Update on Proposed Anti-Oil and Gas Ballot Initiatives

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By Elizabeth Titus, Counsel, Hogan Lovells 

The Colorado Constitution enables citizens to amend its provisions and pass new legislation through the initiative process.  Before a proponent can submit an initiative for the electorate’s consideration in the November general election, the proponent must appear before Colorado’s Title Board to obtain a title for the initiative, and must obtain the requisite number of signatures.

The Title Board’s work is relatively narrow.  First, and without considering an initiative‘s merits, the Title Board must determine whether the measure consists of only a single-subject.  If the initiative passes the single-subject test, the Title Board drafts a title for the initiative.   The Board frames the initiative’s “title” as a question, which ultimately appears on the ballot.  The full text of the measure appears in the Blue Book.

Currently, 11 proposed constitutional amendments, with the potential to adversely affect the oil and gas industry, are moving through the title-setting process before Colorado’s Title Board.  It is too soon to predict which, if any, of these measures will ultimately come before the voters in November.  Below is a summary of the various measures and their respective statuses in the title-setting process.

Measure 2015-2016 #40 – Right of Local Community Self-Government

Proposed Initiative 2015-2016 #40 attempts to create a new inalienable right in the Colorado Constitution.  Specifically, the measure grants “the people… an inherent and inalienable right to local self-government.”  In connection with this new inalienable right, Initiative #40 grants local governments (e.g. cities and towns) the power to, among other actions, enact local laws by “recognizing or establishing rights of natural persons, their local communities and nature.”  The measure does not elaborate upon what these “rights” might entail.  Particularly concerning for all industries, the measure also empowers local governments to “establish, define, alter or eliminate competing rights, powers, privileged immunities or duties or corporations and other business entities….”

The Title Board has set title for this measure.  A challenge to the title is pending before the Colorado Supreme Court.  Opening briefs from the parties are due February 3, 2016.

 Measure 2015-2016 #62 – Ban on Hydraulic Fracturing

Proposed Initiative 2015-2016 #62 attempts to amend the Colorado Constitution to prohibit the practice of hydraulic fracturing in oil and gas development. In addition to imposing a fracking ban, this amendment also emphasizes that the ban is not a “taking” of private property by the Colorado government.  Therefore, to the extent that the ban causes private property to decline in value or become otherwise undevelopable, the property owner could not seek compensation from the state under the Colorado Constitution.  However, this measure would not affect a property owner’s right to pursue a takings claim under the federal Constitution.

The Title Board set title for this measure on January 20, 2016.  A motion for rehearing before the Title Board was filed on January 27, 2016.  The Board will conduct the rehearing on February 3, 2016.

Measure 2015-2016 #63 – Right to a Healthy Environment

Proposed Initiative 2015-2016 #63 attempts to create a new right in Colorado’s Constitution to a “healthy environment” and to require state and local governments to assign the “highest priority” to the protection of a healthy environment.  In addition to creating this new right, this measure empowers local governments to enact laws protecting the environment.  Under the initiative, if a local law and state law address the same topic (e.g. oil and gas development), then the law deemed more protective of the environment shall control.

Although this measure does not directly address oil and gas development, its design appears to enable local governments to prohibit or curtail oil and gas development under the pretense of creating a healthier environment.

The Title Board set title for this measure on January 20, 2016.  A motion for rehearing before the Title Board was filed on January 27, 2016.  The Board will conduct the rehearing on February 3, 2016.

Measure 2015-2016 #75 – Local Control of Oil and Gas Development

Proposed Initiative 2015-2016 #75 attempts to amend the state Constitution to enable local governments to regulate oil and gas development, including the “ability to enact prohibitions, moratoria, or limits on oil and development.”  Moreover, the measure makes clear that such local laws could not be pre-empted by conflicting state laws.  Initiative #75 squarely addresses an issue that the Colorado Supreme Court is currently considering in  litigation brought by COGA, concerning bans implemented by Fort Collins and Longmont.

The Title Board hearing on this measure is scheduled for February 3, 2016.

Measure 2015-2016 #76-83  – Mandatory Setback from Oil and Gas Development

Proposed Initiatives 2015-2016 #76-83 are different variations on the same theme – each initiative attempts to amend the Constitution by imposing a setback for new oil and gas wells.  Below is a full summary of Initiative #76 and an explanation on how Initiatives #77-83 differ from the base measure.

  • Measure #76 attempts to establish a constitutional amendment requiring that new oil and gas wells and related facilities be set back 2,500 feet from occupied structures and “areas of special concern.” Areas of special concern include the following:  “public and community drinking water sources, lakes, rivers, perennial or intermittent streams, creeks, irrigation canals, riparian areas, playground permanent sports fields, amphitheaters, public parks, and public open space.”  Even more concerning, this state and its local governments have the authority to impose their own setback restrictions, which may be larger than 2,500 feet without a cap.  This measure also attempts to prohibit the construction of new occupied structures and area of special concern within 2,500 feet of existing oil and gas facilities.
  • Measure #77 is the same as Measure #76, except that it contains a 4,000-foot setback.
  • Measure #78 is the same as Measure #76 (2,500-foot setback), but it does not contain any setback prohibiting construction of new structures or areas of special concern from existing oil and gas facilities.
  • Measure #79 is the same as Measure #78, except that it contains a 4000-foot setback.
  • Measure #80 is the same as Measure #76, except that it contains a slightly different definition related to oil and gas development.
  • Measure #81 is the same as Measure #77, except that it contains a slightly different definition related to oil and gas development.
  • Measure #82 is the same as Measure #78, except that it contains a slightly different definition related to oil and gas development
  • Measure #83 is the same as Measure #79, except that it contains a slightly different definition related to oil and gas development.

 

The Title Board hearings for Measures #76-83 are scheduled for February 3, 2016.

 

Ms. Titus is a graduate of the 2015 EnGen Class and serves as Counsel at the law firm Hogan Lovells.

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