Polis Administration Gives Oil and Gas Industry Roadmap for Expanding Neighborhood Drilling in Disproportionately Impacted Communities

October 17, 2024

Polis Administration Gives Oil and Gas Industry Roadmap for Expanding Neighborhood Drilling in Disproportionately Impacted Communities

State oil and gas agency adopts rules that undercut 2024 legislation to better protect disproportionately impacted communities and address cumulative impacts

Contacts

Andrew Forkes-Gudmundson, Earthworks, (507) 421-9021, [email protected]
Michael Freeman, Earthjustice, (720) 989-6896, [email protected]
Noah Rott, Sierra Club, (406) 214-1990, [email protected]
Natasha Leger, Citizens for a Healthy Community, (970) 399-9700, [email protected]
Barbara Vasquez, Western Colorado Alliance, (925) 980-1096, [email protected]

Denver, CO-

Colorado's Energy and Carbon Management Commission (ECMC) today finalized new rules that will allow oil and gas companies to routinely conduct fracking operations near homes in disproportionately impacted communities (DICs). In doing so, the Commission rejected the proposal of its own staff to strengthen Colorado's existing setback rule, which is intended to keep fracking at least 2,000 feet away from homes.

Today's rules were developed in response to 2024 legislation directing ECMC to minimize adverse impacts to DICs from oil and gas development. During the rulemaking, industry witnesses admitted that they plan extensive drilling in DICs in coming years, with one major company testifying that most of its future operations may target DICs. At the hearings, evidence also showed that ECMC has not been enforcing its existing 2,000 foot setback, which was adopted with great fanfare in 2020. In 2022 and 2023, fully 50% of new oil and gas wells on the Front Range were constructed within 2,000 feet of a home.

In June, ECMC staff proposed to strengthen the setback rule in DICs by eliminating an exception that has been used to approve numerous fracking operations inside the setback. After vocal objections from the oil and gas industry, the Commission dropped the proposed change and replaced it with a new loophole that allows companies to drill inside the setback in DICs if they follow certain mitigation measures and procedures.

"The Colorado legislature told ECMC to protect disproportionately impacted communities from drilling," said Andrew Forkes-Gudmundson, senior manager for state policy at the conservation group Earthworks, which was a party in the rulemaking proceedings. "Instead, the Commission has created a roadmap for oil and gas companies to drill near homes in those communities. These rules will put at risk the health and safety of Colorado communities. They also ignore the direction from Colorado's legislature."

In addition to protecting DICs, the 2024 legislation directed ECMC to adopt new rules evaluating and addressing the cumulative impacts of oil and gas development on smog, wildlife, and other resources. The combined pollution from thousands of oil and gas wells drilled in Colorado has been a primary driver of the Front Range's air pollution problems. Those wells also have caused widespread declines in wildlife habitat across much of Colorado. Evidence presented during the hearing also indicated that the ECMC staff do not have interim or final reclamation status for most wells in the state. Widespread failure of companies to reclaim their well sites can cause significant damage to vegetation and wildlife habitat, especially on the Western Slope.

The rules adopted today purport to require a "cumulative impacts analysis," but generally limit the analysis to a presumptive area only one mile around each well pad. The one-mile radius will allow the Commission to continue approving permits with only a limited analysis of their impacts, but that analysis will overlook the large majority of cumulative pollution from oil and gas drilling. Evidence at the hearing, for example, demonstrated that oil and gas operations
contribute to wildlife harms and air and water pollution many miles from a well.

"The Commission's new cumulative impact rules will allow drilling permit approvals to keep flowing, but they won't address our ozone problem or help protect wildlife," said Michael Freeman, an attorney at the public interest law firm Earthjustice, which represents Earthworks. "A one-mile boundary is woefully insufficient for many resources. You can't assess air pollution or impacts to mule deer herds without looking at the bigger picture of what's happening in the area. ECMC's new rules won't do that."

The new rules also fail to adopt permit denial criteria that would avoid impacts to people and the environment and give certainty to communities that they will not be harmed by oil and gas operations.

"The current state of cumulative impacts on people, the environment and wildlife are the result of ECMC's focus on mitigating harms from fracking rather than avoiding them as required by Colorado law," said Natasha Léger, Executive Director of Citizens for a Healthy Community. "The Colorado legislature has made clear in statute that ECMC's first duty is to avoid adverse impacts, and only then to minimize and mitigate impacts that cannot be avoided. In this rulemaking, the Commission skipped over the avoid requirement: it refused to adopt rules that would deny permits where key thresholds for air and water pollution, wildlife habitat disturbance, or public health standards, are exceeded."

Western Colorado Alliance (WCA), a community group with chapters throughout much of the Western Slope, was also disappointed with the rules. Barbara Vasquez, a member of WCA and a resident of rural Jackson County, Colorado stated, "This rulemaking refused to answer the basic question: How damaged must the wildlife habitat, watersheds, or air quality be before we stop approving new oil and gas development? The new rules require oil and gas operators to produce additional reports but place no limits on how much cumulative damage will be allowed by ECMC before they say 'No.'."

The rules do create some new procedural protections that will require additional public notices and public meetings before companies drill in DICs, and add measures for ECMC to assist with enforcement of air pollution "intensity" regulations adopted by other Colorado agencies. The intensity regulations limit the amount of ozone-forming pollutants a company can emit per unit of oil and gas production, but do not limit the total volume of pollution the company can emit.

The intensity standards allow companies to increase their total air pollution if they are also ramping up oil production, but may reduce air pollution if oil production remains stable or decreases.

"The procedural measures for disproportionately impacted communities, and the air pollution intensity regulations, are steps in the right direction," said Forkes-Gudmundson. "But without substantive protections for Colorado communities and wildlife, and quantitative limits on cumulative air pollution, these regulations fall far short."

"Gov. Polis' ECMC has once again failed Coloradans and legislative mandates meant to protect us from severe pollution," said Margaret Kran-Annexstein, Director of the Colorado Sierra Club. "While Polis talks a big game about his environmental actions, this open-ended rule, with all significant permitting decisions left discretionary, will allow the oil and gas industry to continue
hurting marginalized communities and fragile ecosystems. We hope the ECMC will use more tools to limit pollution, but the Polis administration will need to actually implement real, meaningful regulations if they are serious about doing right by communities."

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