Colorado Supreme Court Clears Ballot Initiative Aimed at Bolstering Local Control of Oil and Gas Drilling

by Snell & Wilmer
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On June 30, the Colorado Supreme Court issued its opinion In the Matter of the Title, Ballot Title, and Submission Clause for 2013–2014 #89[1] (Initiative 89). In affirming the finding of the state’s Ballot Title Setting Board that Initiative 89 satisfies Colorado’s constitutional single-subject requirement, the state’s high court cleared the initiative for signature collection. 

Proponents of stringent local control of oil and gas drilling in Colorado are advancing several measures intended to ban the use of hydraulic fracturing, or “fracking”, in the production of oil and gas, and have until August 4 to secure the required number of signatures for the initiatives to be included on the November ballot. Among the proposed ballot measures targeting the oil and gas industry are Initiative 88, which would require drilling rigs to be set back 2,000 feet from homes, four times the current state rule; and Initiative 89, which would create a so-called Environmental Bill of Rights. Both initiatives are being vigorously opposed by Coloradans for Responsible Reform, a diverse coalition of business, labor, nonprofit and civic organizations.[2]

The potential impact of these ballot initiatives on Colorado property owners in general, and the oil and gas industry in particular, is significant. Specifically, Initiative 89, if passed, would vest all Coloradans with a public “common property” right to “clean air, pure water and natural scenic values”. This would have the effect of subordinating the rights of private resource owners and users to public control. In his dissenting opinion, Justice Hobbs, joined by Chief Justice Rice, argues that this would “fundamentally change Colorado property law by creating a new constitutional … ‘common property’ right in the ‘environment’ [that] would override existing private and publicly held property rights.”[3]

Initiative 89 would also make state and local governments trustees of natural resources such as oil and gas, requiring state and local governments to conserve mineral and other privately held resources as fiduciaries for the public “common rights” holders. While Initiative 89 offers no elucidation of how such a public trust might be administered, it would almost certainly engender a new acrimony between state and local governments and their citizens who privately hold title or use rights to natural resources.

Finally, Initiative 89 would abolish state preemption of conflicting local environmental laws by authorizing local governments to enact more restrictive laws than those passed by the state legislature, virtually erasing the critical distinction between statutory and home-rule municipalities in matters relating to the environment.

Notes

[1] 2014 CO 66, Supreme Court Case No. 14SA126.

[2] www.cfrr.com.

[3] 2014 CO 66,¶ 29.

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