Governing by initiative

Proposal would allow localities to pre-empt state law

The jurisdictional tension be­tween state and local govern­ments is one in constant flux, with adjustments made to reflect changing dynamics, new informa­tion and emerging issues. That moving target can be a frustration for local communities wishing to set a course that diverges from that charted by the state, or vice versa, but to a large extent, the state and its localities are able to work to­gether to address issues of mutual concern. Hydraulic fracturing of gas and oil wells is testing that rela­tionship, though, and the proposed ballot initiative would tip the scales in favor of local communities.

Largely regulated by the state through the Colorado Oil and Gas Conservation Commission, the natural gas and oil industry is one that has both statewide and local impacts. Cities and counties set land-use rules that work in concert with statewide regulations govern­ing when, where and how gas and oil can be developed. This overlap can be challenging to navigate, but to a large extent, communities in Colorado have been successful in both informing and responding to statewide regulations to create what is considered one of the most robust network of rules and players working together to oversee and implement gas and oil activities.

A proposed ballot initiative would undermine that network by allowing local governments to ban industrial activities in their com­munities, even if those activities were allowed under state rules. While primarily geared toward hydraulic fracturing – a controver­sial but widely used technique for freeing natural gas trapped deep underground by injecting wells with a cocktail of chemicals, sand and fluid – the proposal, by its pro­ponent’s claim, could reach much farther afield.

“The measure would address any type of corporate project that a local community would deem to be a threat,” said Cliff Willeming, the measure’s organizer. “That could include hydraulic fracturing (or fracking), but would not be limited to it.”

Indeed, Willeming envisions the initiative spurring local govern­ments to weigh in against dam construction or planting geneti­cally modified crops, among other potentially divisive endeavors. While each of these is worthy of conversation and perhaps some restrictions, paving the way for an outright ban on activities that the state does allow is problematic.

First, there are property-rights concerns at stake. Even for contro­versial activities such as gas and oil development, when addressed through state and local regulatory processes, many, if not most, as­sociated issues can be addressed to the more or less mutual benefit of industry and its neighbors. Allow­ing for local bans on locally unde­sirable activities throws that scale out of balance.

It is not for the wrong reasons that Willeming is seeking to bring this question to the ballot. Com­munities are right to be concerned about industrial activities that can have an impact on human and environmental health. But estab­lishing a mechanism for banning those activities outright sidesteps a better avenue to resolution: state and local governments working together with industry to address concerns, minimize impacts and avoid sensitive populations or areas. That process might not yield perfect results for any one party, but it underscores a critical rela­tionship between the state and the communities it comprises. Keeping that intact is of primary concern – and essential for responding to evolving issues and industries as they emerge.