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January 19, 2012 11:02 PM UTC

Gunnison Wins One for All of Us

  • 4 Comments
  • by: AndrewBateman

Thanks to the determinations of the Gunnison County Board of Commissioners and their County Attorney, David Baumgarten, Colorado local governments will enjoy a much greater ability to protect their residents in 2012 from the harmful effects of oil and gas drilling, as a result of a landmark (though mostly unreported) ruling issued earlier this month.

The Colorado Independent was one of the only news outlets to report on it.

The ruling against SG Interests (and by extension, the entire Oil and Gas Industry) empowers local governments to pass regulations, such as those requiring:

– Closed loop systems (that capture all gases and emissions),

– Sound barriers,

– Larger setbacks,

– Non-toxic frack fluids

– And other mitigating measures

And that those regulations do not present “material obstructions” to the state’s interests, but rather that they “materially harmonize” the local government need to control land use and protect public health and safety with the state’s interest in oil and gas extraction.

Much more, including history and information about the ruling after the jump…

Background

In 2006, David Baumgarten,  the County Attorney for Gunnison County, won a landmark case for county rights to mitigate harm from oil and gas extraction through local rules. Then, in 2009, he and another county attorney wrote a legal overview paper of Colorado case law regarding oil and gas extraction,  “Preemption is Not Assumed”,  outlining the continuing legal force of case law supporting county rights to mitigate harm.  They asserted in this overview  that judicial rulings show that Colorado local governments cannot entirely “materially obstruct” the interests of the state regarding  oil and gas extraction, but that local governments have the clear right to create rules and ordinances governing how and where such extraction can be done, as long as those ordinances and rules “materially harmonize” with the overall state goal of extraction.  

In the meantime, COGCC and industry have been extremely active in our state, continuing to assert “state preemption”, i.e., the supposed superior right of the state to promote oil and gas extraction, insisting that this right trumps the rights of local governments to zone and contain harm of industrial oil and gas development, in all but a few minor areas.   As oil and gas applications have recently multiplied at a meteoric rate, with the prospect of fracking the Niobrara shale in Colorado for natural gas and for oil, industry is launching a huge wave of applications that move oil and gas extraction operations right into city limits and populated areas. The state oversight agency, the Colorado Oil and Gas Conservation Commission (COGCC)  and the industry association, COGA (Colorado Oil and Gas Association) have launched an agressive united campaign that supports the removal of any obstacle to swift and aggressive extraction of oil and gas wherever there might be prospect of it.

Meanwhile, with the game changing intrusion of the relatively new (about 7-10 year old) process of horizontal fracturing (“fracking”), with its immensely higher heavy industrial operations and use of extraordinary quantities of water to extinction, its use of a much higher number and volume of toxic (or potentially toxic) chemicals, and increasing reports of water contamination, serious public health and safety impacts, and significant impacts to quality of life and property values, local governments in Colorado have been scrambling to determine the prospect of harm and their ability to contain it, as this process moves right into towns and cities, within 100- 350 ft of residences and human activities.  

As this fact finding and rulemaking process has been unfolding at breakneck speed for local governments in Colorado, COGCC and COGA have been very busy inserting themselves into those deliberations. To this end, the COGCC and industry have been appearing at every venue where local governments are considering the creation of or the strengthening of their oil and gas rules and ordinances, to protect their populations’ health and safety, zoning, and property values.  The COGCC and COGA have not only been strongly asserting the “preemption doctrine” at these venues (the supposed superior right of the state to promote oil and gas extraction), they have been issuing threat of litigation if local governments do not abandon efforts to write protective rules and ordinances that go beyond the specific (and inadequately protective) terms of COGCC regulations.

Despite the overt conflict of interest and inappropriateness of a state oversight agency, COGCC, engaging in strong arm lobbying for the private profit interests of industry and against the rightful responsabilities and needs of local governments, this  intimidation campaign has had huge impact on Colorado cities and counties.  For example, in Arapahoe County, it wholly succeeded in persuading the majority of the County Commissioners to abandon the newly written rules for oil and gas extraction that the county had produced over many months of consideration through the staff of the Planning Department, public input hearings and written submissions, and meetings of the Planning Commission.  

Other local governments,  more apprised of the stakes and hidden costs to their area and/or more protective of their rights of local government self determination, such as Colorado Springs, Commerce City, Longmont, La Plata county, enacted moratoriums  that would allow them more time for reviewing impact facts and legal options for mitigating harm.  Those local governments that have attempted to hold on to their rights of self determination were vindicated on January 3, by a court case in Gunnison County.

The Big Win on January 3, 2012

On January 3, 2012, Gunnison County won litigation in a suit brought by SG Interests  (oil and gas company), vindicating the rights of Colorado local governments to assert their responsabilities and rights to mitigate harm from oil and gas extraction.

David Baumgarten, Gunnison County Attorney, was the attorney for the Board of County Commisisioners of Gunnison County, in this suit brought by SG Interests, Ltd (oil and gas operator), alleging that the county’s oil and gas rules go beyond the preemptive regulations of the state (COGCC’s rules) and represent material obstruction of their company’s right to extract and the state’s interest in the accomplishment of that extraction  (i.e., that the county had overstepped their legal rights because state regs supposdedly preempt the county’s ability to write rules in an area where only the state has the right to regulate).

In fact, the judge ruled that “the state’s interest in oil and gas actions is not so dominant nor do the interests of state and county regulation of oil and gas activities conflict as to  impliedly preempt county authority to regulate the development and operation of such activities.”    

The judge further noted that “An operational conflict between county regulations and state law exists when the local regulation materially impedes or destroys the state interest” and that “A county regulation is in operational conflict on its face only when no possible construction of the regulation can be harmonized with the state regulatory scheme…” and that any assertion of operational conflict would need to be determined through evidentiary hearing  (not by simple claim of preemptive rights).  The ruling also acknowleged county rights to local recovery of technical or (consultant) expert fees for review of technical permit applications.

What’s Next?

This is a huge win for the Colorado public and its local governments, acknowledging that “preemption is not assumed.”

In effect, local governments can proceed to argue that closed loop systems (that capture all gases and emissions), sound barriers, larger setbacks, non toxic frack fluids and other mitigating measures do not present “material obstructions” to the state’s interests, but rather that they “materially harmonize” the local government need to control land use and protect public health and safety with the state’s interest in oil and gas extraction.

Why have you not read about this huge win in the Denver Paper?  In your local paper?  You should write to them and ask.

Is your local government county attorney aware of this ruling?  Have they informed your local council members and county commissioners?  Have they informed the public about this critical development?  Find out. And ensure that your local government is empowered with the latest information to protect its people.

Have our legislators  been apprised of this important development, as they begin to consider bills on fracking and oil and gas related issues?  Don’t assume they have. Write your State Rep and Senator today.

We must build on this victory and continue to protect the rights of the people, via their local governments, to restrict and regulate the oil and gas drilling in their own backyards.

Portions of this piece were written by members of the “What the Frack?!” commission, an Aurora-based grassroots organization dedicated to ensuring the safe and environmentally conscious implementation and execution of Oil and Gas Drilling in Colorado. All excerpts used with permission

http://frackingcolorado.wordpress.com/

Comments

4 thoughts on “Gunnison Wins One for All of Us

  1. The court’s decision is exciting and nice, but doesn’t rise to the level of greatness you or the others claim. The case reenforces the current ‘operational conflict’ criteria that the courts came up with in previous cases.

    The state does not have the ability to preempt local government land use authority for oil and gas. Local governments do not have the ability to restrict oil and gas operations. Also, unless I’m mistaken, the Gunnison case didn’t mention fracking, which is a technical matter that locals don’t have regulatory authority over (even though groups like What The Frack claim they do). SG tried to argue that since the state went through the COGCC rule review then those new rules should preempt local land use regulations. The court disagreed and reaffirmed that in some areas there continues to be a local and state interest.

    The most interesting thing isn’t the court case, but the MOU Gunnison signed with the COGCC as a first step towards locals inspecting oil and gas operations in the county. That is the historic piece. That is what needs to be discussed, not who regulates what.  

    1. For me, I just think this entire, ongoing battle between oil and gas drillers and residents who don’t want to be poisoned is entirely under-reported. How this goes over the next year or two is likely to define the oil and gas industry in Colorado for several decades to come and people should know about it.

      Trouble is, is difficult for reports to write about it in a consise way while making it interesting to the lay readers. So many simply don’t. There are some people (including personal friends of mine) that believe the media silence is contrived or malicious. I don’t. I just think they can’t figure out how to make the story interesting. And as you can see above, I haven’t quite figured that out either.

    2. But it doesn’t plow new ground.  It does reaffirm that localities do have some authority.  And its good to remind industry of that, and SG Interests in particular needs to learn that. The more localities that exercise authority–especially in new and creative ways–the more the state will have to participate, through MOUs or whatever, and the sooner we will get to a place where the public interest shapes how this activity occurs, rather than the corporate domination of our politics.  

      Now that populated areas–Front Range–are affected, things will change more quickly than when it was just us bumpkins on the Western Slope.  Same for the national politics–now that NY and Ohio and places like that are threatened all of a sudden CDC scientists, doctors, and others are paying attention.  When it was out in the western gaspatch, no one really cared…

  2. Perhaps you should talk with folks who have been around for a while about these issues before you spout off.  The fact is that this issue has been around since I started practicing law over 30 years ago at one of the best oil and gas firms in Colorado.  I argued these issues for Broomfield more than ten years ago when the oil companies actually did start drilling in city limits and quite close to homes on Broomfield open space.  This issue has always been out there and there have occasionally been District Court opinions upholding this sort of stuff.  

    The reality for you in Aurora is that the development is coming on your eastern flank, and it’s coming in a big way.  I’m sure that you heard that Conoco just hit a 15,000 bbl per month well in an area just east of Aurora and south of the Airport.  Leasing activity is outrageous and the prices being paid for acreage are enourmous.  With the advent of horizontal drilling, many areas that weren’t productive before will be very productive now.

    I don’t know whether the upper courts will uphold the Gunnison ruling, but given the much more stringent regulatory structure at the state level today, I kind of doubt it.  

    Appreciate your enthusiasm, but you know there are property rights involved in this and the oil and gas owners have them too.  I don’t know that owners in the City of Aurora are really going to care if the underground water is polluted, since when I was growing up in Aurora, City leaders, including my parents, had the foresight to create a water system that is really second to none and doesn’t significantly rely on underground water.  Further, the reality is that with your district being completely west of Buckley Road and in the middle of town (was all open field out there when I grew up) people aren’t going to be that interested in that issue in this district.  So, I would suggest that you find something people in the district might care about.

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