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Structure hampered task force results

Gov. John Hickenlooper might be right in his claim that the “intensity of frustration” about gas and oil development in general, and fracking in particular, has waned since its high level last spring. He might not, though.

If he is, it is not because the conundrum of local and state regulation of the activity has been solved to anyone’s satisfaction. The diminished “energy” surrounding the argument is more likely the result of diminished gas and oil activity in the state, thanks to low prices, as well as the fact that this is not an election year. Alas, the governor may see renewed vigor in the months to come as Coloradans disappointed in the lackluster outcome of the governor’s Task Force on State and Local Regulation of Oil and Gas Operations, known more affectionately as the Oil and Gas Task Force. It need not have been so.

Hickenlooper convened the 21-member panel in August 2014 as part of a bargain to stave off four aggressive ballot initiatives that would have ensconced in Colorado’s Constitution the right of local governments to ban virtually any industrial activity, established 2,000-foot setbacks, distancing gas and oil operations nearly a half-mile from homes, withheld gas revenues from communities that ban gas development, and required all citizen ballot initiatives to include a fiscal note.

The task force held much promise to diffuse the growing conflicts between the industry and local governments, particularly in dense and developing Front Range communities. The group’s charge was to “reach agreement on recommendations for policy or legislation to harmonize state and local regulatory structures as to activities associated with oil and gas operations.” To do so, the task force’s 21 members were asked to address a wide range of contentious issues including setbacks, noise, traffic and dust problems, local rules that are more or less stringent than state regulations, fees, inspections, the interplay between surface owners and the gas industry in negotiating siting and operations, and tiering regulations to urban, suburban and rural communities’ unique character. The task force was to accomplish this over seven meetings and five months – a bold timeline by any standard.

Six representatives from the industry, agriculture and homebuilding interests teamed up with six local government and conservation community members and seven individuals not particularly affiliated either way were appointed to the task force, co-chaired by La Plata County Commissioner Gwen Lachelt, and XTO Energy President Randy Cleveland. The range of stakeholders was well-represented, as was the Western Slope and La Plata County specifically. Durango attorney Jeff Robbins and Jim Fitzgerald, a retired Fort Lewis College sociology professor and Bayfield rancher, served the group as well. But the task force’s structure ultimately curtailed its capacity to capture the two-thirds majority that Hickenlooper required in order to advance recommendations for legislation or policy changes.

Of particular challenge to the group was the state attorney general’s office opinion that, in order to comply with state open meetings and open records laws, no two members of the task force could converse outside of publicly noticed meetings. That is an incredibly strict reading of the law, and one that has yet to be applied to other state bodies – such as the Legislature, for instance. As a practical matter, though, the restriction on any off-camera conversations limited the task force’s ability to reach the consensus it was established to generate. Though the task force produced nine recommendations, the heart of the matter – local authority to regulate land use where gas and oil is concerned – remains unresolved.

“It’s mind-boggling,” Robbins said of the prohibition on extra-meeting get-togethers. “It would have allowed folks with divergent perspectives to, over a cup of coffee, share and explore those perspectives. It’s easy to do that over a cup of coffee or a beer, but not in a public meeting in front of 500 people.”

Robbins crafted a proposal that would have allowed the state government to recognize local governments’ land use authority, within the context of the state’s established authority to pre-empt any local law that conflicts with state powers, and it nearly passed, only be defeated in a final vote. Lachelt supported the proposal, which she says was a victim of a smear campaign.

“It was an elegant, masterful solution for that 20 percent of local governments that want more authority,” Lachelt said. She wrote of her disappointment in a farewell letter to the task force, “It was disheartening to hear task force member Brad Holly (Anadarko Petroleum) state, in the last hour of the last meeting and later, Mike King (Department of Natural Resources Director) that such a recommendation would result in local veto power over oil and gas development.”

Perhaps if the task force had more fluidity to discuss and dispel the fears around such issues, the group could have gotten to the needed two-thirds. Instead, the group advanced recommendations that do not go far enough in addressing the issues that led its formation. One would have the state craft a rule that improves coordination between local governments and industry when planning large-scale operations. That is good, but hardly sufficient to address the conflict.

“A lot can be done through the rulemaking, but the issue is not going to go away about local governments having authority over noise, siting, etc.,” Lachelt said. (Randy Cleveland declined to comment for this column.)

Because of that outstanding concern, Hickenlooper may be sorely disappointed to learn that the frustration index on gas and oil development is still high. He should heed the advice of the Keystone Policy Center, which facilitated the task force, and recommends establishing a permanent body to continue work on the matter. As Keystone President Christine Scanlan wrote to Hickenlooper and legislative leaders, “The task force made great strides working together, and we believe the best chance for progress lies in building on this foundation in a collaborative manner. But it should not end here.”

Megan Graham is a Herald editorial writer and policy analyst. Reach her at meg@durangoherald.com.

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