Big Oil Takes Aim at Local Control of Fracking

Can you taste it? I can actually taste it before I can smell it,” said J.D. Ruybal, 59. We were in a field outside of Windsor, Colorado, where he has lived for nearly three decades, staring down—and whiffing—a fracking well. Rybal calls himself a Colorado “gasman—raised by natural gas.” He worked in the fields for years until he got injured on the job and was no longer able to work; he now carries a cane.

Now Ruybal is a critic of fracking and a self-described “pro-democracy” advocate working with a grassroots group, Coloradans for Community Rights, to get an initiative onto the state ballot in November that would ensure local self-governance, including the right to ban fracking. He was taking me on a behind-the-scenes tour of Weld County, home to nearly half of the state’s active fracking wells, which boomed in Colorado in 2009. The tour—conducted in an old Dodge Intrepid with tornado-inflicted dings and dents—passed wellheads nestled in residential developments, gas flares, pipelines, suburbs, wheat fields and lakes. All beneath the Rockies’ inscrutable gaze.

Fossil fuels have been a staple of Weld’s economy for decades, and since fracking took off about seven years ago, the county saw one of the largest drops in unemployment nationwide—a stat the industry loves to tout.

But fracking is, at best, a mixed blessing. Hydraulic fracking is the energy-intensive process of blasting deep rock formations with large quantities of water, chemicals and “frac sand,” in order to liberate gas. It has been widely described as a “cleaner” alternative to oil and coal, and as a “bridge fuel” to a green-energy future. But as the process has spread nationwide, it has been shown to cause earthquakes, contaminate drinking water, and contribute to local air pollution and potentially catastrophicclimate change. Weld County made headlines when in 2013 unprecedented flooding broke an oil pipeline, ruptured oil storage tanks and inundated abandoned wells.

Though it has created many jobs, the conditions for workers are often dismal, Ruybal said. Extraction is done by layers of subcontractors, who are typically looking to cut costs with little concern for workers’ protections. Last year, the U.S. Occupational Safety and Health Administration fined Halliburton for what the agency called “serious” violations in Weld County that killed one and injured two. Ruybal told me that in an unrelated event involving a separate company, a man told him he had been pulled into a frac sand conveyor belt and gravely injured after he said he tried to get a failing handle replaced, to no avail.

While Colorado’s fracking regulations are heralded by the industry as the nation’s most stringent—proof that fracking can be done safely—many local communities want nothing to do with the process. But many other communities support fracking. According to a 2013 Quinnipiac poll, Colorado voters back fracking 51%–34%, with Republicans and Independents more likely to support it than Democrats. However, a 2014 poll also showed that Coloradans strongly support local control and stricter regulations over the process.

As much as a local population may wish to ban fracking or contain the damage in its community, their hands are tied. In Colorado—as in many other fracking states across the country—the power of a city or county to make its own rules about fracking has been trumped, or “preempted,” by the state, an idea that was confirmed by the Colorado Supreme Court earlier this year. “The mayor and governor both tell us we can’t do anything about it,” said Ruybal.

By 2012, some activists were turning to the local ballot initiative process—by which citizens write, petition for and vote on legislation—to assert some control over fracking in their area. The ballot initiative process is one of the few forms of direct democracy in the U.S. (Only 24 states have a process for citizen lawmaking, although it is in common use at the local level.) In 2012 and 2013 at least five Colorado localities passed moratoria, bans or stricter regulations related to fracking.

The industry, together with the state attorney general, quickly pushed back, filing lawsuits claiming that local laws violated the state’s supremacy over oil and gas regulation and infringed on fracking corporations’ Fifth Amendment protections against being deprived of property without due process.

“We just want to be able to put the issue to a vote,” said Ruybal, who said local officials didn’t allow his group to collect signatures for what would have been effectively a fracking ban in Windsor, where the mayor has endorsed fracking as in the public interest. Nearly identical local measures have been approved in other areas. Like many other “fracktivists,” Ruybal concluded that the only option left was to change the state constitution to enshrine local control over extraction via the state ballot initiative process.

This turn toward direct democracy has brought the debate to a fever pitch. The industry has spent millions of dollars since 2014 to flood the airwaves with pro-fracking messages. And for some employees, the topic is shrouded in fear. After emailing an industry employee information about the dangers of radon exposure, Ruybal said that the worker never emailed back. “He showed up on my porch and [said,] ‘Don’t be emailing me anything like that. Next time, make a copy, give it to me, but don’t ever email me,’” Ruybal said. Another woman told me that she did not want her or her baby included in this story, for fear that her husband, who works for the industry, would lose his job.

Lawsuits against the industry for damage to person or property are frequently settled out of court and accompanied by nondisclosure pacts that stop people from speaking publicly about fracking’s dangerous consequences. Still, not everyone is staying quiet. Our next stop was a home, owned by a woman named Susan, that stands a stone’s throw from one of the largest wells I saw all day. “We’ve literally given this town away,” Ruybal said as we turned off the state highway onto the property where Susan’s home sits among a few trees. “It’s being raped.”

We pulled up beside Susan’s deck, where the yard art, bird bath and modest flower bed looked out on a large dirt wall that the industry constructed to try to hide the fracking operation on the neighboring land. It is all visible, however, from the driveway. The wells, with hundreds of baseball bat–sized pipes, looked like a miniature factory. Beside it were an assortment of large storage tanks and evidence—gashes in the land—where a hundred-foot drill once stood. “I was just sitting here, waiting for a truck to go by,” Susan said shortly after we approached. A recovering lung cancer patient, she was waiting to badger the endless cycle of anonymous truck drivers coming to the well to stay under 5 mph and to switch off the backing up alarms that so visibly disturbed her. “That’s how this works—if you want something done.”

Soon a truck approached. “Here’s what comes into my driveway,” said Susan, who asked that her last name not be used. “It’s a tanker….I’m assuming he is going in empty and coming out full.”

Susan was overflowing with stories: of the vibrations that brought down her shelving; of the never-ending beeping of the trucks; and of the fumes, which I could smell from her wooden perch on the deck. “When the wind blows, it’s bad,” she said of the white residue of chemicals, sand and silicon that had been used in the drilling process. “When it blows and makes, like, a dust devil, it’s awful.”

The landscape, once brimming with sagebrush and wild turkeys, was elevated and flattened to accommodate the wells. Now it drained onto Susan’s property, inundating her basement and flooding her mudroom in 2013. The industry did pay for repairs to her house after the floods, she says, though the repairs were only finished this year.

And then there’s the gas flare. “The whole town of Windsor saw my fricking flare,” Susan said, referring to the flame that burned excess gas and lit up her front yard. “It ran 30 days, 24/7. That was hard.”

The passing truck drivers paid little heed to the speed limits meant to keep dust down, and backing-up alarms were not turned off. “Who even cares that I’m sitting here,” Susan said. “So I go inside.” Still, she said, “I’m pro-oil and gas, there’s nothing else I know how to be. I’m just upset by the way we’ve been treated. When it happens next to you, you think about it differently.

Ruybal, a former member of the Windsor City Planning Commission, first got involved when the industry started to frack in Windsor’s residential neighborhoods, despite zoning laws. “An industrial use in a residential area?” he said. “That alarmed me.” Since then he has been on the front lines, gathering signatures for the latest ballot initiative, paying visits to people like Susan, cataloging oil and gas spills and meeting with organizers from across the state.

He is not alone. The Community Rights Amendment ballot initiative is one of three measures aimed at fracking that activists are attempting to get on the November ballot. It would upend the state’s constitutional power to preempt a local government’s attempt to increase regulatory protections—not only on fracking but on issues like the minimum wage. Two other anti-fracking initiatives are being pushed by Coloradans Resisting Extreme Energy Development (CREED), a more mainstream environmental group backed by national groups like Food & Water Watch. One measure targets the state’s power over local governments, but only regarding fracking; the other would increase the distance required between new wells and homes, hospitals, and schools to 2,500 feet; it is currently 500 feet.

Many anti-frackers believe that 2016 offers them their last, best chance to protect their communities. But if recent history is any guide, it’s a long shot. The connections between industry, with its deep pockets, and the state’s leadership get more deeply entwined each year. And an industry victory last year imposed onerous requirements on the ballot initiative process, increasing the challenges faced by anti-industry advocates.

In January 2015, legislation was introduced in the Colorado House of Representatives, to tack “fiscal impact” statements onto all future ballot measures. The bill, HB 1057 had been drafted by Colorado Concern—comprising industry executives, corporate law firm partners, university presidents and other business CEOs. These statements highlight an initiative’s impact on short-term state revenue. No positive or nonfiscal impacts—such as those involving human or ecosystem health, safety or tourism—are required. The reform would also create new mandatory fiscal hearings for petitioners, adding yet another hurdle before they could begin gathering signatures.

A number of environmental, labor, and community-rights groups opposed the bill. They argued that the bill would hamper the process by holding initiatives up in court (lawsuits can be filed by anyone who views the analysis as biased), and would postpone initiatives if lead petitioners are unable to attend the new hearings. They also attacked the logic of the impact statement for failing to offer voters a true risk/benefit analysis of all of fracking’s potential impacts. “There are benefits to ballot measures as well as costs, and all 1057 does is talk about the financial costs to the state,” Mike Foote, a Democratic state legislator, said. “[HB] 1057 gives the industry an additional tool to fight the initiative process. … [They] can use it as a hammer on any kind of initiatives that were to go against oil and gas.”

“[The new fiscal impact hearings are] one more step in the process,” said Stan Dempsey, president of Colorado Petroleum Association (CPA), who lobbied in support of the bill. (CPA’s board includes officers from Halliburton, Anadarko, Marathon, Occidental, Chevron, BP, and other major players in the state’s gas fields.) “I’ll be clear: when you’re fighting an initiative, you take advantage of all the tools in front of you.”

Other than Democratic Gov. John Hickenlooper and a few Democrats in the House, support split along party lines, with Republicans in favor and Democrats against. In his January 2015 State of the State address, Hickenlooper announced that “fiscal responsibility” for ballot measures would be a priority for the four-months-long legislative session. After a hard-fought 138 days of lobbying, the bill’s powerful proponents garnered support from the few Democrats needed to get it through the House. At that point the bill was an assumed shoo-in, as the Senate’s slim Republican majority was expected to quickly rubber-stamp it. But when votes were cast, the bill was defeated—by a single vote. First-year Republican Chris Holbert had apparently not gotten the memo. An audible outcry from the lobby was heard, legislators report. The co-sponsor of the bill rushed to consult with the rookie, who then reversed his vote, and the bill was passed.

The celebration was on. Correspondence between Colorado Concern and Hickenlooper’s office shows the pro-industry group sending the governor’s office a list of organizations and people for the governor to invite for the bill signing. “An invite from the Gov’s office is meaningful—so if you’d like to send something out, and then we can follow up also that’s great,” Colorado Concern’s then-CEO Tamra Ward wrote to a governor’s staffer.

The passage of that law has created a sense of urgency for petitioners. There seems to be a general consensus among anti-fracking and pro-democracy groups that time is running out for direct democracy. “They’re making it harder [to get on the ballot],” Ruybal said. “But not for people with money.”

Industry has been quick to respond with its own measures. A new group called Building a Better Colorado and a leading pro-fracking spokesperson are pushing a ballot measure to make it much harder to amend the state constitution via the ballot process, as the anti-fracking measures aim to do. This initiative would require that petitioners gather signatures from 2% of registered voters from all 35 state senate districts and that amendments pass with 55% of the vote. These requirements would not only greatly increase the cost of gathering signatures but also give a single county veto power over any initiative.

Although the battle is being fiercely fought in Colorado, fights over fracking—and preemption—are part of a larger national strategy that places the ballot initiative process in the crosshairs. Throughout the country, industry-affiliated politicians are working hand in glove with the American Legislative Exchange Council (ALEC), a network of corporate donors and state legislatures with strong ties to the Koch brothers, whose oil and chemicals empire is a leading funder of climate denialism. In 2015, the group highlighted the fact that Hickenlooper had presented the obscure issue of fiscal impact statements as urgent state business.

Also last summer, Ohio’s secretary of state, Jon Husted, removed three county fracking bans from their local ballots. He (and his industry-affiliated lawyers) argued that local citizens should not have the right to vote on issues, like fracking, over which the state claims supremacy. It was a new legal argument that would have quashed the state’s anti-fracking movement. Though the argument was struck down by the state Supreme Court, Husted won the case on a technicality and the initiatives were removed.

The same legal argument about state preemption has cropped up in recent years in Washington state, Oregon and Missouri to block cities and counties from voting on local workers’ rights bills, local GMO bans and local minimum wage increases. Over the past three years, legislators who are closely tied to ALEC have also passed ballot initiative reforms in Arizona, Arkansas, Michigan, Missouri, Nevada, Ohio, Oklahoma and Utah.

And in Michigan, where the volunteer-led Committee to Ban Fracking in Michigan has been working since 2012 to get a fracking ban on the state ballot—they are currently collecting signatures to qualify for the 2018 ballot—a reform was signed into law in June that shortens the signature-gathering window. If upheld in court, the law will succeed in preventing the ban from reaching the ballot. The bill was pushed by legislators tied to ALEC and supported by the Michigan Oil and Gas Association and the Michigan Chamber of Commerce.

“What you have is a collision in slow motion,” Cliff Willmeng of Coloradans for Community Rights said, “where the people have identified this extremely important constitutional ability to advance their interests, and at the same time the industry has identified that as the main voice…that could interfere with industrial activity and profiteering.” His mother, Merrily Mazza, a Lafayette city councilwoman, said, “In Colorado the initiative process is all that’s left, and they’re working real hard to get rid of that, too.”

Shortly before publication the Rights Network announced it would not make the 2016 ballot. Its expenditure of only $7,900 and fewer than 250 volunteers was not enough. CREED’s “issues committee,” which supports ballot measure, spent more—$65,300. That committee is rushing to collect the required 98,492 signatures, or 5% of the population who voted in the last election, before the August 8 deadline. Meanwhile, an industry-backed advertising campaign against all three has collected at least $7 million. Also on the industry side, Building a Better Colorado’s well-funded measure to inhibit the process is expected to qualify for the ballot. “It’s really daunting,” Ruybal said. “It’s so frustrating when we have groups like Build a Better Colorado, who try to make [getting on the ballot] sound as easy as getting a fishing license.”

Why the huge investment? The industry is afraid that if an anti-fracking measure even reaches the ballot in Colorado, belief that local self-government is a realistic political goal could spread, as copycat marijuana initiatives have. “I hate to say that their efforts work,” said Ruybal, “but they really do.” Desperate to stop an activist victory from becoming an example, they are targeting the direct democratic process itself.

“They’re playing chess while we play checkers,” Ruybal said. “They’re playing a whole different game.” Earlier this summer, the problem with fracking came home to him in a visceral way when a drill went in on the other side of the lake Ruybal lives on. “They’re drilling under the lake,” he told me. “We can feel it in the floor.”

This article was reported in partnership with The Investigative Fund at The Nation Institute, with support from the H.D. Lloyd Fund for Investigative Journalism and the Investigative Journalism Committee of the Fund for Constitutional Government.