A Colorado Ballot Measure Could Make it Nearly Impossible to Ban Fracking

By John Light, a reporter and digital producer for the Moyers team. His work has appeared at The Atlantic, Grist, Mother Jones, Salon, Slate, Vox and Al Jazeera, and has been broadcast on Public Radio International. Follow him on Twitter at @LightTweeting. Originally published at Moyers & Company

The Colorado oil and gas industry is poised to strike a devastating blow against anti-fracking activists Tuesday. Enactment of Amendment 71, a statewide ballot initiative campaign that’s backed by the industry, will make it, in the words of the Denver Post’s editorial board, “nearly impossible” for Colorado voters to amend their state constitution to allow for local fracking bans — or, for that matter, anything else.

It’s a story worth telling in some detail, because it vividly illustrates the many obstacles well-connected and well-funded special interests can put in the way of citizens trying to oppose them. The latest battle in a multi-year campaign by a network of pro-fossil fuel groups to defend the fracking industry against local opponents, Amendment 71 would require 2 percent of registered voters in each of Colorado’s 35 state Senate districts to sign petitions for any future initiative before it could be put on the ballot. Right now, anyone who wishes to amend the state constitution must collect signatures from 5 percent of the number of voters who voted for secretary of state in the last election.

That threshold is still not always easy for grass-roots groups to meet: Two green priorities — an amendment allowing for local bans on fracking and an amendment requiring fracking operations to be at least a half mile from homes or schools — failed to make the cut for this year’s ballot, according to the secretary of state. Disappointed environmentalists attribute that to a lack of time and resources, but also to a very well-financed campaign by the oil and gas industry. A report released by the watchdog group Public Citizen estimated that fossil fuel interests outspent anti-fracking activists by a factor of 24-to-1.

Nonetheless, greens feel ballot measures are among the best options in their political toolbox in a state where well-heeled oil and gas interests have managed to convince both Democratic and Republican politicians that what’s good for their industry is good for the state’s economy.

“The political system in Colorado is really aligned with the oil and gas industry,” said Suzanne Spiegel, an organizer with Frack Free Colorado. She described the state’s Democratic governor, John Hickenlooper, as “incredibly supportive” of fossil fuel interests. A former oil and gas geologist, Hickenlooper touts the industry as crucial to the state economy. He once claimed to have joined Halliburton executives in drinking one of the company’s fracking fluids to demonstrate its safety. The governor’s office did not respond to a request for comment on this article.

For groups like Spiegel’s, ballot initiatives provide an alternative to a political system they see as in the pocket of the fracking industry. “One of the great things about Colorado is that we currently have access to this channel of direct democracy,” Spiegel said. But, she added, a victory for Amendment 71 “would all but eliminate it.”

Both liberal and conservative groups that rely on grass-roots organizing have united to oppose the measure. Oil and gas interests, meanwhile, have thrown in millions of dollars from their sophisticated political operations to make sure the amendment passes on Tuesday.

Fossil Fuels’ Grip on Colorado

The origins of the current political fight date back 2012, when the top two Colorado oil and gas companies, Anadarko and Noble Energy, geared up to challenge local opposition to fracking. Four Colorado towns were moving to ban fracking or place a moratorium on it. Longmont, Colorado had already succeeded in becoming the first town to do so earlier that year.

The fracking boom had hit the state several years before, and some Coloradans were alarmed by the speed at which wells seemed to be multiplying. According to the federal Energy Information Administration, natural gas production doubled in the state between 2001 and 2015, and oil production doubled between 2012 and 2014. With that came a flood of political donations from the oil and gas industry to state and local officials.

By 2014, when environmentalists began collecting signatures for two anti-fracking amendments (neither of which ultimately made it onto the ballot), the industry was fully mobilized. In addition to offering two pro-fracking ballot measures of their own, oil and gas interests set up a series of benignly named advocacy groups. Among these were Protecting Colorado’s Environment, Economy, and Energy Independence — often referred to as simply “Protect Colorado” — and Coloradans for Responsible Energy Development (CRED).

According to IRS filings (posted online here and here by Greenpeace), these two spent $27 million to promote the industry that year. A political strategist working with the groups, Mark Truax, attended a September 2015 meeting of the Interstate Oil and Gas Compact Commission (IOGCC), where industry executives, lobbyists and regulators from around the US gather to discuss strategy. Truax outlined the political groups’ efforts on behalf of the pro-fracking measures, including a sophisticated voter outreach organization, according to a transcript of the meeting published in Boulder Weekly and made from a recording obtained by Greenpeace researcher Jesse Coleman.

On the recording, Truax touted the way the pro-oil and gas groups had targeted 3.9 million voters by demographic to win their sympathy toward fracking. He explained how the groups had built coalitions among businesses in the state and how the industry focused on electing pro-oil and gas city council members.

Industry representatives also worked closely with the state regulator, the Colorado Oil and Gas Conservation Commission. The group’s director, Matt Lepore, was present at the IOGCC meeting where Truax discussed strategy, and emails obtained by Greenpeace’s Coleman through a Freedom of Information Act request show that Lepore and other regulatory officials met with CRED as the group was developing one of its outreach campaigns.

“As a public agency, we make ourselves available to any interested party that wants to learn more — or ask about specific issues — related to the COGCC’s work,” said Todd Hartman, a spokesperson for the Colorado Oil and Gas Conservation Commission, in a statement to BillMoyers.com. “As you might expect, we’d push back very hard” on the idea that the agency coordinates on communications efforts with the industry, he said, adding that COGCC meets monthly with a coalition of environmental groups.

Academic Dispute

To succeed, the oil and gas industry had to maintain the status quo. And in 2014, they did: No new towns passed fracking bans, and, as part of a compromise with Hickenlooper, environmentalists agreed to end their campaign to put anti-fracking ballot measures on the statewide ballot. As part of the compromise, however, Hickenlooper convened a task force to study ways in which Coloradans could have more input on fracking in their communities. Initially, fracking opponents were hopeful. “The governor’s announcement of the Oil and Gas Task Force is the first step forward in solving the problem of fracking occurring anywhere and everywhere,” said Rep. Jared Polis, a Democrat whose congressional district includes Boulder.

But oil and gas interests already had been at work, commissioning researchers at the Leeds School of Business at the University of Colorado Boulder to work on a series of studies that supported industry talking points. One study, underwritten by an industry-funded group called the Common Sense Policy Roundtable, along with two other groups not affiliated with the industry, declared that a moratorium on fracking would hurt the state’s economy. Another, commissioned and funded by the American Petroleum Institute, demonstrated that fracking had a positive economic impact on Colorado communities.

The reports got coverage in The Denver Post and The Colorado Springs Gazette, neither of which disclosed that the Common Sense Policy Roundtable was an industry group. When the relationship between the Leeds School researchers and the industry groups came to light, Bronson Hilliard, a spokesperson for the school at the time, told High Country Newsthat the researchers didn’t know about the group’s funding. “CU-Boulder policy researchers are under no obligation to understand industry organizations’ financial ties or to report them,” he wrote in a statement.

But emails between researchers and industry employees, obtained by Greenpeace and Boulder Weekly, appear to show that the industry weighed in as the study was being written, requesting revisions. “I hope this new version is in line with what you envisioned… We look forward to further feedback and comments,” one CU-Boulder researcher said in an email sharing his findings with an API adviser. The emails also suggest a hope that the research would play a role in influencing the governor’s task force. The task force’s legislative recommendations ultimately did little for activists who were seeking greater control of fracking in their own communities.

The End of Local Control

Though the ballot measures that anti-fracking activists championed in 2014 and the governor’s subsequent task force ultimately failed, towns were having some success banning fracking. By 2015, five Colorado communities as well as Boulder County had voted to implement local bans or moratoria on drilling. These sorts of bans represent a rare area of agreement between Republican presidential nominee Donald Trump and Democratic presidential nominee Hillary Clinton: Both have spoken in favor of “local control” — the idea that communities should be able to decide whether or not to approve fracking.

“I’m in favor of fracking, but I think that voters should have a big say in it,” Trump told Denver television station KUSA. “I mean, there’s some areas, maybe, they don’t want to have fracking. And I think if the voters are voting for it, that’s up to them.” Clinton has made similar statements, and that panicked oil and gas lobbyists, because the idea of local control has been so potent. In addition to the Colorado communities, New York and Maryland have both banned fracking, as have five counties in California.

But the Colorado communities’ bans were overturned this May when the state’s Supreme Court ruled that Colorado law does not allow for “local control.”

So this year, anti-fracking activists wanted to put a new cause on the ballot: A “local control” amendment to the state constitution that would allow towns to ban fracking. National groups such as 350.org, Food and Water Watch and Greenpeace lined up behind local groups’ efforts to put the measure on the ballot, along with one that would have required fracking operations to be roughly half a mile from homes.

Ultimately, however, Secretary of State Wayne Williams, a Republican, ruled that activists did not gather enough signatures to put these measures on the ballot. Activists handed in about 107,000 signatures — more than the 98,492 required. But Williams did not believe there were enough legitimate signatures to clear the bar. Advocates for the amendments decided they didn’t have the resources to challenge that decision.

The industry had prepared for a long and hard fight, but by September, it was all over. So Noble Energy and Anadarko decided instead to pour their money into another initiative — one that would likely make it so they wouldn’t be fighting new activist ballot initiatives every year going forward.

“Raise the Bar”

Amendment 71 first surfaced as a campaign by business leaders and politicians called “Raise the Bar.” But the idea had its genesis at least a year ago. Greenpeace’s tapes of the September 2015 IOGCC meeting reveal a discussion about an initiative to change “the actual ballot process itself.” Mark Truax, the political strategist working with the oil- and gas-backed industry groups CRED and Protect Colorado, told the meeting participants, “We are in the process of evaluating that right now.”

Coloradans have long complained their ballot is cluttered with proposed amendments and referenda that the average citizen cannot be expected to know anything about. The number of measures on the Colorado ballot is often quite large, creating a genuine frustration among voters.

“This is too much,” Seth Masket, a University of Denver political science professor and commentator, wrote in Pacific Standardlast month, describing his four-page ballot that included 15 state and local initiatives. “There are some legitimately interesting ones, including an increase in the minimum wage, the creation of a new public health care system, and switching from a closed caucus to an open primary in presidential nominations. But is the ballot really the right place to hammer these things out? Do I and other Colorado voters have the necessary expertise to decide whether a substantial restructure of our public-health system will be in the state’s best interests?”

To bolster its argument for Amendment 71, Protect Colorado, one of the industry groups, has noted that most signatures on the recent anti-fracking ballot initiatives did not come from the regions where fracking is most intense, and argued that more communities should be involved in deciding what goes on the ballot.

But the big money behind the initiative is raising alarms beyond the environmental community. The Denver Post editorial board — a body that often writes in support of the oil and gas industry — recently published an editorial opposing Amendment 71 for that very reason. “The campaign and the cause are the antithesis of grass roots,” The Post wrote. “The real muscle behind Raise the Bar is coming from the oil and gas industry.”

“They have a really good shot of winning this thing, honestly,” said Frack Free Colorado’s Spiegel. “Their marketing is great around it. ‘Don’t make it so easy to change the constitution’ — people will get behind that if they don’t know where it’s coming from or why.”

Activists are already planning to run another ballot measure campaign to try and legalize fracking bans in 2018. “But if 71 gets adopted,” said Spiegel, “our job is going to be really hard.”

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  1. 3.14e-9

    What about Hillary’s statement that she doesn’t support fracking “when any locality or any state is against it.” If the state says localities can’t ban it, then what? And what does she mean by the “locality?” City and county governments, which are easily bought? The people? How’s that going to work?

    Her campaign policy advisers were in contortions coming up with a response to Bernie’s ad saying he’d ban fracking. They couldn’t figure out how to say she wasn’t against it without sounding like … well, like she wasn’t against it. They thought of getting Jared Polis or the League of Conservation Voters to “whack him” (Sanders) for her. Neither would touch it. Because of that, they decided against a plan to get the Denver Post to do a hit job editorial and in the end, they just dropped the whole thing.


    1. pretzelattack

      at least in their judgement, the denver post editorial board would have run the hit job if they had been asked to. i so appreciate our independent press, and clinton’s responsible position to fight climate change by promoting more fossil fuel extraction

    2. UserFriendly

      This is why voting for her to stop climate change is pointless. Fracking is not green. It is not a transition fuel. It is just a way to keep polluting and making a talking point.

      1. 3.14e-9

        That’s what struck me about the whole exchange. They didn’t seem to be as concerned about the actual policy, only how they could frame a statement to get her elected and who they could use.

        There was another long thread about how she should react to Obama’s decision to reject the Keystone Pipeline. Again, very little discussion about the environmental implications, but how to make her look as strong as Bernie on climate change without pissing off the unions and her pro-fracking political allies.

    3. oh

      Jared Polis is a fraud. He opposed fracking until they exempted his neighborhood. Now he doesn’t do anything to ban it.

      Already, ballot measures are unfairly thrown out by claiming signatures, addresses are not valid, etc. Now the crooks want to ban amendments that are the only avenue for the public to oppose the oligarchs. They already run false ads even when ballot measures make it to the ballot – see Colorado Health Care for an example. They tried ever so hard to bring down the measure to make pot legal, Luckily, they failed.

  2. blert

    Fracking broke the back of OPEC and caused global energy prices to collapse.

    Just tragic.

    It has also virtually bankrupted the coal industry, doing far more damage than anything the EPA can come up with.

    Fracking occurs so deep in the earth that local water supplies are not affected.

    Admittedly, they sure due suck down a lot of water — but not so much that the economy notices.

    1. lyman alpha blob

      I guess all those reports we’ve read about fracking companies and their junk bond status were just vicious rumors and OPEC is crushed forever.

      I guess even though the fracked wells dry up extremely quickly compared to more traditional wells, fracking is not just a short term boom but will last forever. I guess those nasty coal companies will just all quietly go out of business forever too and they’d never just start mining again once the fracking boom is over and it becomes profitable to mine coal again.

      I guess once the filthy contaminated water is pumped deeply underground it could never contaminate anything again. It’s not like water is fluid or anything.

      I guess those films with people’s tap water starting on fire were just my imagination.

      I guess all those measurements that show severely depleted aquifers at record lows were because scientists don’t know how to use a yardstick.

      Thanks for clearing all that up for us.

    2. oh

      Fracking occurs so deep in the earth that local water supplies are not affected.

      Oh really? Inability to seal off aquifers from the bore hole is the #1 reason that local water supplies get affected.

    3. Russell

      I noticed when in the commercials in Not Conscious the sealer ring was simply omitted.
      That ring around the pipe that is supposed to be placed below the aquifer is omitted because it doesn’t work.
      Crack the rocks under pressure & that ring is useless. The fiction could not even be upheld.
      Methane was never really accounted for in greenhouse gasses models. Now the Antarctic ice sheets are near falling in the ocean, sliding off the land as soon as 2020.
      The fracking craze, well, we need to call it over for that reason as much as the water from the underground rivers that does get depleted as well as wells punch into it. Just as water runs out, so does the gas.
      And the politics have not changed at all since the Saudis could humiliate the US President and do all the damage of the Empire’s Economic Warfare plus make sure the Petrodollar was killed with every other actual person in Yemen.

      1. lyman alpha blob

        RE: the Saudis

        Who knows what’s going on behind the scenes but if I had to hazard a guess I’d say that rather than breaking the back of OPEC with fracking, the US was in collusion with the Saudis in an attempt to break the back of the Russians and the other petro-nations in their sphere like Venezuela.

    4. MG

      The last 2 parts of this are false including the long-term effects of fracking wells including what happens when the concrete well-casings start to fail in 20-25 years. The depth of all wells too is certainly not several thousand feet or more down either. Some wells are quite shallow depending upon local conditions.

      The water isn’t noticed because of how we treat and price water today but in many locations in the future that is likely not going to be the case.

    5. redleg

      Fracking withdraws large volumes of fresh water and discharges large volumes of petroleum contaminated water and brine. This happens whether the fracked will is 50 meters or 15000 meters deep.
      Fracking should be fought based on the volume of fresh water used (although unpermitted appropriation of water was rampant when I was doing work there) and on the wastewater that comes out. Fracking doesn’t even need to be brought up.

      To control fracking:
      Enforce water appropriation permits/rights, which is State control usually delegated down to LGU for enforcement, and
      Stormwater and wastewater discharge permit enforcement, which again is State level delegated to LGU.
      In some places the Corps of Engineers requires permits too, and based on my experience they have routinely denied those permits for fracking even when it made sense.

  3. OIlDusk

    We all have the ability to ban fracking. It’s really quite simple.

    All you have to do is purchase the mineral rights of the property where the fracking would occur. if the property has already been leased, then purchase those lease rights. I assure you that for a fair price the oil and gas owners of those assets will sell them to you. At that point, you can terminate all fracking operations on that property.

    Naturally, you’ll face the financial losses associated with your unwillingness to allow fracking and that seems more than fair. At least these sincere actions would confirm that you are honestly and deeply committed to your beliefs about the dire consequences of this form of oil and gas production and are willing to suffer financial losses for those beliefs.

    That sounds fair to me. Simply vote with your pocket book and you can do whatever you like.

    To vote through a ballot process with a bunch of voters that don’t understand the science and the issues involved or have any concern for the parties that will suffer losses seems like the lowest form of misappropriation.

    1. FluffytheObeseCat

      You make it sound so simple. But you must know that if environmental orgs began to make competitive bids, the shale oil industry would set up a manipulative hue and cry. Claiming that the very act of bidding against them in open auctions was somehow an offense against America, the sanctity of our “way of life” etc. (And I say this as someone who is not particularly anti-fracking at this point in time. I want natty gas to completely destroy the capability of coal to regain market share in electricity production. It will take a few more years before mothballed coal plants are sold off, torn apart for scrap value, and the like.)

      The frackers aggressive, venomous over-reaction when faced with a minor effort to stem their activity in Utah 5 years ago was something to behold: http://www.uuworld.org/articles/environmental-activism-conviction. In this instance, an environmental activist was subject to prosecutorial overreach reminiscent of that last seen when local political appointees colluded with mining companies, and union activists like Joe Hill were legally murdered, 100 years ago. The malign misuse of local government for the private interests of the powerful is damned near identical in style and scope, despite a century gone by.

    2. pretzelattack

      we’re all going to suffer losses, in order for the fossil fuel extraction industries to continue to profit. that sounds like the misappropriation you were referring to. “a bunch of voters that don’t understand the science” sounds like hillary clinton’s “deplorables”, and in any case private individuals acting privately are not going to be able to address the increasingly urgent problems caused by global warming.

    3. lyle

      to boot if a community ban were to stick it is not clear that under the 5th amendment it could not be considered a taking of property rights by the government requiring payment. After all the main reason fracking is so large in the US is that property owners get essentially free money for letting the company frack. Further most poorer local communities look at oil and gas production as an easy way to get more tax revenues. Now of course there can be busts so that it is best to spend the taxes on buildings not operations (so downturns can be handled easier).

  4. Knifecatcher

    I could be dead wrong but I expect amendment 71 to fail, along with amendment 69 (ColoradoCare). The pro-71 message here in CO has tried to play on rural resentment vs the Denver / Boulder population centers, but I don’t think it’s working.

    The general sentiment seems to be that if the politicians were representing the public interest we wouldn’t need the ballot led amendment process. Good luck selling that message. I’ve seen few if any pro-71 signs around.

    Oh – and a fun fact. If the new Amendment 71 rules were in place it wouldn’t have made it onto the ballot. They didn’t meet the criteria they’ve proposed for future amendments.

  5. tegnost

    To vote through a ballot process with a bunch of voters that don’t understand the science
    …wait a sec…

    …to vote through a process with a bunch of voters who don’t understand why they should listen to biased industry funded “science” rigged so that banksters don’t suffer any losses seems the lowest form of stealing from the oligarchy and entrenched interests.

    there, fixed it for you, no,no, don’t thank me, it was super easy!

  6. TheCatSaid

    On the recording, Truax touted the way the pro-oil and gas groups had targeted 3.9 million voters by demographic to win their sympathy toward fracking. He explained how the groups had built coalitions among businesses in the state and how the industry focused on electing pro-oil and gas city council members.

    This is a point highlighted by Bev Harris in the Fraction Magic Video and Reports. Much corruption is carried out at the local levels–including election fraud–for exactly this reason. This is how she uncovered the range of election fraud methods used, in combinations unique to local areas.

    [Note–ominously, the http://www.blackboxvoting.org website is down. They have experienced attacks to their site in the past–hopefully it will be back up soon. For this reason I’ve liked to another website’s summary of the first of the 6 reports.]

  7. Propertius

    I find the Colorado Supreme Court ruling to be a little odd, given the plain language of Article 20 of the Colorado Constitution:

    The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.

    In Colorado, municipal ordinances of home rule cities are supposed to supersede state law. That would seem to give municipalities the right to ban fracking (or pretty much anything else) within their borders.

    While I voted against 71, I have to admit that the ballot initiative process here in Colorado is really out of control and has been for decades. It has led to horrors like initiative 2 in 1992 (prohibiting the granting of protected civil rights status to gays and overturning antidiscrimination laws in Denver, Boulder, and other municipalities), after an incredibly deceptive advertising campaign which managed to convince many voters that the meaning of the amendment was exactly the opposite of its actual effect (I know at least one person who voted for that initiative in the mistaken belief that banned discrimination based the “no special rights” advertising campaign).

    It also led to the “perfect storm” of the so-called “Taxpayer Bill of Rights (TABOR – the Colorado equivalent of California’s Prop 13) and an amendment requiring the state to increase funding for K-12 education every year (regardless of revenue), which nearly bankrupted the state during the 2008 recession.

    I sometimes wonder why we even have a legislature in this state.

    1. Propertius

      To be fair, the initiative process also led to marijuana legalization and got ColoradoCare on the ballot (where I expect it to fail miserably), so it’s a mixed bag.

    2. meeps

      Propertius said, “I sometimes wonder why we even have a legislature in this state.”

      I heard this sentiment from people while I collected signatures for ColoradoCare. Our citizen initiative process is being used more frequently, I think, because it’s the last line of defense against a legislature that favors the interests of big oil, big pharma, big bible etc. over the interests of the people (the unincorporated kind) and the environment. As you point out, people can be manipulated or indoctrinated into voting against their own interests, so the process isn’t fool-proof. Until trust is restored (in other words, when money is no longer speech) I suppose we’ll just have to read and research the tome that accompanies our ballots.

      I voted Green, for 69 and against 71.

    3. Ranger Rick

      Sounds like the initiative process is working as intended, then. The legislature refuses to represent their constituents, so the constituents appeal directly to the voters. It’s a shame they have to do so in the form of a constitutional amendment as opposed to a traditional state law since constitutions are generally intended to be a framework for interpreting laws but they’re making do with what they have in true Western fashion.

  8. a different chris

    >did not come from the regions where fracking is most intense

    Seems they are all about the local’s feelings when it suits them.

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