Colorado doesn’t play by its own rules

On July 17, the Longmont city council voted 5-2 in favor of imposing local regulations on oil and gas drilling, which included a ban on drilling in residential areas.

Longmont council approves oil/gas rules 5-2
Ban in residential zones survives on 4-3 vote

Last week the state of Colorado announced they intend to file suit against the city of Longmont naming the COGCC as plaintiff. In the past, municipalities have been sued by the oil and gas industry and private landowners, but this is a first for the state of Colorado.

State suit against Longmont would be uncharted territory
At the heart of the suit is local versus state control in oil and gas development

AG’s office to sue Longmont over oil/gas rules

Mike King is the executive director of the Colorado Dept of Natural Resources which oversees the COGCC. Regarding the lawsuit, King said in an email statement:

“This is a necessary step to get guidance from the courts. We’ve collaborated successfully with communities for decades on oil and gas development, and parties have traditionally been able to work through issues without drawing hard lines. In the case of Longmont, the community has taken a position we think jeopardizes efficient and orderly development of a resource all citizens depend upon. Citizens in Longmont and across the state deserve a clearer sense of authority on this matter, and so we think it’s time to turn to the courts for direction and resolution.”

When King says Longmont “has taken a position we think jeopardizes efficient and orderly development of a resource all citizens depend upon” he seems to be saying oil and gas development is more important than the protection of public heath and the environment, which contradicts the state’s own provisions in the Oil and Gas Conservation Act.

Last year the University of Colorado Law School’s Natural Resources Law Center compiled a report, as part of the Intermountain Oil and Gas BMP Project, which details Colorado oil and gas statutes, regulations, guidelines, and policies related to oil and gas surface operations.

Colorado Oil and Gas Law

In fact, state law provides for protection of public health, welfare, and the environment over the development of natural resources. Two provisions of the Oil and Gas Conservation Act stand out in clear contradiction to the state’s position on Longmont.

It is not the intent, nor the purpose of this article to require or permit the proration or distribution of the production of the oil and gas among the fields and pools of Colorado on the basis of market demand. It is the intent and purpose of this article to permit each oil and gas pool in Colorado to produce up to its maximum efficient rate of production, subject to the prevention of waste, consistent with the protection of public health, safety, and welfare, including the protection of the environment and wildlife resources…” (§34-60-102(1)(b)

§ 34-60-127 – Reasonable Accommodation – The “Reasonable Accommodation” provision of the Oil and Gas Conservation Act requires that oil and gas operations be conducted in a manner that accommodates surface owners and minimizes intrusion upon and damage to surface lands. This can be achieved by selecting alternative locations for wells, roads, pipelines, and production facilities, or employing alternative means of operations, where such alternatives are technologically sound, economically practicable, and reasonably available to the operator.

King also said:

“From a governing standpoint, we are concerned about a tangled patchwork of rules from jurisdiction to jurisdiction that create inconsistency, uncertainty and undermine the responsible development of our important oil and gas resources — resources we all consume — the jobs they afford and critical revenues to local and state governments across Colorado.”

What does he mean? Does he think oil and gas development should be exempt from local land use control? When you stop and think about it, he doesn’t make much sense. Historically, county and municipal governments have maintained regulatory authority on land use issues. State law provides for that, specifically with oil and gas development.

Colorado County and Municipal Law

“In Colorado, there are several statutes that give local governments broad powers to regulate land use. Particularly, the Local Government Land Use Control Enabling Act provides local government with broad planning and regulatory authority in land use. CRS § 29-20-104 (2010). More specific to oil and gas, under Colorado statutes, local governments have the authority to regulate oil and gas development extensively, so long as the local regulation are not in operational conflict with state statutes. CRS § 30-15-411 (2010).”

Scroll down and look at all the counties and municipalities that have adopted land use regulations regarding oil and gas development.

Maybe King is new here. Or maybe he thinks nobody is paying much attention. The fact is we have a whole bunch of rules and regulations in Colorado regarding oil and gas development. The problem is they are not being enforced.

Clearly this lawsuit reveals the state of Colorado’s position on oil and gas development is in contradiction with state law. The state’s lawsuit is mind-boggling and reflects a much more serious problem that affects all of us.

For that reason we should welcome this opportunity for judicial review of state law. Thanks to the courage of the Longmont city council we’re about to have a debate that is long overdue.

Game on Colorado …

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One Comment on “Colorado doesn’t play by its own rules”

  1. Carl Mc Williams Says:

    Peggy Tibbets is to be congratulated for her excellent research in bringing real intellectual capital to the gas drilling controversy and the inherent and fundamental conflicts between the COLORADO OIL & GAS CONSERVATION COMMISSION (COGCC) and the inalienable constitutional rights of We the People.

    That said, it is my layman’s opinion the statute that created the COGCC is unconstitutional and will never stand constitutional muster in federal district court. I have attempted to convey this opinion to interested parties; that the only strategy that has a chance of success is to challenge the COGCC statues in federal district court.

    Here is the COGCC statute that I hold is unconstitutional:

    C.R.S. 34-60-105; Powers of COGCC commission

    “(1) The commission has jurisdiction over all persons and property, public and private, necessary to enforce the provisions of this article, and has the power to make and enforce rules, regulations, and orders pursuant to this article, and to do whatever may reasonably be necessary to carry out the provisions of this article. Any delegation of authority to any other state officer, board, or commission to administer any other laws of this state relating to the conservation of oil or gas, or either of them, is hereby rescinded and withdrawn and such authority is unqualifiedly conferred upon the commission, as provided in this section. Any person, or the attorney general on behalf of the state, may apply for any hearing before the commission, or the commission may initiate proceedings upon any question relating to the administration of this article, and jurisdiction is conferred upon the commission to hear and determine the same and enter its rule, regulation, or order with respect thereto.”

    As you know, within the preamble of the July 4, 1776 Declaration of Independence, the legal doctrine of “Consent of the Governed” was established. If you read (above) the unfettered legal and political powers given by statute to the COGCC, without a vote of the people of Colorado (Consent of the Governed) it becomes obvious where the unconstitutionality of the COGCC is found, [@ CRS 34-60-105.]

    This legal action must start with competent counsel and be structured as a “Constitutional Controversy-Class Action” seeking injunctions from all COGCC permitted drilling using federal class actions (FRCP #23 (b) (2)) and 28 USCS, Sec. 1331, et seq.

    The controlling precedent that will prevail in a constitutional challenge to the COGCC statutes in federal district court is: MARBURY V. MADISON (1803) [US SUPREME COURT] Chief Justice John Marshall: “An act of the legislature that is repugnant to the constitution is void”. A Colorado case that will concur is: SPEER V. PEOPLE ex rel, Rush, 52 Colo, 325, 122 P. 768 (1912) “Change the plan of government-power is granted only to the people”.

    Carl Mc Williams
    Silt, Colorado

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