Don’t lose opportunity to leave OPEC behind

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Given the potential benefits of renewed oil and gas development to our local economy, it’s not surprising that the Sentinel would oppose a statewide ban on hydraulic fracturing (“fracking”), aptly warning “Don’t lose opportunity to leave OPEC behind”.  However, contrary to its editorial’s unqualified concluding assertion, more-localized fracking bans are decidedly not “the opposite of rational public policy”.

C.R.S. § 34-60-102(1)(a)(I) states Colorado’s “rational public policy”:  to “Foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, . . .”.

C.R.S. § 34-60-102(2) presumes a concurrent and coherent national regulatory regime, in which Colorado’s Oil and Gas Conservation Commission (“COGCC”) is “empowered to exercise such powers and authorities as may be delegated to it by the laws or regulations of the United States, . . .”.

However, since 2005 – when Congress codified the “Halliburton Exceptions” to the Safe Drinking Water and Clean Water Acts—regulation of “fracking” has been incoherent (because the EPA and the COGCC are legally barred from regulating “fracking wells” as “underground injection wells” as Congress intended), and irrational (because both are also legally precluded from regulating toxic “fracking fluids” as “pollutants”).

Thus, even if “Colorado has some of the best” oil and gas regulations, they remain clearly constrained by dubious policies.  Consequently, it is quite understandable that potentially affected communities would seek to exercise their presumably inherent powers and duties for the “protection of public health, safety, and welfare”.

C.R.S. § 34-60-127(1)(c) imposes a “reasonable and necessary” standard on developers’ intrusion on surface rights.  The Sentinel should opine that communities have the right to decide what is locally “reasonable”, while the industry must bear the burden of proving what is really “necessary”.

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