How Close Should Fracking Wells Be to Humans?

Cullen Lobe’s environmental consciousness was awakened during the Dakota Access Pipeline standoff in 2016 between the Standing Rock Sioux Tribe and companies planning to run a gas pipeline underneath the Missouri River, the tribe’s only source of fresh water. During his first night protesting alongside the Sioux that November, he remembers being blasted with water cannons by local police.

After returning to Colorado, Lobe soon encountered what he calls the local version of the DAPL fight at Bella Romero Academy, a predominantly low-income, minority, fourth-through-eighth-grade school in Greeley whose ballfields could soon be less than 1,000 feet from 24 fracking wells. Nearby residents have protested the natural-gas development project for years, and Bella Romero’s school district has unanimously opposed the project. Environmental groups have even sued the company behind it, Extraction Oil and Gas, in an effort to put a stop to its plans.

But in spite of such resistance, Extraction is forging on with the Bella Romero development. Fracking is slated to begin in May 2019.

Earlier this year, a handful of local activists including Lobe entered Extraction’s fracking site to stage a protest that included Lobe locking himself to one of the company’s bulldozers. The protest was streamed to Facebook, putting a national spotlight on local concerns about the risks and potential health impacts of a fracking site so close to a school. But what activists believed to be a simple act of civil disobedience has landed them in court, with Lobe, who’s studying journalism and environmental studies at Colorado State University, facing up to a year in jail.

Lobe sees communities across Colorado fighting fracking developments that are increasingly encroaching on neighborhoods and schools.

“I see this everywhere,” Lobe says. “These corporations, they come into these communities and they destroy these communities. They have all the money and power. Now it’s here at home, and there’s no part of my body that says I can sit back and watch this happen.”

Activists like Lobe, environmental groups and even cities are fighting back, hoping that state regulators and companies will hear their pleas. Voters may even get to decide in November how close fracking wells can be to the public.

The controversy over the Bella Romero project dates back to 2013, when a company called Mineral Resources was granted a permit for a fracking operation near a south Greeley charter school called Frontier Academy. Mineral Resources was acquired by Extraction Oil and Gas in 2014, which abandoned its plans near Frontier Academy after significant pushback from parents.

An alternative to the Frontier Academy site was found, about ten minutes to the east. The new site was right behind Bella Romero Academy, where more than 90 percent of students qualify for free and reduced lunch. Extraction didn’t return requests for comment for this story, but it recently told the New York Times that the Bella Romero location offered an opportunity to pipe out oil and gas, which would reduce truck traffic at the site, and to employ sound-minimizing rigs thanks to the availability of electric utilities on the site.

Despite community concerns over public health and safety issues that could arise from the operation’s proximity to the school and surrounding homes, Weld County commissioners unanimously approved the site in 2016, and the Colorado Oil and Gas Conservation Commission, the state’s regulatory agency, granted Extraction’s drilling permits in 2017.

Fracking has allowed oil and gas companies to extract hydrocarbons in what would otherwise be energy dead zones. The process involves injecting a mixture of water, sand and chemicals deep below the ground to fracture geological formations and release hydrocarbons, which are converted to natural gas and petroleum for our energy-consumption needs.

Fracking hasn’t just helped generate huge profits for energy companies; local governments, like Weld County, have profited greatly from leasing their mineral acres. In 2017 alone, the county earned $21 million from its mineral leases. It has 22,204 active wells, according to the COGCC — more than any other county in the state. Those wells produced more than 119 million barrels of oil and over 678 million MCF, or a thousand cubic feet, of gas last year.

The COGCC mandates that oil and gas facilities, including drilling or storage sites, be at least 350 feet from outdoor activity areas like playgrounds, 500 feet from occupied buildings, and 1,000 feet from high-occupancy buildings such as schools, grocery stores or hospitals. For occupied structures, the state measures setback distances from the center of the well to the building itself, not the property line.

In April 2017, a month after the state sanctioned drilling near Bella Romero, four environmental groups, including Weld Air and Water, the Sierra Club, the National Association for the Advancement of Colored People and the Wall of Women collectively sued the COGCC to force the agency to revoke Extraction’s permit to frack near the school.

“Extraction has built its business model on going into areas where other operators won’t go. That’s their niche — their special sauce, so to speak. That’s definitely the case [here],” says Kevin Lynch, an associate professor of law at the University of Denver and the attorney representing the groups trying to revoke Extraction’s permits near Bella Romero. “If [Extraction and the state] rush ahead and develop it right now, the children will bear the brunt of it, and there’s no way to undo that.”

The basis for Lynch’s lawsuit is rooted in what is commonly referred to as the Martinez case, in which a group of underage plaintiffs sued the COGCC in 2014 to make public health and safety a pre-condition to oil and gas site permitting. Although a district court judge shot down the case in 2016, the Colorado Court of Appeals sided with the plaintiffs last year and affirmed that the state must make health and safety a pre-condition to permitting.
However, Colorado Attorney General Cynthia Coffman appealed the case to the state Supreme Court, where it is still pending.

Meanwhile, Lobe and others have used activism to try to halt the project.

“The action we took — we didn’t damage property or hurt anybody,” Lobe says of the March 2018 protest. “We’re standing up for the children and the environment. I wouldn’t do anything differently.”

Four people, including Lobe, were charged with criminal trespassing, but since Lobe locked himself to the bulldozer, he has also been charged with tampering with oil and gas equipment, a Class 2 misdemeanor that comes with a minimum of three months of jail time. If found guilty, he could be sentenced up to a year. A trial date will be set in September.

Lobe’s attorney, Jason Flores-Williams, says he expects Lobe will plead not guilty to the charges and will seek a jury trial. Flores-Williams says he will argue that the public-health risks of fracking were so great and imminent that Lobe was justifiably compelled to break the law to prevent serious harm.

“In America, there’s a recognition that conscience-based civil disobedience is not the same as what we would term ‘crime.’ … There was no property damage, he was very cooperative, and it was a good action,” Flores-Williams says.

Lobe was not only hit with serious criminal charges in Weld County, but he was personally sued in civil court by Extraction, which was seeking tens of thousands of dollars in supposed damages from Lobe, who works at a doughnut shop, for hindering oil and gas operations at the site. After months of legal maneuvering, Extraction settled its case with Lobe on June 27. In exchange for settling the civil lawsuit, he accepted a court-ordered permanent injunction, which bars him from ever trespassing on Extraction’s property, interfering with its operations or taking drone foot-age of its work.

“Dangerously halting operations involving heavy equipment always creates serious safety concerns, and the safety of our team members is our highest priority,” says Extraction spokesman Brian Cain. “The settlement agreements that we have reached to date offer the necessary protections we feel are needed to keep such actions from recurring. At this time, we have offered settlement agreements to all offenders and have reached agreements with all those willing to settle this matter.”

As Flores-Williams sees it, “The purpose of these fracking corporations suing people in a personal capacity...is because [they] know it will do two things. It will bankrupt them...and in the process, it will send a message to everybody else involved in the case in any way: ‘You want to get involved? You want to go to planning meetings? You want to raise your voice and express yourself? Then you, too, can be the subject of a multimillion-dollar lawsuit from a multibillion-dollar oil and gas corporation.’”

Lobe was accompanied at the protest by John Lamb, a lawyer with the National Lawyers Guild who was acting as a legal observer; Brian Hedden, a documentary filmmaker and New York University student; Jeremy Mack, an educator who says he was there as an independent journalist to document the protest; and Mary Delffs, a Fort Collins resident and University of Northern Colorado alumna who unfurled a banner over the bulldozer that read “People Over Pipelines.” Extraction also sued Lamb and Delffs in civil court, but both cases were dismissed. Hedden shot drone footage of the site in addition to allegedly trespassing (the latter action brought criminal charges), and he is still fighting a civil case after a settlement agreement with Extraction fell through.

As for the lawsuit to shut down the Bella Romero fracking site for good, Lynch lost his case in district court earlier this year. The judge said in his written dismissal of the case that he didn’t agree with the appeals court’s decision on the Martinez case to make public health a pre-condition to permitting, adding that it is “not binding precedent,” that it is unpersuasive, and that the state statute has historically been interpreted to balance corporate interests and public health. In June, Lynch appealed to the Colorado Court of Appeals, where he hopes to find more sympathetic judges.

“The [Colorado Court of Appeals] has already shown a willingness to buck the [COGCC] and hold them accountable for protecting public health,” Lynch says. “If this type of development can get approved, it’s hard to imagine any development that would go too far.”

A grassroots organization wants voters to decide the safest distance between oil and gas activity and the public.

Colorado Rising for Health and Safety is collecting signatures for Initiative 97, which requires new oil and gas developments to be nearly half a mile away from homes, schools, playgrounds, drinking-water reservoirs, public open space and a slew of other “vulnerable areas.” The initiative also allows local governments to go beyond 2,500 feet and institute larger setback requirements. The deadline to turn in signatures to the Colorado Secretary of State was August 6; an audit will determine if enough valid signatures were collected to take the initiative to the November ballot (the state has until September 5 to count petition signatures).

“We the people are taking control over setbacks,” says Suzanne Spiegel, a campaign spokeswoman for Colorado Rising. “That’s the purpose of this measure — to make safer setbacks. Basically, we’re not creating a ceiling with this, we’re creating a floor. A 2,500-foot setback is the minimum.”

This isn’t the first time grassroots organizers have tried to take their anti-fracking initiatives to the ballot. In 2016, Initiatives 75 and 78 would have given communities some regulatory powers over the oil and gas industry and impose 2,500-foot setbacks, respectively, but both failed to gather enough signatures to make the ballot.

Organizers behind Initiative 97, some of whom also worked the 2016 campaigns, say that they have learned from previous mistakes. For instance, they mobilized much earlier in the year in oil and gas-impacted communities through volunteer trainings and informational workshops. The organization has also tapped into a growing undercurrent of resistance to residential fracking since the Firestone explosion in April last year that killed two people in their home and severely injured two others.

Even cities have tried to halt fracking development. In 2016, the Colorado Supreme Court struck down fracking bans or moratoriums implemented by Fort Collins and Longmont, ruling that state law preempts local ordinances.

Grassroots groups have argued that in Colorado, direct democracy by ballot petitions may be the only way voters can have a say in whether they want fracking in their back yards or near their schools.

“Since the COGCC has failed to put public health and safety first and protect Colorado families from this toxic industrial activity, we the people must act to protect our homes from this clear and present danger,” says Colorado Rising boardmember Micah Parkin.

State regulators claim that if Initiative 97 passes, it would be catastrophic for the oil and gas industry.

The COGCC estimates that 54 percent of the state would be off limits to any oil and gas development, not just fracking. And not including federal land, an estimated 85 percent of state and private property would be restricted from development. The implications would be especially concerning for operators in Weld County, which accounts for roughly half of the state’s active wells. Nearly 80 percent of Weld County could no longer be drilled.

“Clearly, this is an attempt to stop energy development in our state,” says Tracee Bentley, executive director of the Colorado Petroleum Council, in a statement. “This is bad for Colorado all the way around.”

Pro-industry groups say Initiative 97 would kill jobs and hurt the economy. The Colorado Alliance of Mineral and Royalty Owners has even said that if the initiative passed, the state would be on the hook to compensate mineral owners in the Wattenberg Field — one of the top ten producing oil and gas fields in the country, located in Weld and Adams counties — to the tune of $26 billion, for untapped minerals from which they could no longer collect royalties.

With so much on the line, Colorado Rising has faced significant hurdles to get its petitions past the finish line.

Signature-gatherers for Initiative 97 say they have been harassed, even stalked, by agitators posing as protesters. Colorado Rising alleges that agitators have yelled over signature-gatherers attempting to speak with voters and have physically blocked signature-gatherers from approaching people.

When Westword observed a Denver-based worker for the campaign, four college-aged protesters nearby held signs with messages like, “1 Signature = 1 Lost Job” and “This Person Probably Won’t Steal Your Identity,” the latter being a reference to the publicly available voter information that petitioners provide when they sign on to an initiative.

The oil and gas industry itself could be coordinating the attack on the signature-gatherers.

An employee of a major oil and gas company who spoke to Westword on the condition of anonymity shared a flier passed around to employees in her office that calls on them to report the locations of Initiative 97 signature-gatherers via email or a text line managed by Protect Colorado, a pro-industry PAC created by the state’s largest oil and gas companies. Protect Colorado’s top three contributors are Anadarko Petroleum, Extraction Oil and Gas and Noble Energy, which have each donated millions to the pro-industry group this election cycle.

When Westword tested the text line, we got a call back from someone trying to locate the reported signature-gatherer. Within the hour, four counter-protesters had flanked a signature-gatherer while he spoke with voters in Civic Center Park.

“Protect Colorado is part of a larger alliance that is concerned about bad business measures,” says Karen Crummy, a spokeswoman for the group. “We are exercising our First Amendment rights, which includes asking people to think about and read what they are signing. We have also asked people to let us know formally and informally when people are giving out factually incorrect information to voters.”

According to a May financial disclosure statement, Protect Colorado paid $705,000 to pro-industry lobbying firm Pac/West for “street marketing events and coalition building” around the time the protesters began following signature-gatherers in late May. Pac/West declined to comment for this story.

Colorado Rising’s challenges aren’t only on the streets. In July, the CEO of the company it hired to gather signatures, Direct Action Partners, left the state with about 20,000 signatures after abruptly quitting the campaign. The petitions were ultimately retrieved under threat of a lawsuit and under the spotlight of national media attention. Another signature-gathering firm admitted to Colorado Rising that it was paid to quit the campaign, and Colorado Rising alleges that pro-industry groups were behind the buyout in an attempt to stop Initiative 97 from making the ballot.

Protect Colorado has raised $10.8 million to push its own ballot proposal, Initiative 108, which would require the government to compensate companies and property owners if their fair-market value is reduced by any new laws or regulations — for instance, if statewide setback regulations prevent oil and gas minerals from being tapped. That would open the door for groups like the Colorado Alliance of Mineral and Royalty Owners to sue the state for billions of dollars in supposed damages for lost property value.

After years of grassroots mobilization to press for increased oil and gas setbacks — and industry pushback — this year could totally reshape the state’s oil and gas regulatory landscape, whether in the courts or at the ballot.

“I’m incredibly concerned with the alarming rate at which oil and gas is encroaching on our communities,” says Ann Lee Foster, a volunteer for Colorado Rising and one of two state-designated representatives for Initiative 97. “The oil and gas industry is trying to scare us from protecting our communities, but we feel this is too important of an issue, and we will not back down.”

Considering the legal challenges he’s facing, Lobe says he’s worried about finishing school. The possibility of jail time scares him, but he’s not willing to take a plea deal. He hopes that at least one juror will be sympathetic to his case and the plight of the Bella Romero community.

“I don’t feel like I’ve committed a crime,” he says. “When these kids come up to me literally telling me they don’t want to die or get sick, I don’t feel like it’s a crime to stand up for them and protect them in a peaceful way.”