Inside fracking initiatives 88 and 89, which Hick had hoped to keep off the ballot

U.S. Representative and fracking critic Jared Polis and pro-fracking Governor John Hickenlooper do not see eye-to-eye on initiatives 88 and 89, two measures that proponents are pushing to get on the November ballot. And yesterday, Hickelooper acknowledged that his attempt to work with a bipartisan coalition to create a compromise that would satisfy both the initiative supporters and opponents has been unsuccessful. As such, he will not be calling a special session to address the issue of fracking or whether rules regarding it belong in the Colorado Constitution.

See also: Inside Initiative 75: Right to local self-government -- and to say no to fracking

In a statement released yesterday, Hickenlooper refers to "a series of expensive and divisive ballot initiatives surrounding oil and gas development in Colorado." This reference is clearly about 88 and 89 -- and would have included Initiative 75, too, had not that campaign withdrawn the proposal a couple of weeks ago.

Initiative 75, devoted to the right to "local self-government," had the potential to be the most controversial ballot measure of all. Created by the Colorado Community Rights Network, it would have given communities the power to stop oil and gas companies from producing within their neighborhoods. But it didn't stop there: Those communities could have banned other businesses, too. COCRN submitted the initiative in January, but it was stuck in the Supreme Court for five months. That gave the campaign little time to collect the 86,000-plus signatures needed to put the proposal on the November ballot.

But COCRN hasn't given up. Proponent Cliff Willmeng wrote a letter to supporters that was posted on the Pagosa Daily Post website. In it, he explained that the campaign plans to promote for the same initiative in 2016. "We're just getting started. We're not going anywhere," Willmeng notes.

As for the other thorns in Hickenlooper's side, initiatives 88 and 89 are supported by Safe Clean Colorado, a grassroots group looking to create stricter legislation around hydraulic fracturing. Representative Jared Polis is a vocal supporter -- and financial backer -- of both initiatives, and his refusal to withdraw them is what ultimately killed the special session. Here's a summary:

Initiative 88, 2,000-foot Oil and Gas setback requirement

Shall there be an amendment to the Colorado constitution concerning a statewide setback requirement for new oil and gas wells, and, in connection therewith, changing existing setback requirements to require any new oil or gas well to be located at least 2,000 feet from the nearest occupied structure; and authorizing a landowner to waive the setback requirement for any structure located on the owner's property?
Current Colorado regulations require oil and gas wells to be 500 feet from a home or occupied building. Outdoor activity areas, like playgrounds, must be at least 350 feet away. For schools, health-care institutions and other high-occupancy buildings, the wells must be at least 1,000 feet away. These requirements can be waived by the surface or building owner. If 88 passes, the only thing that will change is the length of the required setback. The option to waive the requirement will still be there.

According to a 2012 U.S. Bureau of Labor Statistics report, the oil-and-gas industry in Colorado generated around $8.9 billion; opponents argue that this initiative would hamper production. Another possible problem is how the proposed setbacks might make it harder for mineral owners to develop the oil-and-gas resources on their property. In Colorado, surface land and underlying oil-and-gas resources can be owned by two different parties. If the surface owner doesn't waive the requirement, a mineral owner might take the matter to court.

Health concerns associated with contaminated drinking wells are a driving force for this initiative. Supporters of 88 say that expanding the setback helps respond to health and safety concerns that come with rapidly growing production. But protecting property values is also an upside: Drilling increases traffic and noise, and drill sites aren't exactly picturesque.

Initiative #89, Local Government Regulation of Environment
Shall there be an amendment to the Colorado constitution concerning a public right to Colorado's environment, and, in connection therewith, declaring that Colorado's environment is the common property of all Coloradans; specifying that the environment includes clean air, pure water, and natural and scenic values and that state and local governments are trustees of this resource; requiring state and local governments to conserve the environment; and declaring that if state or local laws conflict the more restrictive law or regulation governs?
The goal of 89 is similar to that of Initiative 75: to give local communities the power to create their own laws regarding entities that operate within their borders. The difference is that 75 has language that focuses on giving communities the power to enact laws dealing with health, safety and well-being; 89 is specifically about protecting the environment, for the well-being of all Coloradans.

The proposal would add these words to the Colorado Constitution: "The people of the state of Colorado find and declare that Colorado's environment is the common property of all Coloradans." The initiative goes on to say that state and local governments shall conserve the clean air, pure water, and natural and scenic values for the benefit of all. The most controversial section is the third: "To facilitate the conservation of Colorado's environment, local governments have the power to enact laws, regulations, ordinances, and charter provisions that are more restrictive and protective of the environment than laws or regulations enacted or adopted by the state government." If there is conflict between state and local regulation, 89 proposes that the more protective regulation would govern.

Mara Sheldon, the communications director for Safe Clean Colorado, wants to make it clear that neither initiative would ban fracking. "We are looking into a way to do it that is safe and effective," Sheldon says. "We want to give local communities power to enact stricter regulations that are currently in place at the state level."

Representative Polis released his own statement yesterday in reaction to Hickenlooper's. Both politicians thanked the legislators who came to the table and were open to a legislative solution; both statements agreed that a compromise was not going to happen at this time. But they disagreed as to the next step.

Hickenlooper closed his statement like so: "We continue to believe that the right way to solve complex issues like these is through the legislative process and through transparent rule making."

Here's Polis's conclusion: "Now, as it has become clear that the path to passing a legislative compromise has been obstructed, we must turn to the people of Colorado to solve this problem."

The campaign for both 88 and 89 is well on its way to collecting the needed number of signatures, according to political strategist Rick Ritter. The deadline for signatures is August 4.

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Jamie Swinnerton
Contact: Jamie Swinnerton

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