Colorado Fracking Votes Uphold Property Rights

By Tom Shepstone

Two interesting Colorado fracking votes indicate support for property rights and opposition to extremist regulations that amount to regulatory takings.

Yesterday’s election produced some rather remarkable votes regarding Colorado fracking. The state is a significant oil and gas producer. Fractivists, though, were able to get an initiative placed on the ballot called Proposition 112 that would have gutted the industry by requiring 2,500 feet setbacks for Colorado fracking. Farm Bureau and others responded with a proposed Colorado Constitution amendment requiring compensation to landowners for regulatory takings. The former was defeated by a wide margin, but the latter came significantly closer and, undoubtedly, contributed to that defeat. This tells us how to fight back against fractivists; by appealing to fairness.

The title of the Colorado fracking initiative, Proposition No. 112, read as follows:

Shall there be a change to the Colorado Revised Statutes concerning a statewide minimum distance requirement for new oil and gas development, and, in connection therewith, changing existing distance requirements to require that any new oil and gas development be located at least 2,500 feet from any structure intended for human occupancy and any other area designated by the measure, the state, or a local government and authorizing the state or a local government to increase the minimum distance requirement?

The full text can be found here. Needless to say, it was a radical measure. It encountered strong opposition from the existing governor and both gubernatorial candidates as well as a broad swath of farming, industry, labor and landowner groups. As of this morning with 90% of the vote counted, it had received only 43.3% of the vote, with 56.7% of voters being opposed — a 13.4% margin. This is a huge victory for common sense and reason and a good lesson for fractivists who imagine they can back-door fracking bans. Food & Water Watch spent almost $450,000 failing to get this idiocy past the voters.

The better news, though, may be the vote with respect to proposed Constitution Amendment No. 74, which said this:

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?

The Delaware River Basin Commission members ought to pay attention here because, as of this morning, the Colorado vote was 46.4% for the amendment and 53.6% against — a 7.2% margin. Given that a 55% vote is required on an amendment, the measure arguably failed by 8.6% but that’s still a lot less than the 13.4% spread for the Colorado fracking setbacks, which tells us something extremely important; that unfairness is the Achilles Heel of fractivism.

I must say I’ve noticed this, too, in the occasional conversations I’ve had with others opposed to fracking but not part of any organized movement against it. Good Americans, regardless of their views, are always receptive to appeals to fairness. It’s in our blood. This is why Lisa Baker’s Senate Bill 1189 was so immediately popular in Pennsylvania and why I hope it will soon be advanced. It’s why Tom Wolf’s proposed DRBC fracking ban is so hard for his staff to defend when they take a different position at the SRBC.

Fairness is, too, the reason landowners will ultimately prevail in court. The Colorado fracking votes show how to fight back from a practical perspective, by attaching fairness measures to fractivist initiatives, pairing them for all the world to see the tyranny involved with fractivism and demanding equal justice under the law.