Guest Post: Amendment 74 ― Deceptive, dangerous and anti-democratic

Danger! photo illustration by Diana Turner, Creative Commons via Flickr

Proposition 112 has powerful fossil-fuel interests running scared. To protect their profits, they’re willing to destroy the ability of Colorado state and local governments to function.

Rather than accept reasonable voter-imposed limits on its ability to drill anywhere, the industry has recklessly planted a “poison pill” constitutional amendment ― Amendment 74 on the Nov. 6 ballot.

Amendment 74 reads: “Shall there be an amendment to the Colorado Constitution requiring the government to award just compensation to owners of private property when a government law or regulation reduces the fair market value of the property?”   

If passed, Amendment 74 threatens to bankrupt cities and counties and cripple governments’ ability to regulate everything from the location of marijuana dispensaries to historic preservation to toxic air and water pollution.

This isn’t speculation. Oregon and Florida tried something similar and the aftermath wasn’t pretty.

Two Georgetown University legal scholars carefully examined those states’ experiences and found these measures have:

  • Eviscerated regulatory authority and rarely resulted in actual financial payments to property owners,
  • Primarily benefited litigious and well-heeled special interests, at taxpayer expense. Because it takes deep pockets to bring this kind of litigation, the main beneficiaries of the laws were Oregon timber companies seeking to subdivide lands or avoid environmental protections and large Florida real estate developers,
  • Increased land use conflicts by undermining the influence of neighbors, through local governments, over how and where their communities grow.

Colorado citizens successfully petitioned to put Proposition 112 on the ballot, frustrated by the inability of legislators, courts and agencies to keep their neighborhoods from turning into industrial zones as fracking rigs popped up next to their backyards and their children’s schools.

Proposition 112 would require that new oil and gas operations be at least 2,500 feet from homes, schools and waterways.

Big oil, disguised as a group called “Protect Colorado,” has already spent at least $35 million trying to defeat Proposition 112. But because money doesn’t always beat democracy, Amendment 74 is the industry’s nuclear option.

Amendment 74 has received at least $8 million from that same oil and gas front group, Protect Colorado. These companies are ready to burn down Colorado’s ability to have any health and safety protections or zoning regulations rather than lose their ability to put fracking rigs wherever they please.

That’s why there’s bipartisan opposition to Amendment 74 from leaders as diverse as Democratic Gov. John Hickenlooper and Republican Colorado Springs Mayor John Suthers.

There’s a lot of existing law out there to help courts figure out when a regulation goes so far as to, in effect, take property.

Amendment 74 would upend those laws by amending the constitution to include a provision that property owners must be compensated when their property is “reduced in fair market value by government law or regulation.”

By providing no limits on what reductions require compensation, this would lead to regulatory chaos and an explosion of litigation.

Marijuana rules prohibit me from turning my house across the street from an elementary school into a marijuana dispensary? Pay me. Zoning laws prevent turning agricultural lands into subdivisions? Pay me. Clean water requirements prohibit me from dumping as many toxic chemicals as I want into the South Platte? Pay me.

In a 2001 decision, the Colorado Supreme Court set an important threshold on the use of the state constitution’s “takings clause” to make claims against zoning laws and health and safety protections. This approach is consistent with the U.S. Supreme Court and other state courts around the country.

Amendment 74 would throw all of that out the window and make it easier for fossil-fuel and other industries to win damages for any regulation they don’t like, bankrupting local governments and substantially undermining environmental and land use protections.

“The upshot is that government will in most cases stop regulating because it is simply too costly to do so,” says University of Denver law professor Justin Pidot. “They are deeply anti-government, anti-regulatory measures that are very consciously designed to prevent environmental regulations, public health regulations, zoning and the like.”

Proposition 112 is a prudent measure to protect the health, safety, water quality and home values of Coloradans, an important step toward a healthy and prosperous energy future for the state.

Amendment 74 is a back-door attack on necessary oil and gas industry safeguards, and it assaults fundamental principles of our democracy.

Property rights don’t include the unfettered right to poison others. Communities must have a say in protecting public health and shaping how we all live, together, on the land.

The Colorado Independent occasionally runs guest posts from government officials, local experts andconcerned citizens on a variety of topics. These posts are meant to provide diverse perspectives and do not represent the views of The Independent. To pitch a guest post, please contact or visit our submission page