Legal fallout from nuclear bomb frack job reaches Colorado Supreme Court

Even as state oil and gas regulators mull over new rules for the disclosure of chemicals used in hydraulic fracturing, the Colorado Supreme Court is pondering whether citizen activist groups can intervene on matters like the ultimate frack job in 1969 using a 43-kiloton nuclear bomb.

A radiation warning sign at the Project Rulison blast site.
That blast more than 8,000 feet beneath the surface near the tiny Western Slope dot on the map called Rulison was meant to free up natural gas for commercial use. Instead it produced gas so radioactive it was useless and generated legal ripple effects still being felt today.

During the most recent oil and gas boom in Garfield County, Canadian drilling giant EnCana – a company involved in a couple of the most notorious oil and gas water contamination cases in both Colorado and Wyoming – applied to drill within a three-mile radius of the Project Rulison blast zone.

That understandably made modern-day residents still living near the former federal experimental blast area quite nervous, given that no one, including state oil and gas regulators, was exactly sure what would come to the surface if drilling began again in the area.

Citizen activist and environmental groups sought to intervene with the state’s lead regulatory agency – the Colorado Oil and Gas Conservation Commission (COGCC) – but were rebuffed. The COGCC contends such groups have no official standing in such matters, and that only local governments can protest drilling permit applications in places like Project Rulison.

Last week the Colorado Supreme Court heard arguments from both the state and groups that filed a lawsuit in the matter – Western Colorado Congress (WCC) and the Grand Valley Citizens Alliance (GVCA).

The state’s highest court is expected to make a decision in the matter by the end of the year – a ruling that’s being watched carefully by grassroots activists around the state who are lining up to oppose the latest oil and gas boom in much more populous places along Colorado’s Front Range.

“Right now, only industry, mineral interests and local government have ‘legal standing’ to request a public hearing on a matter before the [COGCC],” WCC’s Frank Smith told the Colorado Independent. “But two of our member families live on top of the Garfield County 43-kiloton blast site. The COGCC has a duty to protect public health, and it’s too bad that citizens had to take them to court.”

COGCC officials declined to comment on the case, which was argued by lawyers for the Colorado attorney general’s office. AG’s office attorney Daniel Domenico reportedly told Supreme Court Justice Gregory J. Hobbs Jr. that allowing citizen groups to request hearings could unnecessarily bog down the permit process, and that such groups can make their concerns heard at the county level.

“There is some resistance to the rabble, if you will, getting in the way,” GVCA attorney Martha Tierney told Hobbs.

But other citizen groups have sued the COGCC because they say their concerns are being ignored at that level. Those groups are also closely watching the Supreme Court case.

“We are fighting for the right to be in the room when matters concerning our health, safety, air and water are being decided,” said Citizens for Huerfano County (CHC) attorney Julie Kreutzer, who attended the recent Supreme Court hearing.

CHC sued the COGCC over a Shell exploration well permit process in which state officials later admitted they failed to provide proper notice to county officials. Such cases are stirring citizen groups across the state to demand more county-level intervention.

Colorado Springs, one of the most conservative and pro-business municipalities in the state, recently imposed a moratorium on fracking. But not all towns and counties are so receptive to citizen concerns on the issue.

And COGCC director David Neslin, an attorney, has long maintained the state’s supremacy on drilling issues. While he would not comment for this story, Neslin in the past told the Colorado Independent any conflict between state and local regulations might have to be decided by the courts.

“Obviously, at some level the State Legislature has assigned to the oil and gas conservation commission the responsibility for facilitating the development of the state’s oil and gas resources in a way that’s safe and protects the environment,” Neslin said, “and at some point, local government actions or decisions that conflict with that legislative mandate could be preempted.

“As to any particular instance that’s going to raise a legal issue, then we’d have to look to the attorney general’s office for advice on it.”

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