Capitol Letters: Preemption and Points of View

This content was originally published by the Longmont Observer and is licensed under a Creative Commons license.

We're following SB19-181, newly titled CONCERNING ADDITIONAL PUBLIC WELFARE PROTECTIONS REGARDING THE CONDUCT OF OIL AND GAS OPERATIONS.

SB19-181 has passed the Colorado State Senate now and is receiving its first House committee hearing on Monday, March 18. If you're reading this after that, well, it's been hard to keep up with the long-awaited Oil and Gas Bill's swift trip through the state legislature. Expect at least one more Capitol Letter on this subject, when "181" reaches its final conclusion. It will be interesting to see if the House comes up with new takes on this important measure, or whether the House debate is more of the same. For now, we can reflect on the nature of the Senate debate.

On the Front Range, the people's consensus is fearful of the power of the COGCC and its unabashed advocacy for the Oil and Gas Extraction industry. Homeowners are fearful of the westward march of drilling activity and the poor air quality on the Front Range. Mostly they support SB19-181. But people whose livelihood (or wealth) depends on this industry have a different point of view.

SB19-181 addresses three main issues: reform of the COGCC, Local Control over the Oil and Gas Industry, and Public Welfare. There's a lot of overlap among the three, but blessedly, most speakers spoke to one subject at a time. Local control is the easiest to analyze, because we can draw a picture.

Today, for all intents and purposes, regulation of the Oil and Gas Industry is governed by the State of Colorado via the Colorado Oil and Gas Conservation Commission (COGCC). Counties, Municipalities, and other districts have essentially no ability to regulate the siting, safety measures, noise or chemical emissions of wells for the extraction of oil and gas from the ground. That's called preemption. It can be the source of political divides between rural and urban parts of the state, because people who own large tracts of land generally want it to be ignored by regulators, while people in cities want an authority who understands their needs - a local one - to protect them from the actions of neighbors who are right on top of them.

SB19-181 relaxes the preemption of Oil and Gas regulation by allowing rules made by smaller political subdivisions to supersede the state regulations. It moves the extraction industry from the right-hand side of Figure 1 above to the left. There's been a lot of discussion about what this means at the Capitol, and the urban-rural divide was very obvious in the testimony heard in the Senate regarding Local Control.

Several opponents of SB19-181 calling in from remote, rural counties expressed indignation that a local government agency might control what they could do with their land! They already do, of course, but zoning regulations don't come up very often for farmers and ranchers, unless they decide to subdivide their land. Often, in a time when it's hard to make a good living from agriculture, having an oil well on your property is what makes the difference between living comfortably on your land or selling out. It is very unlikely that 181 will end the practice of drilling on farms, but that's the fear the industry is spreading to make opposition to the bill.

Weld County Commissioner Barbara Kirchmeyer made the argument that Local Control can be interpreted to allow a county to relax state regulations to be more lenient and favorable to industry. That is the opposite of the general understanding, which is that home-rule governments may tighten state protections but not relax them. She asserted that COGCC rule makings in 2009 and 2015 caused job losses in Weld County, and Weld should have been able to reverse those rules to hold onto its jobs.

Bill Sponsor, Senator Mike Foote, who served Longmont for the maximum number of terms in the State House before moving over to the Senate, had a counterargument for that. He pointed out that in 2009 we were in the depths of the Great Recession and demand for petroleum products had plummeted. In 2015 Saudi Arabia dramatically increased production, undercutting the price of raw shale oil by flooding the market with light sweet crude. Correlation is not causation, Foote said. The COGCC rulings didn't cause layoffs in Weld County. It was good old supply and demand.

Foote, we will all remember, made his reputation in the House as a gadfly to the Oil and Gas Industry, insistently introducing bills that would protect his constituents from spills, pollution, and accidents associated with drilling and fracking. Most of them, sadly, were killed in the Senate, which was controlled by drilling-friendly Republicans most of his time in the House. But he made himself an expert on the extraction industry, and he continues to use his knowledge to serve his constituents.

City dwellers, on the other hand, typically want land use to be protected by local government. Who wouldn't feel uneasy if four houses on their block were torn down and a leather tannery constructed on the site?! In Longmont this would never happen. A tannery is a heavy industry, and all the land in Longmont is zoned for residential, light industrial, or "mixed" use. There is no place in Longmont where a stinky, ugly, trafficky factory like a tannery can be built. (Who misses the late and unlamented Butterball packaging plant, with its interesting odors?) Longmont banned fracking in its city limits on the same theory that it is needful to protect people from the encroachments of industrial by-products. The ban was struck down by the Colorado Supreme Court, but Longmont continues to fight for our safety.

Those who testified on behalf of Local Control were mostly urban, including many scientists. Their arguments centered around health and safety for the people and the planet. A representative from Physicians for Social Responsibility argued that Local Control means protections for people and natural resources, not arbitrary "regulation." And a University of Denver Law School professor pointed out that leaving petroleum in the ground is not waste at all - but conservation.

So, arguments against strengthening Local Control were based mostly on property rights. Arguments for it were made chiefly on Public Welfare grounds, but also on property rights! In cities, zoning ordinances are peoples' main protection against imprudent actions by other property owners. When people live close together, we need protection from one another, and especially from special interests who wield more money and power than we can ourselves. Rural landowners imagine that the distance between themselves and their neighbors protects them, but in cities, we can't share that illusion.

Many employees of the Oil and Gas industry came to the Capitol the day SB19-181 was introduced. They wore their work uniforms, and they arrived in buses chartered by their employers. Strikingly, some of them brought their small children. "Look at me," they seemed to say. "I and my little boys are dependent on this industry. I need this job. If Anadarko were poisoning my boys, do you think I would do this? Do you think I would be here?"

Last year, when then-Representative Mike Foote was running a setback bill, supporters of that bill also brought their children. Women held up their babies and talked about low birth weight and asthma and leukemia. Those women were on hand for the introduction of SB19-181, too. So were their mothers, the grandmas of those babies, retirees who, with their own livelihood secured, were working to protect the next generation.

How much do you need a job before you refuse to believe that your employer is harming your children? Is clean air and water, a stable climate, a good green planet, more of a luxury than having a job? It would seem so. And yet...

The oil and gas interests laid on a buffet supper for their employees in the basement of the Capitol. And then the workers went home. Mostly, the mothers with babies did, too. But the grandmas supporting SB19-181 brown-bagged it, or improvised phone trees so that someone could run out to the deli without missing her call. They stayed well past midnight. And they had their say.

Afterword: It is worth noting that the final Senate amendment to SB19-181 read, in part: "AS SPECIFIED IN SECTION 34-60-105 (1)(b). A LOCAL GOVERNMENT'S REGULATIONS MAY BE MORE PROTECTIVE OR STRICTER THAN STATE REQUIREMENTS." Just making sure.