Colorado Democrats’ sweeping package of oil and gas reforms passed the state Senate this week and will soon be taken up by the House. But some activists are expressing concerns about the amendments to the bill made by Democratic leadership in the final hours before its approval by the Senate.
Colorado Rising, the anti-fracking group behind last year’s Proposition 112, has taken a neutral position on Senate Bill 181 since it was announced last month. But in a statement issued this week, the group said it feared that the amendments could water down some of the legislation’s key provisions.
“We maintain our neutrality on the bill but are concerned that the amendments added [Tuesday night] strip power from the intent of the bill and will cause litigation nightmares for communities that try to exercise increased protections from oil and gas,” said Colorado Rising spokeswoman Anne Lee Foster.
Senate Majority Leader Steve Fenberg, the bill’s sponsor, said in a statement that the bill's goals remain unchanged, and rejected claims that the amendments were "slid in" at the behest of the oil and gas industry.
“Every amendment that I offered was discussed with all of our stakeholders, including environmental advocates, land use attorneys, and local governments,” said Fenberg, a Democrat from Boulder. “The consensus was that this language doesn’t negatively impact the goals of the bill.”
At issue are several amendments proposed by Fenberg as the legislation was considered on the Senate floor on Tuesday, March 12. Following a recess that lasted nearly three hours, Fenberg submitted a series of six amendments, all of which were passed by voice vote prior to the bill’s approval on second reading. After days of acrimony at the Capitol, the passage of the amendments prompted Senate Minority Leader Chris Holbert, a Republican from Parker, to “applaud” Fenberg for “the open dialogue that we’ve been able to share in the past half hour.”
Two of the amendments drawing the most scrutiny from activists appear to impose new conditions on the rules that can be established by local governments and by regulators at the Colorado Oil and Gas Conservation Commission, the state agency that oversees drilling. The amendments add language clarifying that such rules should be enacted “to the extent necessary and reasonable” to protect health, safety and the environment.
While it may seem like a minor addition, many of the bill’s most important provisions concern small but potentially crucial changes to existing statutory language. The bill would direct the COGCC to “regulate” development rather than “foster” it; it would require development to be “subject to” health and safety considerations rather than “consistent with” them. The current language has been the basis of decisions by both COGCC regulators and the courts that environmental groups view as heavily tilted in the industry’s favor — and by changing the language, they hope to change the outcomes of future agency and court rulings.
That’s why the insertion of even a short, simple term like “necessary and reasonable” has set off alarm bells for some activists.
“You don’t want a loophole that they can drive a sand truck through,” says Susan Noble, an activist with the group North Range Concerned Citizens, which was formed to oppose a slate of drilling projects planned near neighborhoods in north Commerce City.
“We are concerned about what ‘necessary and reasonable’ means in the context of the amendments,” said Foster. “The oil and gas industry has a history of sliding in seemingly innocuous language that in application blunts much sought-after protections.”
Foster says Colorado Rising also has concerns about an amendment that would allow local governments to request that the COGCC form “technical review boards” to help determine alternative sites for proposed wells. Activists fear that this process would be stacked in the industry’s favor, but Fenberg stresses that the panels would be optional and non-binding.
“The intention of the bill was always to achieve two goals: ensure that the health and safety of Coloradans is prioritized over industry profits and development, and give local governments the authority to regulate oil and gas operations in their communities,” said Fenberg. “None of the amendments that passed throughout the committee process or floor debates negatively alter our ability to achieve either of these goals.”
The amendments, and activists’ anxiety about them, underscore a reality that has often gone overlooked as proponents and opponents have squabbled over SB 181 in recent weeks: The full impact of the bill won’t be felt until the COGCC drafts and enacts the many new rules it requires, a process that could take well over a year to complete. And while oil and gas interests have long exerted a great deal of control over the rule-making process, the environmental and community groups who have mobilized against the industry in recent years are determined to change that.
“The intent is to raise the floor on health and safety standards,” says Noble. “And if that can be accomplished through rule-making, great.”
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