Explore, enjoy and protect the planet

May 30, 2014

John W Hickenlooper, Governor
136 State Capitol
Denver, CO 80203-1792

Re: Potential Legislation on Local Government Control of Oil and Gas

Dear Governor Hickenlooper:

We, the Sierra Club, are writing concerning the numerous City and County regulations, charter amendments, moratoria and bans on certain oil and gas activities within their jurisdictions, and the opportunity you and the State Legislature have to address this situation through a special legislative session. We respectfully submit these comments to be included in any proposed legislation for a special session to increase local control of oil and gas development.

The Sierra Club's Rocky Mountain Chapter has more than 15,000 members state-wide, including thousands of members in Longmont, Ft. Collins, Boulder, Boulder County, the City and County of Broomfield, Lafayette and Loveland, all of which have taken action to protect their communities from the harmful impacts of hydraulic fracturing ("fracking") and related activities. Many of our members are directly impacted, and we are greatly concerned over the State and industry lawsuits and threatened actions against these local governments.

Oil and gas development is impacting the environment and public health across Colorado. This heavy industrial activity in neighborhoods and near schools is untenable. In light of the problems that air pollution, toxic spills, water contamination, increased truck traffic and noise pollution cause for our communities, it is common sense for these cities and towns to say no and stop this dirty drilling from happening within their borders. Accordingly, we feel that any legislative solution must address several important issues in order to provide clarification for local governments as they work to safeguard their communities.
  • Allow local governments to go beyond minimum state requirements to protect citizens, communities, land, air and water from pollution;

  • Local government must have the authority under their zoning power and police power to impose setbacks greater than those of the COGCC for surface oil and gas operations (including well pads, compressor stations, condensate tanks and other sources of air emissions and potential leaks and spills), to keep them away from zoned residential areas, schools, playgrounds, parks and hospitals;

  • Legislation must not impede the ability of local government to regulate impacts of oil and gas development, including the granting of operator permits based on, but not limited to noise, dust and light pollution; and local government must be permitted to levy fees for inspections and enforcement;

  • Legislation must not limit local government action "materially impeding the recovery of oil and gas," which appears to be among the industry proposals for a special session. This would threaten Colorado's communities with a windfall to the oil and gas industry and it is considerably worse than the status quo.1

  • The current legal standard is that state law does not preempt all local regulation of oil and gas. Local governments have the right to regulate matters of local concern. Preemption occurs only when a full evidentiary hearing finds that the regulation "materially impairs or destroys" the state interests.2 The "state interest" is defined in the COGCC statues and expressly includes "protection of public health, safety and welfare" and the environment.3

  • This proposed narrowing of the law, to not "materially impede the recovery of oil and gas," appears to be an attempt to elevate one aspect of the state interest recovery of oil and gas above all others. We would like to see the current “state interest” language retained or strengthened to make it clear that protection of public health, safety, and welfare and the environment must be considered in determining if a local government law or action is preempted.

  • Local governments regulate the location of all industrial and commercial activities other than oil and gas pursuant to their zoning authority and/or police power, and this one industry should not be exempt to local zoning laws.
We also have grave concerns should the legislation include limits on the use of local government moratoria. Removing a legal and commonly-used local land use tool in regards to one industry is unacceptable when it can still be used to govern others. We also doubt that the state government has the legal right to prevent home-rule jurisdictions from using moratoria.4 Local governments should be allowed to keep these in place if they are home-rule jurisdictions. And, contrary to some statements that have been made in the press, local moratoria are not "takings."5

We sincerely hope that any legislative solution supported by the administration will address our concerns and include our recommendations. Having participated in past rulemakings, we know that absolute consensus on this issue is impossible. However, we believe that a common-sense, balanced approach recognizing the zoning and police powers of local communities would be embraced by the overwhelming majority of Coloradans and would be a huge step forward for those most impacted by encroaching oil and gas development. Without a strong legislative solution, communities all over the state will rally behind a statewide citizen initiative effort, so we urge you to address this situation now, and recognize the rights of the local governments to protect their communities from these harmful industrial practices.

Thank you for considering these comments.

1. Language used in Wednesday, May 21st concept for legislation, "OIL AND GAS LOCAL CONTROL BILL 5.20 VERSION"
2. Bd. of County Comm'rs v. Bowen-Edwards, 830 P.2d 1045, 1059 (Colo. 1992).
3. Colorado Revised Statutes 34-60-102(1)(a)(I), (IV)
4. Colorado Revised Statutes 31-15-401; Colo. Const. Art. XX, 6 (home rule municipalities enjoy "the full right of self-government in both local and municipal matters."); see also Meadowbrook-Fairview Metropolitan District v. Board of County Commissioners, 910 P.2d 681 (Colo.1996) (counties have such police powers as granted by constitution or delegated by General Assembly).
5. The United States Supreme Court and the Colorado Supreme Court both recognize that temporary moratoria of reasonable duration are legitimate exercises of local governments' authority to preserve the status quo, and protect the public health, safety, and welfare, while developing a long term plan for development. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 337-38 (2002) (upholding "rolling moratoria" totaling 32 months against a takings claim); Droste v. Board of County Comm'rs of the County of Pitkin, 159 P.3d 601, 606 (Colo. 2007(County had the authority to impose a temporary moratorium (10 months) preventing the county from processing land use applications pending adoption of a master plan).