Climate of Resistance: Enact local fracking bans

Climate change is too great a threat for Coloradans not to take bold and decisive action in response.

The landmark Intergovernmental Panel on Climate Change report in 2018 said that to avoid the worst catastrophes of climate change people must limit warming to 1.5 degrees Celsius above pre-industrial levels. Last year the planet reached 1.2 degrees Celsius above pre-industrial levels.

“The state of the planet is broken,” U.N. Secretary-General Antonio Guterres said in a speech at Columbia University in December. “Humanity is waging war on nature. This is suicidal.”

This planetary crisis exhibits itself in Colorado in ways that already affect every resident. Unprecedented wildfires, diminishing water sources, a decades-long drought and ailing forests are just some of the adverse conditions in Colorado that are attributable to climate change. These cost lives and livelihoods, and will continue to exact an incalculable toll decades into the future.

The extraction and use of oil and natural gas is a primary driver of climate change. Fossil fuel extraction results in air and other pollution in nearby neighborhoods, and it releases greenhouse gases. Consumption of fossil fuels for energy and transportation accounts for a vast amount of the emissions that cause climate change.

Regulation of the oil and gas industry in Colorado will not alone solve climate change. But Colorado leaders have a moral obligation to protect the health of Coloradans and do their part in a global crisis to respond on a state level. Instead, officials too often show undue deference to the oil and gas industry. But available to Coloradans are at least three avenues by which to better resist the dirty, avaricious oil and gas industry — local fracking bans, robust severance taxes, and more money for environmental clean-up. Each of the commentaries in this series discusses one of these topics.

Fracking is the dominant method of drilling for oil and gas in Colorado and the country. Fracking, or hydraulic fracturing, involves the high-pressure injection of water, sand and chemicals into rock formations. This creates fractures and releases fossil fuels.

The process is inherently pollutive to water and air. Several Colorado communities, including Fort Collins and Longmont, have attempted to halt fracking, but the courts have thwarted them.

Until recently state law treated government oversight of oil and gas operations as a way to “foster” fossil fuel development, and the state had primacy over local regulations. In 2012, Longmont voters approved a citywide fracking ban, but the Colorado Supreme Court ruled that state interests as provided for in the Oil and Gas Conservation Act preempted a local fracking ban.

In 2019 lawmakers at the state Capitol enacted Senate Bill 19-181, which brought profound changes to oil and gas law. The law now directs the state not to “foster” oil and gas operations but to “regulate” them “in a manner that protects public health, safety, and welfare, including protection of the environment and wildlife resources.” And the law now includes a “no land use preemption” provision that says “a local government’s regulations may be more protective or stricter than state requirements.”

This would seem to allow a local fracking ban.

The Democratic sponsors of SB-181 were at pains to assure skeptics that the law wouldn’t lead to fracking bans. But the law’s language is what it is. Then-state House Speaker KC Becker of Boulder, one of the bill sponsors, said last year, “This bill was not a bill to create bans … But if we have the legal means under Senate Bill 181 to get fracking out of Boulder County, then I support that.”

In early 2020, the advocacy groups Our Health, Our Future, Our Longmont and Food and Water Watch went to court against the state with what seemed a persuasive argument that the change in state law meant Longmont’s fracking ban, which was still part of the city’s charter, could now be enforced. Boulder District Court Judge Judith LaBuda rejected the argument and ruled that the state’s interest in regulating oil and gas regulation superseded the local fracking ban, even under the new law. The case is now before the Colorado Court of Appeals.

The court should heed the plain language of state law and allow Longmont to enforce its fracking ban, which the city’s residents favored by a 20-point margin. This could set a precedent that many other communities could invoke with their own fracking restrictions.

Failing such a favorable ruling, anti-fracking energy should be put toward a statewide ban through the initiative process. This is a more uncertain approach. The legitimacy of local bans fits squarely within the framework of SB-181 when they’re shown to protect public health and safety. An immediate public health protection would be harder to ascribe to a statewide fracking ban, which could also run into other legal complications. But if the courts restrain communities from what should be clear legal paths to protection, residents must take alternate routes.

Whenever the oil and gas industry feels threatened, its defenders deploy economic scare tactics. In 2018, when an extraction setback measure was on the ballot, apologists made the exaggerated claim that the industry “supported” more than 230,000 jobs and contributed $31.4 billion in “economic impact” a year. A report from 2017, prepared by University of Colorado Denver researchers, offered more reliable figures. It identified about 38,000 people employed directly and indirectly in the oil and gas sector, contributing about $13.5 billion to the state’s domestic product.

Worthy efforts to assist workers’ transition to green jobs are already underway. The state has an entire office devoted to helping coal-industry workers and communities transition after coal-plant closings, and Colorado leaders are talking about how to provide similar assistance to oil and gas workers. In January President Joe Biden made it clear that a green transition for energy workers was part of his climate strategy. “A key plank of our Build Back Better Recovery Plan is building a modern, resilient climate infrastructure and clean energy future that will create millions of good-paying union jobs,” he said.

The purpose of local fracking bans is not to put people out of work. It is to put the health of residents above the profits of an environmentally destructive industry. But it would be a welcome outcome if they also hastened the creation of a modern, resilient climate infrastructure and clean energy future.

On Wednesday: Severance taxes.