Ballot Initiative Challenging Oil and Gas Industry Goes to Colorado Supreme Court

An anti-fracking ballot initiative is facing opposition from Colorado mineral-rights owners at the Colorado Supreme Court.

Environmental-justice organization Colorado Rising is behind the statutory ballot initiative that has the oil and gas industry on high alert this election cycle. Initiative 97 calls for 2,500-foot setbacks, or buffer zones, between new oil and gas development and any occupied buildings or "vulnerable areas," which include playgrounds, public open space, any body of water or an area designated by the local government. Federal lands, which make up roughly one-third of the state, are exempt from this initiative.

"We, the people, are taking control over setbacks. That's the purpose of this measure: to make safer setbacks," says Suzanne Spiegel, a representative of the ballot initiative and campaign spokeswoman for Colorado Rising. "Basically, we’re not creating a ceiling with this, we’re creating a floor; a 2,500-foot setback is the minimum."

Neil Ray, president of the Colorado Alliance of Mineral Royalty Owners, petitioned the court in his opening brief filed on Tuesday, March 6, to deny the anti-fracking ballot initiative, claiming it violates election laws and would be misleading to voters. The ballot initiative was approved by the state's Title Board in January and passed a rehearing early last month.

“The Title Board should never have approved proposed initiative 97, as it violates the single-subject and clear title requirements," Ray says in a statement sent to Westword. "In addition, the refusal of the state of Colorado to attach an appropriate fiscal impact statement despite information available violates state statute. Beyond the obvious legal issues with this ill-conceived proposal, it would essentially eliminate natural gas and oil development in Colorado. That translates to the destruction of 140,000 jobs, elimination of $217 billion in economic activity over the next 15 years, and prevention of mineral owners from developing their minerals."

State regulations currently place minimum setback requirements for oil and gas facilities at 350 feet for outdoor-activity areas like playgrounds, 500 feet from occupied buildings, and 1,000 feet from high-occupancy buildings like schools or hospitals.

The appeals process for ballot initiatives is very technical. Judges won't weigh in on the merits of fracking or take a pro-environmental stance. Instead, the court can only focus on whether the Title Board did its job: limiting each initiative to a single subject and ensuring that the titles of those initiatives are fair and not misleading. For instance, a ballot initiative can't say that it's about education funding while sneaking in a line about immigration and then, on the ballot, ask voters about gun reform. The initiative can only be about one subject, and the ballot language, or title, has to briefly reflect the issue in a yes or no question.

Ray filed a 46-page brief outlining his opposition to the ballot initiative. His first major point of contention is that the initiative does more than just create a setback: It fundamentally alters the relationship of the state and local government by giving new powers to municipalities to essentially create no-frack zones, he argues. Under the vulnerable-areas designation, local governments can decide where they don't want fracking and even have the power to increase setbacks beyond 2,500 feet. Ray believes that this change in the state-local government power dynamic merits its own subject and shouldn't belong in the initiative.

But proponents with Colorado Rising say they've been through this before. A similar argument was made in 2016 against a nearly identical ballot initiative calling for 2,500-foot setbacks. Although it prevailed against its opponents in the Colorado Supreme Court, the initiative ultimately failed because it lacked the requisite signatures to make it to the ballot.

"Another group that included [organizers at Colorado Rising] ran very similar language in 2016, and it was almost identical language, and they threw a lot of similar arguments at it [in 2016], and it held up. We’re optimistic this will as well," Spiegel says.

The second major jab at the anti-fracking measure targets economic impact. All initiatives are accompanied by a fiscal note prepared by nonpartisan staff at the Capitol outlining the impact that a new law would have. But Initiative 97's fiscal note lacks any hard numbers because staffers were ultimately unable to pin down how local property taxes would be impacted across the state.

The third major argument Ray makes against the initiative is that the title itself is misleading, for a handful of reasons. Ray claims that the initiative wouldn't just stop new developments, it would also thwart re-entry of an operator into a development, meaning a company couldn't drill a well deeper at an existing site or drill laterally at an existing well site. He also claims that the initiative is misleading because it supposedly eliminates setback waivers by landowners.

According to Spiegel, opponents are trying everything they can to take down the measure before it ever reaches the ballot box. But she's optimistic that given the initiative's success with the courts in 2016, she'll be out gathering signatures again this year.

"They will just throw as many arguments as they can anytime we do anything in the hopes that something will stick, because that's their job," Spiegel says.

It's uncertain how long the appeals process will take. The deadline to submit petition signatures to the Colorado Secretary of State is August 6, and at least 98,492 valid signatures must be submitted in order for the initiative to make it onto the 2018 ballot. Colorado Rising is currently conducting training sessions across the state in an effort to mobilize volunteers for signature-gathering.

Their next community-organizing pit stops are in Greeley and Colorado Springs.