical School demonstrated that living next to oil and gas wells in Colorado increases the chances of birth defects.1
Dr. Theo Colborn’s careful year-long study of toxic emissions from drilling found cancer-causing benzene, methyl chloride, and a host of other toxic gases that harm health.2 These toxic emissions were ubiquitous even among properly operating wells.
Governments must act to protect public health and safety, for these are its highest functions. Clearly, in satisfying these overarching concerns, government can and must restrain mineral rights development when health and safety are threatened. County commissions and city councils have the authority to restrict gravel mining to comply with their zoning rules to preserve property values and protect publlc safety. The regulation of the oil and gas industry must be subject to the same standards. Moreover, a takings claim under the 5th amendment would be difficult to demonstrate given the industry’s track record of being able to drill horizontally from to 2 to 3 miles out. Moreover, a claim of takings would be impossible to make given the present depressed price for oil and gas. These prices make fracking uneconomic and have much of this heavily leveraged industry sliding into default and bankruptcy. There is little likelihood this trend will change in the near or mid term.
Oil and gas production contribute to climate change; their toxic emissions damage the health of those living nearby; and most of the organic compounds that make Colorado’s Front Range unable to comply with federal ozone standards come from oil and gas operations. The editorial board at the Post must stop bobbing like an Ostrich, tell the people of the dangers associated with fracking, or lose its right to be a voice of the people. It has no right to lie, repeatedly, as a public voice. As a voice of corporate interests, it of course does.
1 Lisa McKenzie, et. al. Birth Outcomes and Maternal Residential Proximity to Natural Gas Development in Rural Colorado, http://ehp.niehs.nih.gov/1306722/
2 Colborn, et. al., An Exploratory Study of Air Quality near Natural Gas Operations, http://endocrinedisruption.org/assets/media/documents/HERA12-137NGAirQualityManuscriptforwebwithfigures.pdf
Wes Wilson, Environmental Advisor
Be The Change USA
A few weeks ago, Be The Change’s Environmental Director, Phil Doe, testified in support of Representative Joe Salazar’s bill – HB-1310 – which shifts the balance of rights in split estates from mineral owners to the surface owners. The bill holds oil and gas operators strictly liable for damage to the health of the surface owner, to the land, and to earthquake damage caused by deep well injection. The bill has passed the Colorado House and now moves to the Republican-controlled Senate.
We very much support HB 1310. It is deeply needed. It moves in the direction of sanity and supports our state constitution’s admonition in the Bill of Rights concerning political power and to whom it rightfully belongs:
“All political power is vested in and derived from the people,… originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.”
The Oil and Gas Conservation Act is an abuse of this constitutional guiding principle, for it gives away the people’s right to self determination and bestows it ignominiously on the oil and gas industry. If this were not true, if this had not been done, you would not have the growing rebellion by citizens in cities and towns threatened by fracking, and you would not have this bill before you today.
I spoke at the Greeley city council meeting the other night. I was there to support the people’s right to determine what was best for the “good of the whole.” The city council, by a 5-2 vote, voted for what was best for the property rights of a small fracking company headed by recent School of Mines graduates loaded down with speculative money from Wall Street.
The majority of the council, led by Mayor Tom Norton, asserted, tangentially, that the property rights of the few were superior to the rights of the many. Individual speculative profits trumped citizen issues of public health and safety, or the good of the whole, if you will.
The growing contempt for government we find in this country derives from decisions like that seen in Greeley the other night. The out of town speculator, pockets loaded down with out of town money got over two hours to make his case before the council. The citizens, armed only with their concerns, were given 3 minutes apiece.
Finally, I implore you all to review a decision made by your legislative predecessors. They gave the COGCC the right of preemption. In so doing they took away the rights of the people to self-determination on all matter oil and gas. They acted unlawfully, unconstitutionally, in my opinion, for they effectively revoked the constitutional guaranteed right of Home Rule, Article V, the rights of citizens to determine what is best for their city and neighborhoods when the issue is of dominant local concern. There is nothing more local than the threat of an oil well in your backyard, accompanied by the realization that the state has taken away your rights to petition the government. Really, as it now stands, your only option is to move. But who’d buy the property?
Phil Doe – Environmental Director, Bet The Change USA
Jim Fitzgerald, a Bayfield rancher, activist, and member of Governor Hickenlooper’s Oil and Gas Task Force, sent the following letter to the Colorado Oil and Gas Conservation Commission (COGCC) in response to their current rule-making regarding the Task Force recommendations.
The Task Force was formed last year as part of a back-room compromise between the governor and Jared Polis, who in turn withdrew two ballot measures that would have increased drilling setbacks and given local governments a veneer of control over O&G operations within their jurisdictions. In February, the 21 member Task Force sent the Governor nine recommendations regarding O&G operations in Colorado, which many regarded as ineffectual.
Here is the text of Jim’s letter to the COGCC:
Consider this as comment on your current rulemaking about Task Force recommendations from a very disgruntled member of that Task Force. The issues you are currently considering are only a small portion of what you should be considering for adoption. The COGCC must consider all thirteen of the oil and gas task force proposals which received 11 or more votes from the 21 member task force.
Gwen Lachelt, the former chairwoman of the oil and gas task force told the Durango Herald (Oct 10) that the rules currently proposed by the COGCC “gut” the intent of the task force. Not only do they gut our intent, they simply disappeared 13 proposals which received positive votes from a majority of the task force. In order to understand how so many intelligent people could waste so much time in the production of something so useless, it’s important to describe the outrageous rigging of the process by the governor’s office.
The 21 members of the task force (including myself) were recruited and assembled under Executive Order B 2014 005. Section II E of that Order stated that: “Recommendations of the Task Force regarding new or amended legislation shall be made by a two-thirds vote of the membership.” It was understood by many , if not most of the members that any proposal that did not require new or amended legislation and which received a simple majority of support would be forwarded for consideration for a rulemaking by the COGCC. After several weeks of meetings, Mike King from the Department of Natural Resources informed our group that all proposals would need a two-thirds vote in order to be considered for adoption. There was no vote on this change. It was simply announced. Therefore when the Keystone Center issued the final report they made the bizarre decision to place 13 proposals which received 11 or more votes in the section of “Minority Report”. The result was that several important proposals to give local governments more standing have not been considered even when they had as many as 13 positive votes. Thirteen out of 21 is not a minority. (See recommendations #7, #12, 12a, and #2 for example.)There were several other important proposals with majpority votes which were excluded.
The governor has chosen to make a mockery of the entire Task Force purpose and process. There were many who chose to participate in that Task Force who did so with much skepticism about accomplishing a whole lot. But I believe that even the most cynical of us never thought that there would be such shameless manipulation to ensure an outcome that had been pre-decided. An outcome that did not reflect in any way the hard work and sincere effort that the majority of Task Force members put into this.
In testimony at an EPA public hearing this week, Wes Wilson of Be The Change USA urged regulators to tighten control over methane emissions from oil and gas wells. Below is Wes’s complete testimony at the hearing.
“I worked here — at EPA’s Regional Office in Denver — as an environmental engineer for over 35 years. I represent BE THE CHANGE, a Colorado non-profit organization dedicated to better government.
I’m here today as a concerned citizen to testify that these rules are inadequate as a remedy and not in time to be effective.
By Phil Doe
It is a truth universal that when a politician establishes a task force to examine an explosive public issue, often an issue of his own making, said politician will term the task force’s recommendations remarkable in both their wisdom and farsightedness.
This truth was borne out on February 24th when Colorado Governor Hickenlooper’s Blue Ribbon Task Force on Fracking issued its carefully vetted and resultantly sparse recommendations. He personally selected the 21 members, so of course it was fitting he label them Blue Ribbon and congratulate them on a job well done. The majority were oil executive cronies or political yesteryears friendly to him or the industry. Continue reading
The 21 member Colorado Oil and Gas Task Force appointed by Governor Hickenlooper to “examine … issues surrounding oil and gas operations and provide recommendations” has released its official report, which can be read in it’s entirety here:
The report includes nine recommendations, each approved by at least two-thirds of the task force members. Given that the task force was split between O&G representatives and other stakeholders, it’s not surprising that the recommendations address none of the big issues raised by Fractivists and others advocating for local control over O&G operations in their jurisdictions.
Here are the nine recommendations:
- RECOMMENDATION TO FACILITATE COLLABORATION OF LOCAL GOVERNMENTS, COLORADO OIL AND GAS CONSERVATION COMMISSION AND OPERATORS RELATIVE TO OIL AND GAS LOCATIONS AND URBAN PLANNING
- RECOMMENDATION TO INCLUDE FUTURE OIL AND GAS DRILLING AND PRODUCTION FACILITIES IN EXISTING LOCAL COMPREHENSIVE PLANNING PROCESSES
- RECOMMENDATION TO ENHANCE THE LOCAL GOVERNMENT LIAISON AND LOCAL GOVERNMENT DESIGNEE ROLES AND FUNCTIONS
- RECOMMENDATION TO INCREASE COGCC FULL TIME STAFF, INCLUDING INSPECTORS, FIELD OPERATIONS, ENFORCEMENT, AND PERMITTING STAFF
- RECOMMENDATION RELATED TO CDPHE STAFFING, A HEALTH COMPLAINT LINE, A HUMAN HEALTH RISK ASSESSMENT, AND A MOBILE AIR QUALITY MONITORING UNIT
- RECOMMENDATION TO CREATE AN OIL AND GAS INFORMATION CLEARINGHOUSE
- RECOMMENDATION TO REDUCE TRUCK TRAFFIC ON PUBLIC STREETS, ROADS, AND HIGHWAYS FOR OIL AND GAS ACTIVITIES
- RECOMMENDATION TO GENERAL ASSEMBLY REGARDING AIR QUALITY RULES
- RECOMMENDATION TO IMPLEMENT A COMPLIANCE ASSISTANCE PROGRAM
On Wednesday, January 31, a coalition of grassroots organizations asked for the resignation of
Co-Chair Randy Cleveland from Governor Hickenlooper’s Blue Ribbon Task Force on fracking. This Task Force was established so U.S. Representative Jared Polis could gracefully strike from the 2014 state ballot two initiatives he had financed. One would have required 2000-foot setbacks from homes, the other would have allowed towns and cities to determine for themselves whether they wanted fracking in their back yards.
The reasons for his requested resignation are several:
- Cleveland’s company, XTO, was recently fined $2.3 million for toxic dumping in West Virginia. The estimated cleanup costs are another $3 million. XTO is recognized as one of the worst polluters in Pennsylvania, having been fined more than $227,000 for toxic dumping into major rivers such as the Susquehanna. A state grand jury has brought criminal charges against the company because of its reckless and illegal dumping.Phil Doe, Environmental Director for Be the Change said, “The governor’s appointment of Cleveland to a leadership role on his “blue ribbon” task force is bewildering. Cleveland has been given control of the task force even though his company has been repeatedly charged with significant regulatory violations. If any of us had done what Cleveland’s company has done, we’d probably be in the clinker. He’s not even a resident of this state. Yet, he is invited to jet in here, make decisions about our lives, our property, our safety and then jet back to his home in Texas. Colorado doesn’t need a law-breaking Texas CEO to tell us how to regulate our oil industry.”
- XTO’s activities in Colorado show a similar pattern. State oil and gas records show that XTO has self-reported 101 spills, with almost 800 thousand gallons of operational waste of unknown toxicity leaked into the environment, mostly from faulty disposal ponds and corroded pipes. About 93 percent of the waste was never recovered, some of it reaching rivers and streams. For these infractions, the company has been fined once for $2000. Moreover, the company is wasting approximately 7 percent of all its gas production, either through flaring or leaks. With a market value of roughly $68 million, the waste of this nonrenewable energy has cost Coloradoans reduced severance and royalty payments as well.