Like many states in the western United States, the Colorado constitution provides the people the right to amend the constitution and enact legislation directly through a ballot initiative process by expressly adopting or declining to adopt a particular measure without involvement of the elected legislature. Opponents of oil and gas development in general, and the use of hydraulic fracturing in particular, are using the ballot initiative process to enact amendments to the Colorado constitution that, if passed, could significantly curtail oil and gas development in the state. Once again, the ballot initiative process has pushed Colorado to the forefront of the political debate over mineral development.
Using different approaches, many of the initiatives aim to provide local governments with authority to regulate or even ban oil and gas activities, including hydraulic fracturing. For example, one measure, which is silent on oil and gas activities, would create a new fundamental right to “local self-government” as part of the Colorado constitution. This initiative allows local governments to establish and protect the fundamental rights of “individuals, communities and nature.” The initiative states that local ordinances enacted to protect these rights could not be preempted by state, federal or international law. While the impetus for this initiative arose from the movement opposed to unconventional oil and gas development, the scope of the initiative is far broader. Other local control ballot initiatives: (i) specifically grant local governments authority to regulate oil and gas operations in a manner stricter than state law; (ii) make the public trust doctrine part of the Colorado constitution, or (iii) attempt to enact new setback requirements for oil and gas wells. In all cases, if the ballot initiative(s) meets the requirements to be placed on the ballot and a majority of voters approve the initiative(s), then those initiatives become law with little opportunity for the State of Colorado legislature to amend or invalidate the initiative adopted by the people. The success of these initiatives will be closely watched by proponents and opponents of unconventional oil and gas development.