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In Colorado, Ballot Initiatives Are Back in Full Force

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by Frances Folin

As primary season for midterm elections gets underway, so too does canvasser season. In Colorado alone, canvassers are out in full force and looking to get enough voter signatures for a number of different initiative statutes and constitutional amendments concerning energy, property rights, and fracking.  The Colorado initiatives and amendments are varied, but of particular note are Initiatives 178-181, Initiative 97, and Initiatives 108-113.

Initiatives 178-181 are seeking to amend the state’s constitution to provide local control over oil and gas operations. The four versions of the initiatives would give local governments authority to regulate certain aspects of surface use and provide them with authority to inspect and monitor oil and gas operations.  Recent Colorado cases have held that control of exploration and operations are within the purview of the Colorado Oil and Gas Conservation Commission and not local governments.

Initiative 97, an initiated state statute, seeks to ban all oil and gas development, including fracking, within 2,500 feet (or approximately ½ mile) of occupied buildings and “vulnerable” areas. As defined in the Initiative, vulnerable areas include playgrounds, permanent sports fields, amphitheaters, public parks, public open space, public and community drinking water sources, irrigation canals, reservoirs, lakes, rivers, perennial or intermittent streams, and creeks, and any additional vulnerable areas designated by the state or a local government.  The Initiative also provides greater local control over oil and gas operations by providing that the state or a local government may require a greater setback between occupied structures and oil and gas development.  Initiative 97 is similar to a failed 2016 state constitutional amendment which also sought to increase setbacks to 2,500 feet.

Initiatives 108-113 were submitted in direct response to Initiative 97. These potential amendments to the state’s constitution would provide compensation for property owners for any possible reduction in property value caused by state laws or regulations.  These initiatives were filed by the vice president of the Colorado Farm Bureau and an Elbert, Colorado farmer.  Backers of the Initiative are seeking to protect private property rights from potential government takings which could result from increased setbacks that make property owners’ mineral rights inaccessible and undevelopable.  A study by the Colorado Oil and Gas Conservation Commission in 2016 found that a setback of 2,500 feet would make 90% of the state’s oil and gas reserves impossible to develop.

Signatures are currently being collected for all of the above initiatives and are due in early August for review and certification by the Colorado Secretary of State.  It is unclear how many signatures have already been collected or which, if any, of the initiatives will ultimately make it on the ballot in November.  If approved by voters, the initiatives could, however, have a significant impact on tax revenues, jobs, and private property rights, and could ultimately lead to lengthy litigation.