All posts by Rick Casey

Boulder County, General Environmental Reference, Local government (city & county), New Ft Collins O&G regs, New O&G regs for Larimer Cty, SB-181

The story of how Boulder County succeeded in defeating Extraction Energy’s attempt at a forced pooling

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This story below comes from John McDonaugh, whom I asked if I could publish his comments on this issue, which was announced in a press release by Boulder County on May 4, 2023, which can be read at:

Boulder County Declares Victory on Highly Contested Application to Drill County-Owned Minerals

This is why the Larimer Alliance continues to encourage Larimer County to take a similar tough stand with the O&G industry. We all know we must transition away from fossil fuels — the sooner the better — yet this industry continues to attempt to new drill new wells — even attempting to force Boulder County into a forced pooling. So here is the back story on how Boulder Country succeeded in this particular case. –Rick Casey

Yes, Boulder’s success demonstrates the power and necessity of hope and commitment. However, their victory in this hard-fought battle required more than that:  Boulder played smart. They played tough. They didn’t acquiesce to half-measures or settle for political green-washing or low-hanging fruit (battery lawn tool rebates, anyone?).  They utilized a multi-prong approach that combined education, direct action, political pressure, creative regulatory drafting, savvy legal maneuvering, and “bottom-line” awareness with a relentless, unwavering focus on their ultimate objective:  Prevent O&G development in Boulder County.  

Take a closer look at the sequence.  Extraction Energy initially (c. 2017) pressed for 32 O&G wells and ancillary facilities to be located on Boulder County land.  Boulder firmly opposed the project and supported the enactment of SB 19-181 which gave local governments broad authority to regulate O&G development. Once SB 19-181 became law, Boulder County promptly undertook drafting and enactment of well-crafted, extremely powerful, local O&G regs.  Once in place, those strong local O&G regs undercut Extraction’s legal position, and rendered the proposed in-County O&G development (and Extraction’s battle to approve it) infeasible and uneconomic.  

Extraction Energy then attempted to develop Boulder County’s O&G resources via directional drilling from the Blue Paintbrush pad located just on the Weld County side of the Weld/Boulder County line.  Extraction figured that since SB 19-181 only allowed local governments to regulate the surface impacts of O&G development (and Weld County was, as always, in favor of the development) they could avoid compliance with the Boulder County regs by moving the O&G surface facilities outside Bounder County’s jurisdiction.  However, regs aside, Extraction still needed to acquire the subsurface mineral rights below Boulder County land.  Once again, Boulder County and its residents held firm to their objective and overwhelmingly rejected Extraction’s mineral rights purchase offer.    

But Extraction Energy wasn’t finished.  They next went to the COGCC seeking a “Forced Pooling” order which would require Boulder County to allow Extraction to develop the minerals as part of Extraction’s broader reservoir development plan. Boulder County and its residents then fought Extraction’s Forced Pooling attempt on multiple fronts:  politically (via proposed anti-FP legislation), administratively, legally, and in the “court of public opinion”.  They ultimately prevailed (at least until another oil company effort comes along).  However, Boulder County leaders and residents now know they can — through focused diligence, savvy strategies, and hard work —prevail against O&G industry overreach.  Equally important, so do the oil companies…who will likely look elsewhere for “greener pastures” and “easier pickings” the next time around.  Why play the Kansas City Chiefs when you can play the Chicago Bears? 

Boulder County and its residents showed what it takes. Playing against oil companies and their political enablers is tough.  It’s often unpleasant.  It’s taxing on multiple personal and professional levels. The other side is smart, well-financed, well-connected, and extremely tenacious. They will press their objectives, irrespective of the broader public good, until they encounter firm and effective resistance. The knife goes in until it meets steel. That’s not “cynicism”, it’s reality.  

If we environmental advocates truly do our jobs, some folks — including some folks in power and, sadly, even some so-called “environmentalists” — won’t like us very much.  However, if we remain true to our course, play smart, build and leverage effective coalitions, and call out industry BS and political inaction when necessary, they will respect us and will fear what we may accomplish. And, to my mind, that’s far more important to our world, to our community, and to the most vulnerable among us. 

If a community and its leaders settle for empty promises, election-year greenwashing, unrelated low-hanging fruit (e.g. a few more bike racks, EV chargers, lawn tool rebates), and other placebos that won’t move the climate change, ozone, and toxic emissions needle, they will get exactly what they deserve.  The oil industry will see to that.  

Boulder County and its residents showed us the way. Let’s heed and learn from their example. 

Thanks for all you and LA have done and continue to do in our “neck of the woods” on this critical issue.  Keep up the good fight!  

—  John McDonagh

John is another Old Retired Guy who lives in Fort Collins (and a former state government enforcement attorney, oil industry regulator, oil industry senior counsel, and Federal agency senior environmental counsel). 

Air quality monitoring, APCD, COGCC, Environmental damage from O&G, Ozone pollution in Front Range

WHY CAN’T THE STATE GET ITS FACTS STRAIGHT?

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Spoiler alert: there is a better way to monitor our air pollution than modeling it…

A rather alarming announcement was made recently by the top agency that monitors our air quality for the state:

Corrected ozone data estimate fracking and drilling produce more emissions than every Front Range vehicle

Aside from the misleading title (“every Front Range vehicle”?), the article zeroed in on the foremost burning issue about air quality in the Front Range: what is causing our severe ozone pollution, and how can it be corrected?

Published January 5, 2023, by Colorado Public Radio, the article states that the Air Pollution Control Division (APCD) underestimated the projected pollution in 2023 that will be produced by the O&G industry by no small amount: about 100%, more or less. The extreme number resulted in some extreme reactions from actual people: the director of the APCD, with egg on his face, nonetheless put his best face forward, saying they will “make lemons out of this lemonade,” though I think he was either misquoted or meant that the other way around. “We will get a stronger implementation plan because of this,” he solemnly vowed.

The other extreme reaction, which swiftly came from the industry side, as if dancing together in rhythm, came from the Colorado Oil & Gas Association (COGA). Their director pounced on the news, questioning the accuracy of the data. “We need accuracy, not double-counting!” was the shrill accusation. Whatever…

The data correction was severe enough, however, to justify that the CDPHE, the state department within which the APCD is located, file a formal request to change their recommendation to the Air Quality Control Commission (AQCC), the governor-appointed panel to which the CDPHE reports to about our air quality, and that they be allowed to modify their recommendations for their State Implementation Plan (SIP). These data are also required to be filed with the EPA, lending yet more weight to the issue.

Though somewhat difficult for my layman mind to decipher, the formal language in that request seems to say they underestimated emissions from the O&G industry, and they’re going to take another crack at it. The upshot is that the new estimates show the O&G industry producing significantly more GHG, and the ozone precursors, than vehicles…which is why COGA, the trade organization representing the O&G industry in Colorado, is so upset. No one likes being the bad guy.

However, the request did not discuss what might be done as a consequence; but that might be what the APCD director meant about making lemonade out of lemons. Or something like that….it’s all pretty vague and nebulous to the average layperson I should think, as it amounts to two traditionally opposed organizations pointing fingers and squabbling over numbers that none of the public really has access to anyway.

But there is a better way: it’s called direct measurement.

A model, of course, is simply an estimate of something. In this case, the APCD uses models to estimate our projected air pollution (as in, just how many severe ozone warning days are we going to get this summer?) The tempest-in-a-teacup squabbling is over the data that gets fed into the models; but, again, these data are themselves estimates, as none of these state agencies have the resources to go out and keep tabs on all the O&G operations throughout the state. In effect, the APCD is dependent on the industry to give them an honest answer about the number of their operations; which has been, of course, the long term strategy of the O&G industry in this county since the beginning: to be self-regulating, and to never allow even a hint of legislative encroachment into their dealings. Notwithstanding that the first blow to that attitude took the form of the US vs Standard Oil, when Teddy Roosevelt broke up the trusts that were dominating all major industries during the Gilded Age. Ever since, the O&G industry has waged legal and political battle to prevent regulation to affect their bottom line. And, as we have seen, the major oil companies have even been waging a disinformation campaign about the need to take action on climate change for decades…but I digress.

With the passage of SB-181 in Colorado in 2019, that battle has been slowly shifting more power to local authorities to regulate O&G operations in their jurisdictions, and thereby loosening the grip the industry previously held over centralized regulation such as by the COGCC. Now, COGA must not only contend with the COGCC, but with the CDPHE and APCD as well, which is a battlefront that COGA is not as adept at confronting. Because now the issue is the health and well being of people and their environmental quality. And the more that this health and well being can quantified by direct measurement, the sooner we can get to the bottom of the issue — and stop the pointless ping pong match of watching one side blaming the other over whose data is accurate.

The direct measurement of our air quality is what is needed; and the only technology that is capable of discriminating between the ozone precursors that originate from vehicles and those that originate from O&G activity — because they are distinctly different chemicals — are the monitors made by Boulder AIR (see bouldair.com)

Currently operating in eight sites scattered from Commerce City to Erie, in a combination of fixed and mobile stations, the data from this technology has no comparison to anything operated by the CDPHE. The ozone monitoring stations maintained by the state can only detect ozone after it is ozone; they are useless for detecting the sources of the ozone precursors. But this is precisely what is needed; because how in the world can an effective policy for reducing our ozone pollution be conducted if the real cause of the ozone is not identified?

The Larimer Alliance has been asking the Larimer County Commissioners and the Fort Collins City Council to please consider installing Boulder AIR monitoring stations here; to no avail so far. However, we are the prime target for the pollution from Weld County, where there are 18,000 plus active wells. The state ozone monitors that are here, one on the CSU main campus and one the west campus out LaPorte Street, have registered some of the highest ozone readings in the state, I’ve been told, which I would like to verify someday. This is due to the fact that the prevailing winds push the polluted air from Weld County up against the foothills to our west. It would be extremely helpful if we could get two such stations, one positioned east and west of Fort Collins, to verify the amount of pollution we are experiencing, and where it is coming from. Longmont has installed two monitors in their city; why can’t Fort Collins do the same?

To add insult to injury, the CDPHE has not even acknowledged the data that Boulder AIR has been collecting — ever since the first station went into operation at the Boulder Reservoir in 2015. These data are made available in near-real time on the Boulder AIR website, and is available for the state to use. But what does one find on the CDPHE website? Here’s a screenshot:

Screenshot from https://cdphe.colorado.gov/ozone-and-your-health, taken 1/29/23

Does anything here tell you what is causing the ozone? Barely: the implication from the left panel is that you, the public, is the primary factor identified as the cause. YOU are the guilty party….indeed. This is partly true, since the precursors coming from vehicles are indeed caused by people and commercial vehicles out driving around; but there is no discussion of how the O&G industry is the other significant caues — only a picture of a pumpjack to indicate their contribution.

So this is what needs to change, at a minimum:

  • the CDPHE needs to give equal time to the O&G industry’s role in our ozone pollution problem on their website and in their regulatory announcements
  • the CDPHE & APCD need to acknowledge the data collected by Boulder AIR stations as superior to anything they have, and start to use it to identify the true sources of ozone precursors by direct measurement

If the COGCC, CDPHE & APCD were really to take the bull by the horns, and fully live up to the spirit of SB-181 — to protect the health and well being of people and the environment over fostering the O&G industry — then they would build an entire array of Boulder AIR monitoring stations all along the Front Range, from Weld County in the north to Pueblo in the south, and start to use their data to maximum effectiveness…and cease this petty squabbling with COGA over models and estimates that is simply not helping.

Air quality monitoring, APCD, Broomfield City & County, Environmental damage from O&G, Ozone pollution in Front Range

BROOMFIELD STAFF WANTS TO REDUCE MONITORING — WHY?

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It has come to my attention that the city staff for Broomfield City and County Council is going to be proposing a dramatic cutback in their real-time air quality monitoring station, the Soaring Eagle station. This would be a big mistake, in my opinion, and deserves more public input. This is going to be discussed at the 6pm meeting on Tuesday, December 13, 2022.

I attended a tour this state-of-the art monitoring station on September 23, 2021, given by Detlev Helmig, and wrote this blog post about it: THE BOULDERAIR TOUR ROCKED! The tour was organized by Broomfield Councilperson Laurie Anderson, and was attended other members of the Larimer Alliance, LOGIC, and other local activists and volunteers. It was an in-depth explanation of the sophisticated technology employed, and how it provides vastly better data than other comparable monitoring stations because 1) it is continuous, real-time data, recorded and published literally within minutes of measurement, and 2) it can simultaneously monitor a panel of targeted chemicals at levels far more sensitive than other comparable monitoring technology.

Other canister-based monitors are not real-time, and rely on periodic manual collection — like your neighborhood garbage trucks — to come by and pick up the canisters…which then get shipped to a lab…which then get sampled and processed…and eventually the results are sent back. This means the measurements can be DAYS OLD before they are analyzed; besides which, a canister grabs one, brief, isolated sniff of air out of the constantly blowing and shifting wind. How reliable is such an approach to air quality monitoring? Answer: Not much!

What the Front Range really needs is to have the state offices of CDPHE and its subdepartment, the AQCD, (see their website here) to create an entire array of such monitoring stations for the Front Range, from Fort Collins down to Pueblo, so that we can really know what is in our air. For without precise measurements, we are just flying blind — and policy makers cannot know what air quality policies should be developed and enforced, and where.

What percentage of our ozone precursors are due to vehicles and what percentage are due to O&G operations? Our current knowledge of this is scant; try and find it on the CDPHE/AQCD website….good luck with that! The closest I think you will find are these “air quality index reports”, which are useless for answering these burning questions needed for an accurate policy response.

I urge you to express your opinions about this to the Broomfield City and County Council prior to their meeting on 12/13/22.

To send your comments to the Council, use this email address: council@broomfieldcitycouncil.org

To watch the Broomfield Council meeting, see here.

City of Fort Collins, Local government (city & county), New Ft Collins O&G regs, SB-181

TALKING POINTS ON WHY THE PROPOSED FOCO O&G REGS ARE DEFICIENT

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The following was developed by the Larimer Alliance Steering Committee in response to the draft O&G regs being considered by Fort Collins City Council.

The proposed regs on the city website can be found at: 

https://www.fcgov.com/cityclerk/codes.php

The Larimer Alliance has reviewed these in detail, which is provided in a separate document. What follows is a synopsis meant to assist the public in understanding why we believe the regulations are deficient in their current form, and why the public needs to weigh in with their comments about this as well: 

Point #1: Vast Expansion of Allowable O&G Operations and Facilities within City Limits:

The draft O&G regs specifically allows a wide range  O&G operations and facilities in industrial zones. This includes seismic exploration, drilling, fracking, production, processing facilities,  drilling waste management, and pipeline construction.

Point #2: O&G Pipelines Allowed in All Zoning Districts:  

The draft O&G regs specifically allow the construction and operation of O&G pipelines in any zoning district of the City – including single, multi, and high density residential neighborhoods.   

The regs provide only minimal neighborhood notice of planned pipeline projects and virtually no ability for residents to effectively contest the decision.  

Point #3: Pipeline Setbaks Inadequate to Protect Public Health & Safety: 

The draft O&G regs allow pipelines to be constructed with setbacks as little as 50 feet from homes and other occupied dwellings. There is no requirement that the pipelines be buried. Additionally: 

  • The setbacks are measured from the pipeline to the occupied dwelling’s wall — not to the homeowner’s property line.  
  • These setbacks for pipelines are much less than the current recommended standard of 2,000 feet. This is not acceptable, as pipelines can leak or rupture; and the impacts of toxic and combustible gas or oil leakage can have just as much adverse  impact as an O&G operation, which has a standard setback of 2,000 feet. 
  • The 2017 Firestone tragedy, where natural gas leaking from a severed Anadarko Petroleum pipeline led to the explosion of a nearby family residence killing two family members, vividly illustrates the risks inherent in inadequate pipeline setbacks. 
  • Pipelines, either buried or above ground, should have the same setback.

Point #4: Rush to Adoption Limits Public Awareness and Participation:  

The timetable for public input and discussion has been minimized to the point of near elimination.  Few members of the public are even aware of these critical regulations; and the City is attempting to rush through their adoption during the busy Holiday Season when residents’ attention is focused elsewhere:  

  • This rush to adopt seriously flawed regulations is unnecessary and inconsistent with open, participative government.  In a matter of this importance, the City should attempt to work in conjunction with its residents, not against them.  
  • Rushing adoption and limiting public participation also go against the spirit of SB 19–181, which emphasized local control over the Oil & Gas development and expressly prioritized the protection of public health, public safety and the environment. 

Point #5: The Regs Place Industry Interests Above Public Health, Public Safety, Community Livability and the Environment:  

The detailed wording of the draft O&G regulations reflects a consistent pro-industry perspective on multiple fronts.  Examples include:  limited opportunities for public notice and input in specific facility and pipeline siting and operational decision; the express allowance of pipelines in all zoned districts; the broad range of O&G operations and facilities to be allowed within industrial zones (many of which adjoin residential subdivisions and popular community gathering sites; and express provisions for altering zoning limitations to allow a wide range of these same O&G operations in other (non-industrial) zoned areas.   

  • Because the draft regs are so favorable to the O&G industry, the City’s adoption of them  without significant modification would be tantamount to allowing the industry to write its own playbook for expanding O&G development within Fort Collins.  
  • This goes entirely against the spirit of SB 19-181 – which sought to put an end to allowing the O&G industry to regulate itself, and sought to ensure that protection of public health, public safety, and the environment was accorded primary consideration in O&G development decisions.

All this goes directly against the spirit of SB-181, the new state law that changed the mission of the COGCC from fostering the industry to protecting the health and safety of people and the environment, AND empowering local governments to pass their own rules on how the O&G industry should be governed within their jurisdiction. As written, these proposed regulations diminish the ability of city government to regulate O&G operations, when they should be strengthening that ability. 

Very recently, in response to the strenuous objections raised by Larimer Alliance members and others, City staff have indicated that they will recommend changes to some, but not nearly all, of the regs’ most problematic provisions.  HOWEVER, we have yet to see any of these supposed changes in writing.  Moreover City Staff anticipates that any actual revised language won’t be made available until AFTER the City Council’s “First Reading” scheduled for Dec. 20, 2022. While we appreciate City Staff’s verbal commitment to address a small number of our concerns, no legitimate reason exists for rushing the regulation adoption forward through Council without giving the public a chance to review the actual regulatory language. 

Our Specific Recommendations:  

The Larimer Alliance believes that the entire draft regulation package evidences such a significant pro-industry slant and that the City’s adoption process, accomplished mainly behind closed doors thus far, has failed to seek and incorporate adequate public input.  Thus, our recommended course-of-action would be for the City to withdraw the current draft regulations and to initiate an open, inclusive pubic process that provides more than token consideration of public health, public safety, community livability, and the environment.  If this overall “re-think” is not achievable, the City should, at a minimum, make the following changes:  

  • Prohibit pipeline construction in all residential zones.
  • Revise the pipeline approval process to provide for full public notice, hearing, and Zoning Commission evaluation and approval – as opposed to the minimal Basic Development Review process provided in the draft regs. 
  • Limit the wide range of O&G operations the regs would allow in Industrial Zones – in particular, eliminate seismic operations, Exploration & Production waste management operations, and O&G storage tank facilities.  
  • Require continuous air emission monitoring for VOC and methane emissions at the facility fenceline; and leak detection for tanks and pipelines.  
  • Require disclosure of fracking/drilliing water supply sources and volumes; and disclosure of plans for drilling fluid and “produced water” treatment and disposal.
  • Require O&G operators to provide up-front financial assurance guarantees, such as bonding or reserved trust financial set-asides, to ensure that both operations and decommissioning activities are performed in a manner that protects public health, safety, welfare, and the environment.
  • Strengthen the regs’ project approval provisions to require the City to examine and address the cumulative impacts associated with any proposed O&G operation as part of the approval process. 
  • Allow additional time for more public comment, discussion and oversight of the passage of any new O&G regulations.