To fulfill the intention of the bill, the language must be clear in providing the COGCC and local governments the authority to protect public health and safety. The language in the bill should allow the COGCC and local governments the ability to protect health and safety – and any attempt to make this happen should not end in courtroom battles.
During the floor debate, an amendment to the bill added the words “necessary and reasonable” as qualifiers to the requirement of protection of public health, safety, and welfare which places the burden on both the state and local governments to put forward the resources to argue the case, rather than placing the burden on the operator who proposes to drill in close proximity to communities.
However, there is still time to define these qualifiers in a way that will spare the unnecessary burden of defining this language in the courts.
The word “necessary” is an objective term. However, “reasonable” is subjective and depends upon the context in which the situation is being viewed. What is necessary and reasonable to one person is not necessary OR reasonable to another. It’s an invitation for industry to sue over proposed regulations or rules and invites Colorado courts to interpret the intent of the elected representatives. If the word “reasonable” is stricken from the text, or a clear definition is provided that ensures that the decisions are justifiable and based on actions, measures, or prohibitions required to protect health, safety, welfare, and the environment, this ambiguity will be eliminated and should save court battles.
Our State government needs to stop infantilizing local governments. Local governments are able to weigh the cost and benefit to their own communities and to make sound policy decisions. They should not have to justify their decisions in court as “reasonable and necessary.”
If the final amended language of SB181 is not clear, the struggle will continue for communities facing residential-fracking. The health and safety of Colorado Residents is too precious not to be protected.