Attorney General Philip Weiser
cc: Governor Jared Polis, Senator Mike Foote, Senator Steve Fenberg, Representative KC Becker, Representative Yadira Caraveo
July 14, 2019
As the people’s lawyer we ask for your immediate intervention in the proposed rulemaking being undertaken by the COGCC to implement SB 19-181. We think the state’s proposed course of action confused, inarticulate, and unlawful. You ran for office promising to protect the people of Colorado and their air, land, and water. There will never be a better time to demonstrate the sincerity of that declaration than now.
Mr. Jeffrey Robbins, the new, Polis appointed, Director of COGCC, issued what he termed his 15 “objective criteria” on May 16. Basically, these criteria give the green light to all new drilling permits that are not in municipalities or are 1500 feet or more from urban neighborhoods. His criteria are clearly urban centric. The health and safety of rural people and their living environment don’t count for much in his regulatory lexicon. This prescription does not rise to equal treatment under the law.
Moreover, Mr. Robbins does not understand, apparently, that SB 19-181 constitutes a sea change in Colorado oil and gas regulation. No longer are the people preempted from defending their “inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.” (Colo. Constitution, Art. II, Sec 3.)
Instead, with the signing of SB 19-181, the oil industry is preempted by law from drilling, and other infrastructural expansion, if those activities could reasonably result in adverse impacts to the people’s health, safety, and welfare, or adversely affect wildlife and the environments. Mitigation of any adverse impacts must be promulgated without regard to financial cost as long as such mitigation can be shown to be both reasonable and necessary. Without mitigation or if mitigation is not possible then drilling is not permissible. SB 19-181 sets a high bar. Mr. Robbins and the Polis administration seem to be trying to duck under it and in so doing are causing a loss of confidence in this administration’s willingness or ability to deal honestly with the social, physical, and environmental terror so many have endured for too long in the fracking fields of Colorado.
When Mr. Robbins issued his draft criteria, Be the Change submitted 11 pages of suggestions and commentary; other citizen groups commented as well. We were ignored. When the first rulemaking hearing was conducted on June 17 and 18, Be the Change submitted 22 pages critiquing the process Mr. Robbins has adopted, with fairly detailed reminders of what the law required. None of the recommendations have been incorporated. They has simply been ignored as have the many suggestions and critiques from a wide array of grass-roots organizations and individual parties. We have attached Be the Change’s two submissions for your review.
Mr. Robbins approved 40 drilling permits on the day he issued his final 15 objective criteria. Those permits should be recalled since they do not even remotely satisfy the requirements of the law or the hierarchy we’ve laid out below as being consistent with the intent of SB 181. We ask that the hundreds of permits that are in process be warehoused until the following provisions (presented in the order of their importance for the protection of our health, safety, wildlife, and the environment) are adopted.
1. Setbacks: The COGCC’s 1500-foot setback for urban drilling is arbitrary and capricious. It is without scientific foundation. It was a number simply pulled from a hat. See Be the Change’s attached comments on this issue and all the scientific information that was ignored in making this setback decision. A 2012 risk assessment conducted by the Colorado School of Public Health that used air samples close to well pads in Garfield County, Colorado, concluded that residents living in homes less than a half mile away (2640 feet) are at greater risk for negative neurological, respiratory, hematological, and developmental health effects and have a higher cancer risk than those living further away. Oil facility setbacks of up to 1 mile might be invoked by some local governments as reasonable and necessary to protect public health and welfare. Scientific evidence supports such a setback.
2. Cumulative impact analysis of fracking on air, water, and land is required. The COGCC intends to take this issue up in March 2020, maybe. There is no published schedule for the Colorado Department of Public Health and the Environment, CDPHE, to take up rule making even though SB 19-181 assigned the major responsibilities in this area to the CDPHE. Next to setbacks, we think cumulative impact evaluation procedures are the most important public-health rulemaking issues, particularly the impacts on air quality from new drilling. Colorado northern front-range is a noncompliance area for ozone. According to NOAA, we know that at least 55 percent of the VOCs contributing to the formation of ground level ozone come from the fracking fields of Weld County. Ozone is both a chronic and acute health problem–by 2025 it is estimated that there will be more than 32,000 summertime asthma attacks in children under the age of 18 because of ozone smog resulting from oil and gas pollution. Denver has the 12th worst rated air quality in the country. Any new drilling permit must mitigate any further degradation on Front Range air quality. If that can’t be done, then no permit can be issued under SB 19-81.
3. Air monitoring: Continuous air monitoring of all facilities with the potential for major discharges of pollutants and poisons into the atmosphere are required. Yet, this supremely important legal requirement of SB 19-181 is simply being ignored as the COGCC issues new permits under its 15 Objective Criteria. We understand that air monitoring is primarily the responsibility of the Air Quality Control Commission and that it must participate in the rulemaking of SB 19-181. To date it has not participated. In fact according to intelligence gathered by WildEarth Guardians and related to the governor in April, the state is not enforcing the Clean Air Act. It is allowing drilling sites to operate without an air permit for 90 days and longer. The entire Northern Front-Range is a non-compliance zone for ozone; yet inexplicably there is no attempt to curb this illegal activity in the Director’s Objective Criteria.
4. Bonding: Bonding to ensure funds to close old wells is totally inadequate with a limit of $100,000 for all wells owned by one operator. The largest driller in the state has over 8000 wells. Colorado recently paid about $250,000 per well to close a few orphaned wells. (COGCC 2019) Clearly, bonding needs to be greatly increased, and no well permits should be issued until bonding is raised to protect the public purse. We think unless there is serious rulemaking on this issue, the public will end up on the hook for billions of dollars in closing and maintenance costs for old wells. We think any new application for drilling in this state should be contingent on the applicant upgrading its bonding on all existing wells. Any transfer or sale of wells should also condition new bonding adequate to cover eventual well closure and maintenance. The Director’s Objective Criteria ignores the new bonding opportunity.
5. Financial assurance is required by SB 19-181 to protect local governments from inheriting a financial catastrophe. Billions in cleanup costs are at stake if these drillers go belly up. Examination of their financial solvency is a hedge against that occurring. The Director’s Objective Criteria ignore these risks and are therefore once again arbitrary and capricious.
We realize that honest rulemaking will cause delays. But delays are inevitable if the law is to be faithfully implemented, for the changes are from the protection of the industry to the protection of the people and their constitutional rights. Such a course of action will not please the industry, the mineral owners, or some local officials, especially the Weld County Commissioners. But these interests lost the debate when SB 19-181 was under consideration at the legislature. They should not be given a second bite of the apple as the Director’s Objective Criteria seem to intend.
Too, Be the Change estimates that as many as 5000 permits or more have not been acted upon. About 1200 permits have been granted since the first of the year, over 200 since the passage of SB 19-181. Thus, despite the cries of imminent economic collapse if the law is enforced, those cries seem with out foundation—especially if we factor in that the roughly 50,000 wells in Colorado already pumping to high heaven will continue to do so. SB 19-181 was signed into law on April 16 of this year. It is time strong direction was given from a legal perspective that it be enforced faithfully and fully.
Additionally some local governments seem to think that SB 19-181 does not apply to them. That it is a state issue and they are free to do as they did before its passage. We think it important that you disabuse them of this fanciful thinking and remind them SB 19-181 is state law and applies to all equally.
Respectfully submitted by Phillip Doe, Environmental Director, for Be the Change. Questions can be addressed to him at firstname.lastname@example.org
Be the Change
Citizens for Huerfano County
Call to Action
Damascus Citizens Alliance
Northern Colorado Community Rights
Weld Air and Water
MindDrive Legal Services
What the Frack?! Arapahoe.
Law Offices of Katherine L.T. Merlin
and Colorado Environmental Advocates
Clean Energy Lakewood
Adams County Communities for Drilling Accountability NOW.
Protects Our Loveland
Wall of Women Colorado
Kids Against Fracking
Colorado Coalition for a Livable Climate
Fort Collins Sustainability Group
The Lookout Alliance
Mothers Out Front
Food and Water Watch