An attempt to put restrictions on shale development, so as to effectively end it, is nothing new in Colorado. Just this year, several Democrats attempted to push a bill through the Colorado House of Representatives that would have given local governments specific authority to regulate the siting of oil and gas facilities. The Colorado House voted down that bill. But that has not stopped other efforts to end new shale development activities in the state. There are currently three voter initiatives in the signature-gathering stage that could have substantial impacts on Colorado’s oil and gas development – Initiative #78, Initiative #63 and Initiative #75.
Initiative #78 – “Mandatory Setback for Oil and Gas Development”
Initiative #78 seeks to amend Colorado’s constitution by requiring a 2,500-foot mandatory setback between an oil and gas development facility, which includes oil and gas wells, injection wells, production and processing equipment, and pits, and any occupied structures and areas of special concern. This new setback requirement would be applied to all new oil and gas development facilities in the state, as well as any operation that uses hydraulic fracturing. Initiative #78’s setback would make a substantial difference to oil and gas facilities as the current setback requirements are 500 feet from homes and 1,000 feet from buildings like hospitals and schools. A new report from the Colorado Oil and Gas Conservation Commission (COGCC) has outlined the extensive impact that this amendment would have, reporting that:
- Approximately 90 percent of surface acreage in Colorado would be unavailable for future oil and gas development or hydraulic fracturing under the proposed mandatory setback requirement.
- In Weld County, the state’s largest oil- and gas-producing county, 85 percent of surface acreage would be unavailable for new oil and gas development facilities or hydraulic fracturing operations.
- In the state’s top five oil- and gas-producing counties, 95 percent of the total surface area would be unavailable for new oil and gas development facilities or hydraulic fracturing operations.
As pointed out in the COGCC report, Initiative #78 would essentially put an end to new shale development in the state.
As has been reiterated numerous times, oil and gas regulation is currently written and enforced by the State of Colorado. But, much like the house bill that was voted down earlier this year, Initiatives #63 and #75 seek to give local authorities the ultimate say over oil and gas siting and operations. Initiative #63 seeks to do this by claiming protection of a healthy environment, stating, “If any state law or regulation addresses the same topic as any local law, regulation, ordinance or charter provision enacted or adopted pursuant to this article, the law, regulation, ordinance or charter provision that is more protective of a healthy environment shall govern.” As can be seen, Initiative #63 would allow a town or municipality to pass a law completely banning hydraulic fracturing in order to be “protective of a healthy environment,” which would override the state’s “less-protective” law.
Initiative #75 takes a more forward approach to giving local authorities the power to regulate oil and gas facilities by directly providing that local laws can, and will, supersede state laws regarding oil and gas. Initiative #75 permits local laws to be more restrictive than laws enacted by the legislature or executive agencies of Colorado and provides that local laws to mitigate local impacts from oil and gas development “are not subject to preemption, even if they conflict with a state statute” or are more restrictive than state statutes.
The signed petitions, which require at least 98,492 signatures, must be submitted to the Secretary of State by August 8. And the Secretary of State then has until September 7 to determine the sufficiency of the signatures collected. Should these initiatives receive the required signatures to be placed on the November ballot and be approved by the electorate in November, the oil and gas environment in Colorado may be greatly altered.