An Overdue Makeover for Colorado’s Oil and Gas Statute

It may be a myth that oil and gas are literally dinosaurs—but some laws regulating their production fit that description quite nicely. Enacted decades ago, when there was a lack of scientific research on the public health impacts of that production, these statutes often contain “drill baby drill” language encouraging maximized production, crafted to suit the needs of the fossil fuel industry rather than protect the public.

Fortunately, Colorado officials are now taking initiative to remove that type of language from Colorado’s oil and gas statute, and strengthen its public health and environmental protections in multiple ways. Last Friday, Governor Jared Polis and a group of Colorado legislators announced the introduction of Senate Bill 19-181, a sweeping overhaul of Colorado’s antiquated oil and gas regulation statute. 

The Colorado bill would put in place several much-needed reforms to the law establishing the mission and authority of the Colorado Oil and Gas Conservation Commission (COGCC), which contains language dating from the 1950s encouraging maximized drilling. The bill aims to put in place common-sense reforms that re-align the COGCC governing statute with a modern understanding of the public health and safety risks of oil and gas drilling, and ensure that COGCC is working to protect the public and not just industry. The reform package takes aim at curbing the consequences of the explosive expansion of oil and gas drilling across the state in recent years, which has increasingly been encroaching on communities, homes, and schools, putting the public and first responders in harm’s way. Hundreds of oil and other toxic spills related to drilling occur in Colorado every year; and researchers at the Colorado School of Public Health have identified at least 116 fires and explosions at Colorado oil and gas operations between 2006 and 2015.    

Senate Bill 19-181 is a multi-faceted effort to ensure that COGCC prioritizes public health and safety. Its key elements include the following:

• Clarifying COGCC’s mission. Senate Bill 19-181 clarifies COGCC confusing dual mission defined in the current statute, which requires COGCC to both “foster” the growth of oil and gas drilling and regulate it at the same time. Earlier this year, the Colorado Supreme Court interpreted the “foster” language, enacted in 1951, to mean that health and environmental concerns cannot outweigh COGCC’s mission of encouraging production. The bill would establish as a priority for COGCC the protection of public health, safety, welfare, the environment, and wildlife resources. It also clarifies that leaving some oil and gas in the ground, if necessary to protect the public, cannot be considered “waste” of those resources.
• Increasing local authority. Since drilling is increasingly happening practically on top of local communities, Senate Bill 19-181 ensures that they have the ability to regulate it to protect themselves. It clarifies that local governments can regulate oil and gas operations with respect to land use, surface impacts, siting, and prevention of nuisance—even when their regulation is stricter than COGCC’s. It also allows them to collect fines and fees. 
• Changing the makeup of COGCC. The bill would take steps to help ensure that the COGCC is working for all Coloradans, not just for the oil and gas industry. The statute defines with specificity who the nine members of COGCC are, right now in a way that skews its decisionmaking toward industry interests. The bill would reduce the number of members to seven, and reduce the number associated with industry from three to one.
• Minimizing hydrocarbon emissions. The bill directs the Colorado Air Quality Control Commission to adopt rules to minimize emissions of methane and other hydrocarbons, as well as nitrogen oxides, from all phases of oil and gas production. These sorts of emissions can contain air toxics, and are associated with the formation of ground-level ozone. Colorado led the nation in the development of rules to prevent emissions of methane and other air pollution from the oil and gas industry, and can continue to be a leader by adding new protections.

Predictably, industry is already howling in protest at this effort to cut into its antiquated privileges. The ink was barely dry on the bill before industry lobbying shills such as the Colorado Oil and Gas Association and Colorado Petroleum Council began complaining that it was moving too fast. And if history is any guide, industry will pour massive resources into defeating it. Just last year, oil and gas companies spent more than $200,000 lobbying at the Colorado state capitol, in addition to spending big in election and ballot measure campaigns.  Since 2014, the industry has also spent tens of millions of dollars in Colorado on TV commercials, bus signs, and other advertising trying to convince the public, against the evidence right in front of them, that drilling is safe. 

Although these propaganda campaigns are frequently effective, they don’t have to be. Alert and aware citizens, armed with knowledge of the risks of production and determined to gain the protections they need, will prove stronger in the end than industry scare tactics and misinformation. The fact of the matter is, industry is awash in the resources needed to conduct drilling more responsibly; and heightened safety requirements can create new jobs implementing them. We are hopeful that the Colorado legislature will see past all the well-financed industry propaganda to ensure that the dinosaur elements of the COGCC statute are rendered deservedly extinct.