Colorado’s split estate, where a landowner does not possess rights to the minerals below the surface, unfurls an inherent conflict when land use and subsurface activities do not mesh. As a state rich in natural gas, Colorado has for decades wrestled with the conflict and attempted to establish some balance between the priority of mineral rights holders to access their property and that of surface landowners to enjoy theirs as well. This has never been an easy task, and it has become less so as gas and oil development migrated to the Front Range and into high-density residential communities. A series of proposed ballot initiatives would empower counties and municipalities to regulate and prohibit industrial activities, tipping the power balance heavily in communities’ favor. While the sentiment to do so is understandable, it is the wrong approach for addressing the challenge.
Advocates for expanded community rights have filed proposed ballot initiatives that would amend the state Constitution to establish environmental health as a basic, inalienable right of communities – and empower them to make laws protecting that health; to allow communities to ban industrial activity; and to allow for increased setbacks – as far as 4,000 feet – between residential areas and gas and oil activity. This last amendment, critics say, would effectively eliminate the industry’s ability to operate in the state.
Each of these initiatives and others proposed for the November ballot are born of a frustration over local governments’ relative lack of power with respect to regulating gas and oil activity. The state, through the Colorado Oil and Gas Conservation Commission, holds that authority though regulating land use falls to counties. Still, the inherent conflicts that arise between gas and oil activity and all other uses are nuanced according to local factors that must at least be considered – and mitigated to the extent possible.
Frustration has been simmering for several years among municipalities, counties and residents over the power imbalance and a similar suite of ballot initiatives nearly appeared on the 2014 ballot, but were pulled in exchange for Gov. John Hickenlooper’s forming a task force to recommend solutions to the growing conflict between state and local authority over gas and oil activity. The task force recommendations – which required a two-thirds majority to advance – did not go far enough for many local governments and community rights advocates, and the frustration they felt in 2014 has now amplified.
The urge to establish local authority via ballot initiative makes sense in the context that has built to this point. It is not the right answer, however, to strike the difficult but necessary balance between state and local control over an industry that has impacts on the communities where it occurs. Instead of turning the regulatory environment on its head, and doing so in the state Constitution, there must be a renewed effort to engage and empower local governments in determining how gas and oil activity occurs in their communities, and how negative effects are avoided or corrected. There are examples of where this has been done well, and La Plata County is among them. The process will not be swift or without division, but the results have greater potential to address the challenges of regulating industrial activity than would a suite of restrictive and far-reaching amendments to the state Constitution.
