In 2014, Gov. John Hickenlooper won the fracking debate.
A supporter of the oil and gas industry, and not one to fear the effects of the controversial extraction technique known as hydraulic fracturing or "fracking," Hickenlooper wanted to avoid letting the state's voters decide on the industry's fate.
At the time, U.S. Rep Jared Polis, D-Boulder, supported two ballot initiatives that would have created bigger setbacks for oil and gas activities and given local communities, rather than state government, control of the industry. The industry itself supported another couple of initiatives, including one that would have withheld state oil and gas revenues from communities that banned fracking.
But both sides agreed to keep their initiatives off the ballot when Hickenlooper announced he would create a commission to act as a peacekeeper, making recommendations to the state legislature on how to resolve land use concerns.
That compromise hasn't been a lasting one. Grassroots groups opposed to fracking were never happy with the deal, and now one group is trying to petition two initiatives onto the November ballot.
Tricia Olson, executive director of Coloradans Resisting Extreme Energy Development (CREED), says both of the group's proposed initiatives would amend the state constitution. They are:
1) Local Government Control of Oil and Gas Development
This initiative would allow counties, cities and towns to decide where it is appropriate to have oil and gas development — if at all. The law, which pertains not only to fracking, but all oil and gas activities, would allow an all-out ban on the practice.
2) Mandatory Setback From Oil and Gas Development
This initiative would create a mandatory, statewide setback for all new oil and gas activities. The setback would be at least 2,500 feet from any occupied structure (homes, schools, etc.) or "area of special concern," which includes shared areas like public parks and playgrounds, amphitheaters, sports fields and open spaces, as well as any water source. Currently, Colorado's Oil and Gas Conservation Commission only requires that new oil and gas wells to be at least 500 feet from homes and buildings.
Olson says she won't share her group's polling data, but she has reason to believe the initiatives stand a chance with voters.
"If we didn't [think so] we wouldn't be running them," she says. "If it's not worth it, you just don't do it."
But there is, she says, still a lot of work to be done. For starters, her group and its allies will need to collect 98,492 valid petition signatures for each initiative to even get it on the ballot. The signatures are due August 8, and the group is just getting started.
Should CREED clear that hurdle, Olson, who previously worked with the Boulder County Democratic Party, says she expects a well-funded opposition campaign from the industry. That would add to the PR work already being done by pro-industry groups, which have plastered Colorado with pro-fracking ads for years.
The issue committee Protecting Colorado's Environment, Economy and Energy Independence, which was created to support initiatives for "responsible oil and gas development" and oppose initiatives "attempting to limit or ban oil and gas development," had received more than $2.9 million in contributions as of the end of the year, with nearly $1.3 million of it remaining in its coffers. (The Independent sent an email through the group's website, protectcolorado.com, seeking comment but did not hear back by our deadline.)
Olson says her group is still in the beginning phases of putting together a campaign. It has set up an issue committee to support the initiatives, Yes for Health and Safety Over Fracking. The committee has yet to make a financial report with the Colorado Secretary of State's Office, but Olson says it has raised a lot less money than the industry group — certainly, she says, less than $1 million. The campaign is largely a volunteer effort.
The initiatives come at a time when two cities are in the Colorado Supreme Court defending their restrictions on fracking. Longmont voters banned fracking in 2012, while Fort Collins has a five-year moratorium. Both cities were sued by the Colorado Oil and Gas Association.
"Right now various cities have been sued whenever they have tried to do something that seemed protective of their citizens," Olson says. "They're told they can do very little."
Among CREED's supporters is Food & Water Watch. The nonprofit, which fights for "healthy food and clean water for all," claims on its website that it was "the first national organization to call for an all-out ban on fracking." Lauren Petrie, the Rocky Mountain region director for the nonprofit, comes from New York, where fracking was banned in December 2014. She predicts that if the Colorado Supreme Court rules against Longmont and Fort Collins, it will "add fuel to the fire," and boost the campaign for the two initiatives.
But should the initiatives pass, Olson says she expects the new state laws will end up in the courts just as the local ones have.
"I expect them to be challenged, yes," she says. "Power does not give up lightly."
One of the strongest arguments from the oil and gas industry — which, by the way, claims to have reduced pollution through natural gas production, while producing jobs and money for the state — is that restricting access to their resources is "taking" someone else's property without just compensation.
But Sam Schabacker, Associate Organizing Director for Food and Water Watch, points to a 2015 paper by Kevin J. Lynch at the University of Denver Sturm College of Law that argues that oil and gas companies will have trouble winning "takings" cases because, among other reasons, local governments have long had a right to "prevent a nuisance."
Schabacker adds that fracking is simply a method of reaching oil and gas, thus a fracking ban isn't akin to banning all access (though the industry may argue otherwise since fracking reaches resources buried deep in the Earth). He uses the analogy of fishing.
"Go fishing," he says. "We're saying you can't go fishing with dynamite."