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Amy Mall’s Blog

Colorado takes step in the right direction toward local government authority, but still on the wrong path

Amy Mall

Posted March 8, 2013 in Health and the Environment

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In past blogs, I as well as colleagues at NRDC have expressed our strong support for the authority of local governments to protect their residents from the risks of fracking. I also blogged about my extreme disappointment that the State of Colorado was opposed to local government authority and was even suing a local government. NRDC's community defense project is working to help local governments that want to use their local authority to govern the siting and other activities related to fracking in their communities. 

I am pleased to report that recently Colorado Governor Hickenlooper has stepped back from complete opposition to local government authority. Earlier this week Governor Hickenlooper said that he is open to suggestions for allowing a city to ban access to minerals within city limits--but he said that mineral owners would have to be compensated because a ban on fracking would be equivalent to what's called a "taking.” Under the law, a taking can occur when a government regulation has substantially devalued a property.

While it's certainly a positive step that the Governor is open to local government authority, he should not jump to any conclusions that every local fracking regulation would constitute a taking and require some sort of financial compensation. it is nearly impossible to say in advance whether a municipal ban will or will not effect a taking under the U.S. Constitution.

Takings law is notoriously murky, and the question of whether a municipal ban will or will not effect a taking is far from clear cut. There is no need to make a compensation plan a condition of state support for local governments trying to protect their citizens. Every case is unique, and will depend on the specific facts.

Communities across the country want to put rules in place to protect themselves from the long list of threats presented by fracking--to air, ground water, surface water, quality of life, property values, landscapes, peace and quiet, and more. Neither the federal government nor state governments have strong enough rules in place--or enforcement--to make communities feel safe. Whether it is restricting truck traffic, noise nuisances, odors, pollution, or toxic waste, or whether it is requiring water testing, air testing, or other protective measures, communities are right to put safeguards in place.

As my colleague Kate Sinding has blogged: "Decisions over land use and community character have long been the province of local governments in the United States.  Over three quarters of a century ago, our Supreme Court held that communities have the right to enact local laws to protect 'public health, safety, morals, and general welfare.'"

Governor Hickenlooper should fully support the rights of local governments.

On another Colorado note, it was great to see that Governor Hickenlooper came out in support of protecting the Thompson Divide in western Colorado from industrial oil and gas development. He said: "That’s a beautiful landscape that shouldn’t be developed. I don’t know what the BLM was thinking when they leased that land for two bucks an acre or what they thought the benefit was." The Governor is right on this issue. The Thompson Divide is a stunning jewel of Colorado--beautiful landscapes, important water sources and wildlife habitat, roadless forests, and hardworking communities. The BLM is leasing too many places across the country without doing the proper environmental analysis and balancing all the uses of the lands at stake. More on that soon.

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Comments

Michael BerndtsonMar 8 2013 03:00 PM

Maybe Hickenlooper got the idea of NOT drilling Thompson Divide during the Aspen Ideas Festival. Rigs and frac tanks visible from State Road 82 may not mesh well with thoughts on sustainability and other things.

Ruth RogersMar 10 2013 11:19 PM

HOPE THIS WORKS. THIS MAY HELP. From the article:
" I am pleased to report that recently Colorado Governor Hickenlooper has stepped back from complete opposition to local government authority. Earlier this week Governor Hickenlooper said that he is open to suggestions for allowing a city to ban access to minerals within city limits--but he said that mineral owners would have to be compensated because a ban on fracking would be equivalent to what's called a "taking.” Under the law, a taking can occur when a government regulation has substantially devalued a property."

Michael BerndtsonMar 11 2013 03:19 PM

Ruth,
Wow! Is Hickenlooper basically threatening to bankrupt a municipality with that statement? So assuming there's X and Y amount of oil and gas under a city, with a potential market rate of A and B, the city owes the driller $Z = (X*A + Y*B)*(recoverability) - (royalties - capital - O&M)?

This is where the whole subsurface mineral rights thing needs to be re-evaluated. Since minerals are everything except plants and animals then a city should go after every drop of groundwater used for or impacted by drilling.

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