REGULATION

'Cultural divide' shapes Colo.'s clash with city drilling rules

LONGMONT, Colo. -- Kaye Fissinger can point to where every oil and gas well will be drilled around Union Reservoir. Not that she's welcoming them.

As a breeze broke the stillness, lifted the branches of shade trees and pushed a small catamaran across the small lake on a Wednesday afternoon last month, she pointed to the one already there.

In the distance was a beige tank battery, the pipes, tanks and other equipment that remain after a well is drilled. It is the first of eight wells expected to be drilled at the city park around the lake under an agreement between the driller and the city government.

"Look at what it's going to do -- derricks, trucks, tank batteries ..." said Fissinger, activist and campaign manager for a local anti-drilling effort called "Our Health, Our Future, Our Longmont."

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The question of whether there will be more derricks, wells and tank batteries is the subject of a legal fight between that same city government and the state focused on who can regulate drilling. The City Council passed rules in July barring oil and gas wells from residential neighborhoods. Within days, the state sued to block it.

Longmont is where the spread of drilling on Colorado's high plains, spurred by advances in hydraulic fracturing, is slamming into the sprawl of Denver suburbs along the state's Front Range. It is not the first place where advances in hydraulic fracturing and horizontal drilling have pushed drilling deeper into suburban and even urban areas.

State officials have banded together with the oil and gas industry to head off regulation by both federal and local governments, arguing simultaneously against a federal "one size fits all" approach and the "patchwork" that would be created by giving cities and counties control over exploration and production.

In Pennsylvania, local governments sued the state after the Legislature passed a measure limiting local control over drilling. In New York, drilling companies such as Colorado-based Anschutz Exploration Corp. have been losing legal challenges to local bans.

But the Colorado suit is the first case in the nation's current drilling boom in which a state agency has gone to court to prevent a local government from asserting jurisdiction over drilling. The city's formal response is due by Friday.

The plaintiff in the suit is the Colorado Oil and Gas Conservation Commission (COGCC), a state body charged with policing and promoting development. But Gov. John Hickenlooper (D) has led the charge against Longmont's ordinance, calling Longmont's rules "to a certain extent too forceful" in a recent speech and saying they would put "intense pressure" on other local governments to create a patchwork of different rules.

"I think there's got to be a limit to it," Hickenlooper said (EnergyWire, Aug. 16). "We literally begged Longmont not to go forward."

Drilling in suburbia

Anti-drilling critics have taken to calling the popular governor "Frackenlooper."

Those critics say exempting oil and gas from city zoning amounts to special treatment for a powerful industry that endangers people's health.

City governments can generally decide where to allow factories, convenience stores, subdivisions and strip clubs. State governments such as those in Pennsylvania and Colorado are asserting that those city governments have no such say about oil and gas production.

"Name another industry to me that doesn't have to comply with local, disparate zoning regulations," said Michael Bellmont, another Our Longmont leader, sitting in his long-term care insurance office in Longmont's trendy Prospect New Town district.

In Texas, where drilling is more entrenched in the culture, cities do have jurisdiction over oil and gas wells. Two years ago, the Texas Legislature rejected efforts to give the state's oil and gas agency -- called the Railroad Commission -- authority over drilling in cities.

"The state has very minimal guidelines for where you can drill. What the cities have done is try to fill in the blanks," said Terry Welch, a lawyer who represents cities in Texas. "The cities said, 'Why should every city have the same rules?'"

But some local officials agree that rules should be uniform across the state.

"COGCC rules in Colorado work well for the industry," said Bonnie Finley, a Longmont City Council member who opposed the zoning ordinance, "and I think that's all we need."

Driving north out of Denver on Interstate 25, sprawled-out townhouse complexes slowly give way to cows, hay farms and then pumpjacks, frozen in time. Just off the highway, one pumpjack gyrates slowly next to a line of frack trailers, looking like a cow chewing its cud next to the thoroughbred barn.

Four miles closer to the mountains, Longmont restores the suburban feel. But it is still a town of contradictions. It is a former farming town on the western edge of Colorado's High Plains. But it is on the eastern edge of Boulder County, home to the University of Colorado and the famously liberal county seat of Boulder. The city has both the county fairgrounds and the "Anti-Corporate headquarters of Oskar Blues Brewery."

Longmont does not have the history with extractive industries that some of its neighbors do. In the decades before Denver's growth spilled into the area, pumpjacks were common to the east in Weld County. Not in Longmont, though, where the economy revolved around agriculture. People who moved there in the 1990s and early 2000s had little indication they might find themselves dealing with drilling.

"It's a cultural divide," said Sean Conway, chairman of the Board of Commissioners in neighboring Weld County. "They don't have the benefit of experience and battles fought."

Powerful forces

Fissinger, the anti-drilling activist who moved here from California in 2006, wants Longmont to retain some of that unique identity. Driving through Firestone, the city to the east of Longmont in the more growth-friendly and agribusiness-oriented Weld County, she started pointing out each beige tank battery.

"There's a tank battery. ... There's a battery," she said. After just a few moments, it started to seem pointless, like pointing out burgundy cars on the interstate.

"That's what I mean," Fissinger said. "We don't want Longmont to be another Firestone."

And that is why her group is taking things a step further than zoning wells out of neighborhoods, pushing for a total ban on hydraulic fracturing with a proposal that will be on the city's ballot in November (it would not cover drilling without fracturing). If it passes, it will likely be subject to the same legal challenges as the zoning ordinance.

Oil and gas drilling companies say Longmont and Firestone, and other areas of the state, should have the same rules. The industry says it needs a "predictable regulatory environment" and that allowing Firestone and Longmont to have different rules slows permit approvals. In comments sent to the city in February, the Colorado Oil and Gas Association (COGA) noted that state officials process about 5,000 permits a year, which result in the drilling of about 2,000 wells each year in the state.

"If each well approved by the state is also forced into a months-long local permitting process, the number of wells annually drilled in Colorado would plummet, along with tax revenues, economic activity and jobs," the industry association wrote in comments to the city.

Powerful forces are arrayed around this fight. Fissinger's group is getting help from Food and Water Watch, a national environmental group that split off years ago from the Public Interest Research Group and now has an $8 million annual budget.

Longmont's elections have been shaped by the American Tradition Partnership, a conservative group based inside the Washington, D.C., Beltway that has been active in state and local elections in Montana, Oklahoma and Virginia and pressed a pro-drilling agenda in Colorado's Garfield County.

And Hickenlooper, a popular governor whom some envision as a Democratic presidential candidate in 2016, has come down firmly on the side of industry. Hickenlooper became prominent in Colorado as a brew-pub pioneer in Denver. But before that, he was a petroleum geologist.

Hickenlooper did a radio ad earlier this year for COGA, asserting the industry talking point that since rules were created in 2008, the state hadn't "had one instance of groundwater contamination associated with drilling and hydraulic fracturing."

But oil and gas commission spill records show 255 incidents in which groundwater was "impacted" during 2009, 2010 and 2011.

And before the new rules, Colorado was already the scene of a few of the nation's highest-profile groundwater contamination cases.

'Once they invade, they're here'

Laura Amos of Silt, Colo., blamed hydraulic fracturing chemicals for the rare tumor she developed after a well near her home blew out in 2001 during the fracturing process. State regulators concluded fracturing was not to blame for the problems but fined the operator $99,400 because gas was found in her well.

Nearby in 2004, a drilling crew poured a faulty cement seal around another well in 2004 that allowed gas and benzene to seep into a nearby stream, called West Divide Creek. The state hit Encana Corp. with a fine and declared a drilling moratorium in the area for several years.

People complained in 2009 that gas was once again seeping into the creek, but the state rejected the claims. The residents' complaints were detailed in the 2010 anti-drilling documentary "Gasland."

In 2008, COGCC asked gas drilling companies to investigate whether they had contaminated the drinking water at Ned Prather's hunting cabin near DeBeque, Colo. (Greenwire, Oct. 12, 2009). Tests showed the water had benzene and related chemicals at a concentration 20 times the safety limit. The companies determined they had not caused the contamination. The state went back, hired its own consultants and fined the lead company more than $400,000.

Through a spokesman, Hickenlooper declined to comment beyond what he'd already said publicly.

In Longmont, groundwater around a well 360 feet from a middle school has been contaminated with carcinogens such as benzene, which was measured at almost 100 times the state limit.

Underscoring some of the dangers of drilling, the same day Fissinger pointed out the tank batteries in Firestone, a well blew up and killed a 60-year-old well worker not far away in the Fort Lupton area of Weld County (Greenwire, Aug. 17).

State and industry officials say that Colorado has some of the most comprehensive state rules in the country. Even if that is true, state oil and gas regulation across the country is looser than regulation of other industries and is characterized by minimal fines and built-in conflicts of interest (Greenwire, Nov. 19, 2011).

Industry is guaranteed three seats on Colorado's nine-member commission, down from five of seven in 2007 (Greenwire, Nov. 30, 2011). And its mission is to "foster" development while also protecting health. To Finley, whose day job is with the Colorado Association of Commerce and Industry, something of a state chamber of commerce, that makes sense.

"You want people who know what best practices and safe practices are, and those are the people from the industry," she said.

But it leaves Fissinger and her colleagues with little faith that the state will protect residents from the ills of drilling. She and her fellow drilling opponents say the state agency is interfering with rights granted in the state constitution, including residents' right of "seeking and obtaining their safety and happiness."

Camouflaged with beige paint against the arid, drought-darkened landscape, the tank batteries at Union Reservoir don't leap out like a neon sign for a strip club or car wash. Even if they're not that hard on the eyes, she said, they can still be rough on the lungs and the rest of the body.

She added that Colorado has only 17 full-time field inspectors; state officials note that an additional 20 people conduct oil and gas inspections as part of their work.

"Air pollution, fugitive gases, spills," Fissinger said. "By the time they get around to looking at it, the damage is done. Once they invade, they're here."

Click here to see Longmont's final zoning rules.

Click here to see the Colorado Oil and Gas Association's comments on Longmont's proposed oil and gas zoning rules.

Click here to see the Colorado Oil and Gas Commission's lawsuit against Longmont.

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