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Wednesday, July 3,2013

About face

A behind-the-scenes look at what made Boulder County commissioners change their minds on the oil & gas moratorium

By Jefferson Dodge

What a difference a month makes.

On May 21, the Boulder County commissioners decided not to extend a 16-month-old moratorium on new applications for oil and gas drilling. At that time, only Commissioner Elise Jones supported the idea; commissioners Deb Gardner and Cindy Domenico did not.

But four weeks later, on June 18, the board decided to extend the moratorium for another 18 months, making it official in a resolution approved unanimously two days later.

So what changed? In the face of not-so-veiled threats of lawsuits from the likes of state agencies, industry groups and oil and gas companies (including the Colorado attorney general’s office, the Colorado Oil and Gas Conservation Commission, the Colorado Oil and Gas Association and Noble Energy), what on Earth would make the commissioners make such a radical shift?

Well, some say the power of the people played a role in convincing the commissioners to stand up to such powerful interests. Virtually every oil/gas hearing the commissioners have had in the past year and a half has seen standing-room-only crowds packing the board’s hearing room, bearing anti-fracking signs and even being disruptive enough on at least one occasion to prompt the commissioners to suspend the proceedings and walk out.

In addition, during that four-week period in May and June, opponents of hydraulic fracturing, or fracking, and other oil/gas extraction methods suspected of posing air and water quality health risks, sent the commissioners thousands of emails, including 1,100 in the week leading up to the vote, according to Neshama Abraham of the Sierra Club Indian Peaks Group and Frack Free Colorado.

Jones acknowledges that the vast amount of public feedback opposed to oil and gas operations like fracking played a part in the board’s decision.

“I can’t speak for my fellow commissioners regarding the specific factors impacting their decision-making on this particular issue,” she told BW. “But I do think I probably speak for all of us in saying that one of the top responsibilities of an elected official is representing your constituents and actively listening to their views and concerns. So absolutely, public input is a critical piece of any major policy decision. That’s how democracy works.

“And on the fracking issue,” Jones continues, “we had a significant amount of public comment, both in person at hearings and via emails, and the overwhelming majority of comments supported a moratorium extension. Of course that played a role, as did scientific data and studies, legal analysis and other policy factors.”

Legal defense

On the legal analysis front, Abraham says the commissioners made it clear they needed a legally defensible position, so she enlisted the help of a couple of environmental attorneys, and the three of them held individual meetings with each commissioner, county attorneys and other county staff in an effort to assure them they were on solid legal ground in extending the moratorium.

“We were quite the team,” Abraham says. “I felt like they wanted to extend it, but didn’t know how to do it, so we said, ‘We’ll help you.’”

Those attorneys, Eric Huber, senior managing attorney for the Sierra Club’s Environmental Law Program, and Dan Leftwich of MindDrive Legal Services, say they looked at multiple fronts on which an extended moratorium might be challenged, and found legal precedent protecting the county for each one.

The justification for the first moratorium was the time needed for the county to develop new oil and gas regulations. Now that those regs have been completed, the question was, could the county justify an extension of the moratorium because of the need to wait for the science to catch up with possible health threats posed by possible air and water pollution?

First, Huber and Leftwich say, the argument that this could be seen as a “takings” issue — illegally depriving mineral owners of access to their property — was dealt a blow June 5, when a judge dismissed a takings claim in the Colorado Oil and Gas Association’s lawsuit against the city of Longmont and its fracking ban.

“I think that was very significant,” Huber says. “All I did, on behalf of the Sierra Club, was to reassure them that there should be no valid takings claims against the county, because those were the big-money issues they were concerned about.”

Another area in which they identified precedent was previous cases of government agencies issuing lengthy moratoriums in the name of protecting the citizens from possible health and safety threats.

Then there was the issue of whether there was any “operational conflict” between what the county was doing and state’s rules, in which case the state trumps the local government. Leftwich points out that when the Colorado Oil and Gas Conservation Commission approved new setbacks from oil and gas operations recently, it acknowledged it didn’t have enough data on possible health impacts, so it launched a five-year study on the topic. That acknowledgement is consistent with, not in conflict with, the county’s position that more time is needed to study possible health threats, Leftwich argues.

Finally, county officials needed confidence they had the authority to extend the moratorium, and Leftwich says the Colorado Constitution, which the commissioners swear to uphold, refers to protecting the life, liberty and safety of the people.

“They not only have the authority, they have a constitutional duty,” he asserts.

Huber says that while the attorneys’ input might have played a role in the commissioners’ decision, a far bigger factor was the public outcry.

“I think this shows the power of the citizens to get their voice heard and their decisions made,” he told BW. “I think the most compelling argument that was made was the 500 people packing that chamber. … I think that’s really what happened here. You’re seeing it here, you saw it in Longmont. You’re seeing it in other municipalities too. You’re getting a real conflict between oil, gas and pollution and people’s quality of life. The real conflict here is between people’s quality of life and these big, moneyed corporate interests.”

Planning Commission vote


All involved also agree that the Boulder County Planning Commission’s June 5 vote to recommend the extension of the moratorium — instead of attempting to slow oil and gas drilling through a “phasing” approach — was key in changing minds on the board.

“I think that’s when the tide turned,” Abraham says.

The planning commission voted 4-3 to not endorse the phasing approach, which would have limited companies to submitting one application at a time for new pads or wells. Some commission members expressed concern that, since companies can drill a dozen wells on one pad, and could create multiple subsidiaries to file for applications, the phasing approach would not be effective enough at slowing the rate of drilling. After voting down that plan, they voted unanimously to recommend extension of the moratorium, much to the delight of most of the audience.

Planning commission member Pat Shanks was the one who suggested recommending the extension of the moratorium instead.

“If there was a single person who turned that ship around, it was him,” Abraham says. “He’s my hero.”

“It seemed like this thing wasn’t ready for prime time,” Shanks says of the phasing approach, noting that it could have allowed for new pads being approved every two months. “So we didn’t think it was airtight, or would work very well.”

Shanks adds that another reason for voting down the phasing plan and recommending the extension of the moratorium was it was evident that county staff were not prepared to conduct baseline water and air quality measurements.

The county commissioners agreed.

“I think they picked up on our recommendation of taking enough time to get a good testing procedure in place,” he says, adding that while it’s possible that the county will be sued over the moratorium, “sometimes you just need to make a decision based on what you think is right. I’m really happy the commissioners did what they did.”

Shanks agrees that the public outcry played a role in the board’s decision.

“There’s no doubt, when you have 300 people show up for a meeting, and they get 1,000 emails, that’s definitely an indication that the public is behind it, and they have to pay attention to it,” he says. “I think the process worked, and I was happy about that.”

Commissioners reflect on decision

Jones says that, aside from the public input, there were several primary reasons why she supported extending the moratorium. The first was a study presented to the Regional Air Quality Council, which includes representatives from nine counties, showing that all air pollutants along the Front Range are on the decline except one: oil and gas emissions, which are “increasing rapidly,” according to Jones.

“The fact that we don’t have a handle on this growing problem helped underscore the fact that we’re in this place of seeing a big oil and gas boom creep across the east county line, into Boulder County, and greatly exacerbate a public health problem with the air quality that exists now, and that would only get worse,” she says.

Jones says the fact that county staff need at least 18 more months to collect baseline air and water quality data, and make sure they were prepared to deal with any leaks or emission problems, also played a role in the board’s decision.

“That was very influential as well, to say, ‘Wow, that’s how much time we need to get our ducks in order, if we want to say to the residents of Boulder County that we think you’re protected.’”

Then came the planning commission recommendation, and the realization that the phasing approach wouldn’t have slowed the drilling enough.

“At that point, I think it became clear to all the commissioners that the only real choice we had to assure that we were fully protecting our citizens and operating from a data-driven place was to extend the moratorium, get more information, study the impacts and get in place a great monitoring system,” Jones says.

She downplayed the worries that the moratorium will get challenged in court.

“The legal concern was not that we were going to get sued, because Boulder County, frankly, gets sued all the time,” she says. “It’s that you need to be responsible to make sure you don’t set bad legal precedent for ourselves and other jurisdictions. … The legal risk is that a court could say you don’t have the justification to go any further [with the moratorium], and then all of a sudden you’ve put a time limit on local government moratoriums that didn’t exist before.

“But at the end of the day,” Jones explains, “it wasn’t the legal issues that swayed the outcome, it was that the tradeoffs were such that it was more important to make sure we were protecting public health.”

Commissioner Gardner agreed in an interview that the key elements that changed her mind included the air quality  study, the likely ineffectiveness of the phasing approach, the planning commission’s recommendations — and public comment.

“I think that’s always important,” she says of the feedback the board received. “There was an overwhelming number in favor of extending the moratorium. Any time you make a decision you want to hear what the public thinks about it.”

Commissioner Domenico told BW that factors in her decision-making process included the fact that the state legislature passed only two of 10 bills that would have addressed concerns related to oil and gas operations, and those two were “the least impactful, in terms of health and safety.” She agreed that the recent air quality study and questions about the county’s preparedness for implementing its new oil and gas regulations played a role as well.

Domenico also acknowledged that public input was a factor.

“I really appreciated the folks who referred to scientific studies and data, more than the emotional outpouring,” she says. “And believe me, I completely empathize with the emotional outpouring, because I know people are worried and afraid and not sure what the impact, eventually, of this industrial industry in an urban environment will be.”

Domenico has personal, firsthand knowledge of the impacts of oil and gas operations. Her parents, who own farmland in Boulder County, signed a lease with the Martin Oil Company decades ago, when income was tight. The company drilled two wells on their property in the early 1990s, then re-fracked them several years later, according to Domenico.

“That is exactly the thing that helps me empathize with people who are concerned about what could happen,” she says. “It was a very painful experience, actually. … Imagine what it would be like if it were you, and you saw the devastation of the trucks rolling in, and the road being created across farmland, and the impact of the area, the acreage, that is lost to the well site. It has an impact on family farmers who believe in conservation of land and protection of natural resources.’”

While Domenico says she doesn’t let her personal experience with oil and gas drilling sway her public-policy decisions, it’s clear that what happened to her family’s farmland had a profound impact.

“The noise and the lights and all of that, at the time those things were happening, that was very traumatic for people,” she says.

Respond: letters@boulderweekly.com

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