Coloradans, at a lull in the battle over fracking, eye news from New York

[dropcap]T[/dropcap]he oil and gas industry suffered a major defeat in one of the most influential states of the union this week when New York officials decided to ban hydraulic fracturing across the state, including in the rural southern reaches, which sit atop the same gas-rich Marcellus Shale formation that has transformed neighboring Pennsylvania into boomtime drilling country over the past half decade.

The news has rippled across the country and splashed into oil-and-gas stronghold Colorado, where tensions around drilling have run high and higher in recent years and where responses to the New York ban predictably see-saw between those who discount it as irrelevant and those who celebrate it as a sign of a cleaner-energy future.

New York

Democratic New York Gov. Andrew Cuomo, who has been dogged by an expanding, high-profile anti-fracking movement, had been dancing around the question of a ban for years. But this week all the cards appeared to fall into place to make it possible for him to brush off the nearly unlimited resources the drilling industry has to spend and the powerful messaging machinery it operates: Cuomo had won reelection, the state economy had shaded brighter, legal precedent supporting a ban had piled up, and state researchers as if on cue delivered a report years in the offing that tipped the scales.

Health Commissioner Howard Zucker said that fracking — the method virtually synonymous with all oil and gas drilling today in which a mix of water, sand and chemicals are blasted deep into the earth to break up rock and release minerals — could contaminate the air and water and generally posed too many uncertain risks to public health and safety.

News of the ban drew groans from industry lawyers and spokespeople who said Cuomo had been swayed by bad research and activist hyperbole. It was another if more dramatic loss in a long line of losses for the industry in the state. Drilling supporters suggested that, at least for now, the industry was “writing off New York as being influenced by extremists,” as Thomas West, an Albany lawyer who represents landowners and drillers, put it.

But, of course, the war over fracking doesn’t stop at the border of the Empire State. The New York ban is the kind of first-round underdog victory for the environmental and new-energy movement that the drilling industry has fought intensely to head off for years, precisely for the way it is already reverberating across the continent, raising expectations and fueling anti-fracking movement momentum.


None of this was lost on Coloradans, where extraction has boomed over the last five years, bringing fracking from the relatively wide-open Western Slope into Front Range communities — that is, from isolated mountainsides and grand valleys to suburban back yards and school grounds. The result has been a series of increasingly intense political and legal battles over state regulation, local zoning power and municipal fracking bans.

“Colorado is not New York and every state has to find the approach to energy development that makes sense for their communities,” Colorado Democratic Gov. John Hickenlooper told the Independent in an email. The governor has just won reelection, the Colorado economy has shaded brighter over the last two years and some health studies are beginning to raise alarms about fracking here. But Hickenlooper is a former oil and gas geologist who has always seen natural gas as a vital bridge fuel to the clean-energy future. He has fought democratically passed municipal bans in court and won. Indeed, legal precedent here is mostly running away from the power to ban drilling anywhere in the state. Partly in response to election-year intra-party squabbling, Hickenlooper established a task force to weigh citizen and industry concerns and develop comprise proposals to present to lawmakers in the new year.

“Colorado is fortunate to have an abundance of energy resources and a long history of environmentally responsible energy development,” Hickenlooper continued. “The work of our task force will ensure we continue to develop in a way that is safe for our residents, supports jobs and the economy, respects private property rights and protects our environment.”

B.J. Nikkel, a Republican former state representative and director of the pro-drilling group Loveland Energy Action Project, said Coloradans shouldn’t be looking to New York for lessons on fracking. In fact, it’s the opposite, she said.

“Gov. Cuomo should have looked to Colorado, as many other states across the nation have, for a few lessons in how to work with people sharing different points of view on energy development,” she wrote in an email. “Instead, [he shut down] a 70-year-old industry there, which will most surely affect many peoples’ lives. Colorado’s model allow for significant power and balanced input locally… [We have] a legislature and governor who have worked hard to provide commonsense balance for the overall safety and good of the people of our state.”

Jon Haubert, spokesman for industry lobby group Coloradans for Responsible Energy Development or CRED, put it even more flatly. “There isn’t much for Coloradans to take away from Gov. Cuomo’s decision as it has no relevance here – different states make different laws and decisions all the time. In Colorado, when these bans or moratoriums on fracking have been challenged in court, they consistently get overturned and deemed illegal.”

The East and the West

It would be hard to successfully argue against that point.

New York lawmakers passed a statewide moratorium on fracking in 2010, with a 48 to 9 margin in the state Senate, an unimaginable turn of events in Colorado, which that year was gripped by Tea Party politics and saw candidates across the state lamenting the scourge of energy-efficient light bulbs and low-flow toilets. “Haven’t you just come to hate the word ‘green,’” said former University of Colorado Regent and congressional candidate Tom Lucero that year at a Tea Party rally in Weld County, which is now covered in thousands of active oil and gas wells.

Last year, New York was home to nearly 13,000 active wells. This year, Colorado is home to nearly 53,000 active wells. New York was a significant center of oil production in the 19th century but hasn’t been a genuine field of play for the industry for decades. Colorado now produces 1 of every 50 barrels of U.S. oil as well as large percentages of the country’s natural gas output.

Pressure and Currency

Nevertheless, the anti-fracking, mostly grassroots movement here is growing and has enjoyed major successes. Five Front Range cities over recent election cycles have passed moratoriums. Front Range Democratic Congressman Jared Polis spearheaded a well-funded ballot initiative effort last year that brought greater attention to the movement for local control and that pushed General Assembly lawmakers and Hickenlooper to acknowledge the growing level of dissatisfaction among citizens with the regulatory status quo in a state where the internationally renown outdoor recreation industry now brings in revenues and sustains employment beyond those generated by the boom-and-bust drilling industry.

In that context, the New York ban is looms large and is bound to ratchet up pressure on the governor.

“While the state of New York has concluded the risks are too great to allow fracking at all, in Colorado homeowners aren’t even allowed to stop oil and gas companies from drilling on their own property, despite being only a few hundred feet from their home or school,” Polis emailed The Independent. “I hope rather than banning it as a state, we let each homeowner and community decide if they want fracking or not.”

But activists on the ground in the gas patch see an opening for bold moves.

“The decision to ban fracking is a monumental victory for the nationwide movement,” Sam Schabacker, Mountain West Region Director at Food and Water Watch, told The Independent. “It’s time for Governor Hickenlooper to stop ignoring the science that clearly shows fracking is inherently unsafe. We strongly urge him to be a leader and ban fracking in Colorado.”

Environmental activist and consultant Gary Wockner was unabashedly buoyed by the news of full New York state ban.

“Colorado should also ban fracking, because it pollutes our air, water, landscapes, and threatens our property values, climate, and democracy. Colorado Democrats need to eject the oil and gas industry from the Party, and the state needs to race forward with a renewable energy economy focusing on solar and wind.

“Cuomo should consider a run for President in 2016,” he added.

After Republicans won control of the Colorado Senate in November, the already low expectations many politics-observers held for the governor’s fracking task force fell further. The New York fracking ban may reset the bar. The specter of continued warring and of victories for the anti-fracking movement, small and large, on the ground and of the mind, may win the task force greater currency with the industry and its lobbyists, who line the halls at the capitol in Denver.


  1. Hickenlooper casually dismisses the contractual property rights of elderly Colorado pensioners:

    “. . . Sobanet is careful in discussing the studies, noting that his boss, Gov. John Hickenlooper. . . supports defending Senate Bill 1.’”

    Yet, Hickenlooper aggressively defends the contractual property rights of oil and gas companies:

    “Whether it’s local government or state government, I don’t think government should come in and snatch somebody’s property.” . . .


    “Truth is the daughter of time, not of authority,” Bacon.

    For decades I refused to believe it, but it is now incontrovertibly established. The Colorado Supreme Court is indisputably a political actor. Our Colorado Supreme Court exists to serve Colorado political parties. At present, the Colorado Supreme Court is more rightly considered an adjunct of the Colorado Legislative Branch, than a check on the Colorado Legislative Branch. Rather than “truth-seeking,” the Colorado Supreme Court now sees its role as “political-outcome seeking.” Litigants successfully use the Colorado Supreme Court to achieve political purposes. In the Ralph Carr Justice Center, rather than meeting impartial guardians of the law, litigants meet their political allies on the bench. The Colorado Supreme Court has accepted its role as a political and partisan tool, and recognizes no constitutional limits on the authority of the Colorado Legislative and Executive branches. We have no “Rule of Law” in Colorado, we simply have shifting political power. That is all.

    “I think there are many who think of judges as politicians in robes. In many states, that’s what they are.” “They seem to think judges should be a reflex of the popular will.”

    Sandra Day O’Connor

    At present, popular will in the United States insists on the demonization of public employees. In particular, an angry mob demands that government discard the constitutional and contractual rights of retired public employees. Colorado Supreme Court justices, as politicians reacting to the popular will, are happy to oblige.

    In this article, I provide an example of the political and partisan role of the Colorado Supreme Court. I describe a case in which the Colorado Supreme Court summarily erases billions of dollars of debt owed by Colorado state and local governments. That is, one branch of Colorado state government relieves another branch of Colorado government of its legal debts. The case involves Colorado statutory contracts that create financial obligations on the part of Colorado governments. Over decades, political considerations induced the Colorado Legislature to mismanage the financial obligations. In recent years, the terms of these statutory contracts were deemed politically inconvenient and politically unpopular. The Colorado Legislative Branch asked the Colorado Supreme Court to discard the contracts.

    In 2010, the Colorado Legislative Branch requested that the Colorado Supreme Court grant this political favor by ignoring the Contract Clause of the US Constitution, ignoring the history of legislative mismanagement of these state financial obligations, and relieving Colorado governments of their accrued legal debts. No trial, no discovery, billions of dollars seized by the state.

    In granting this political favor, sanctioning the breach of Colorado PERA pension contracts, the Colorado Supreme Court was forced to ignore its own long-standing case law precedent, the court failed to conduct a “contract analysis,” the court ignored evidence of Colorado PERA’s attorneys stating that the pension benefit was indeed a Colorado PERA contractual obligation, the court ignored the bill (SB10-001) sponsor’s testimony that the pension benefit was in fact a Colorado PERA contractual obligation, the court ignored recorded legislative history of the contractual nature of the public pension benefit, the court failed to engage in the “heightened scrutiny” of the abandonment of state financial obligations required under federal case law (US Trust) and finally, the court embraced a discredited Denver District Court decision that did not bother to mention Colorado’s on-point public pension case law. In the United States, political connections can be used to summarily erase billions of dollars of government debt.

    Colorado politicians’ premeditated scheme to claw back accrued Colorado PERA pension benefits, from its inception in 2009, was to take Colorado PERA retiree’ assets outside of bankruptcy. (State governments cannot declare bankruptcy under federal law.) The only means by which the Colorado Supreme Court (in concert with the Colorado Legislative Branch) could achieve this goal was by ignoring on-point Colorado public pension case law, and all evidence in the Colorado PERA retiree lawsuit, Justus v. State. In its October 2014 decision in the case, the Colorado Supreme Court ignored the testimony of Colorado PERA’s own lawyers (in 2009) stating, on the record, that the Colorado PERA COLA benefit was a contractual obligation of Colorado-PERA affiliated employers. The Colorado Supreme Court embraced the original Denver District Court decision in this case, which failed to mention Colorado’s public pension case law, (Bills and McPhail.) Is it possible that Denver District Court Judge Hyatt and his staff (in 2011) just happened to be such bad legal researchers that they were unaware of Colorado’s on-point public pension case law that was being read by Colorado’s relatively unsophisticated PERA retirees? Not likely. This case law was indeed recognized by the forthright members of the Colorado Court of Appeals (in 2012) who found the case law to be “dispositive” in establishing the contractual right of PERA retirees to their accrued PERA COLA (ABI) benefits.

    In this article, I address the Colorado Supreme Court’s lack of independence, integrity, and impartiality. I provide a brief history of the efforts of the Colorado Legislature and the Colorado Supreme Court to escape Colorado governmental financial obligations. I comment on the recent (October, 2014) Colorado Supreme Court Decision itself, which summarily erased these billions of dollars of Colorado public sector debt. I highlight some of the numerous factual and logical errors that exist in the Colorado Supreme Court’s Decision in the case. I express incredulity at the Colorado Supreme Court’s willful ignorance of public pension administration, knowledge that was necessary to any court claiming to “seek truth” in the case.

    The Colorado Judiciary had an obligation to ensure that all evidence in the case,
    Justus v. State, was examined prior to breaking Colorado PERA pension contracts. They ruled in ignorance. This ignorance may have been willful. Rather than honoring their debts, Colorado PERA-affiliated governments will now inflate away that debt courtesy of the Colorado Supreme Court.

    My intent in writing this article is to enhance the public record of, and further document, what I consider to be one of the greatest “crimes” in Colorado history.

    Verba volant, scripta manent.

    On October 20, 2014, the Colorado Supreme Court ruled that Colorado PERA pensioners have no contractual right to their accrued public pension COLA benefits. Yet, here we have documentation of Colorado PERA’s own lawyers acknowledging, in legislative testimony, Colorado PERA’s contractual obligation to pay the PERA COLA as recently as 2009.

    December 16, 2009

    Colorado PERA officials in written testimony to the Joint Budget Committee: “The General Assembly cannot decrease the COLA (absent actuarial necessity) because it is part of the contractual obligations that accrue under a pension plan protected under the Colorado Constitution Article II, Section 11 and the United States Constitution Article 1, Section 10 for vested contractual rights.”

    Discover the true nature of Colorado state government at

    Read the complete article at

  2. New York wisely had their Health Department research the scientific reports on fracking. Now with over 400 peer reviewed studies showing harms – they had a lot to learn from. As a result, they banned fracking. In the years to come with more people getting sick and more science coming in, New York’s Governor Cuomo will be known for his wise decision while millions of Americans continue to suffer from toxic contamination of their water, air and land.

  3. The take away from NY is that officials there invoked the proper use of the precautionary principle. Typically the PP is turned on its head, but NY got it right. Is Hick’s faux commission paying any attention?

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