The state Energy and Carbon Management Commission cut a key proposed protection for disadvantaged communities facing oil and gas drilling after a sustained pushback from the oil and gas industry, according to environmental groups participating in the rulemaking.
The commission staff Friday issued a new draft of the so-called cumulative impact rules removing a requirement that oil companies seeking to drill within 2,000 feet of homes in a disproportionately impacted community get the approval of those residents.
“The fact that so many in the industry lined up against this shows how big an issue this was and that the ECMC staff completely caved,” said Mike Freeman, an attorney with the nonprofit environmental law firm Earthjustice.
Tearing out that vital protection, which was sought by environmental groups, just a month before hearings begin gives a big advantage to the oil companies, the activists say.
“It’s really disconcerting,” said Ean Tafoya, director of Colorado GreenLatinos. “The onus was on the companies to do the right thing. It seemed really disingenuous to the work that everybody collectively did to get to that.”
The commission said in a statement to the Sun that “given the vigorous debate on this issue in parties’ prehearing statements, the staff decided to provide an alternative in this draft so that parties can provide their thoughts on one or both approaches in their responses.”
The commission said the Aug. 2 draft includes “robust protections” for residents of Disproportionately Impacted Communities or DICs.
These include a more rigorous analysis of proposed locations near homes, schools, and childcare facilities targeted data for each location and best management practices to limit impacts.
“By requiring this information, ECMC will have a better understanding of community concerns earlier on in the permitting process,” the commission said.
“The fact remains that they removed the 2,000-foot setback requirement from the August draft,” Freeman said.
The state does have a requirement that drilling pads be set back 2,000 feet from homes, schools, child care centers and high occupancy buildings.
But an oil and gas operator can drill inside that buffer if it can show it can provide “substantially equivalent protections” as being 2,000 feet away — such as enhanced recovery systems or zero-emissions equipment — or by getting approval of the homeowners or businesses inside the buffer.
In 2023, 19 of the 71 oil and gas development plans approved by the ECMC were inside the 2,000-foot setback, according to the agency’s 2023 cumulative impacts report. In 2022, 26 drilling plans were inside the buffer.
The proposed cumulative impact rules, set for a hearing in September, initially had a requirement that approval of residents inside the setback was essential — without it, drilling could not start.
The legislature in 2019 directed the commission to assess the cumulative impacts of oil and gas operations, with particular concern for disproportionately impacted communities — ones that are low-income, of color, or have vulnerable populations or have disproportionate environmental burdens.
In an annotated version of the revised draft, the commission staff said the setback provision was cut after “robust stakeholder discussions and feedback in the parties’ prehearing statements.”
In those prehearing statements, Colorado’s top oil and gas producers and the major industry trade groups objected to the provision.
The proposed rule, Chevron Corp. said in its prehearing statement, “would essentially prohibit new oil and gas development within DICs … and should be stricken entirely.”
Chevron went on to say that other parts of the proposed rule, such as requirements for enhanced systems and state-of-the-art technologies, provide “special and robust protections” for the impacted communities.
On the Western Slope, many operating areas are designated disproportionately impacted communities not as a result of environmental issues but because they are low-income communities, the West Slope Colorado Oil and Gas Association, a trade group, said.
“These lower-income areas often are dependent on oil and gas revenue, particularly for schools and special districts,” the association said. “Allowing one DIC member veto power over new development harms the revenue potential for DICs as a whole and lets the voice of one negatively impact the finances of many.”
The industry arguments are “meritless,” Earthjustice’s Freeman said. “What is really going on here is the industry does not want to have a level playing field with communities, so they are getting the commission to do their dirty work.”
The late overhaul of the rules in favor of oil and gas industry demands is a betrayal of a hard-fought compromise in the 2024 legislature, the environmental groups say. Activist groups threatening even more restrictive statewide ballot votes or legislative bills — such as outright bans on new fracking wells, or a mandatory summer “pause” for drilling operations during the worst of the ozone season — agreed to drop their efforts. In exchange, the legislature passed bills capping nitrogen oxide emissions and boosting closures of low-producing oil wells. Green groups also got a new per-barrel fee on oil and gas production to be used for transit projects and other pollution reduction. The oil and gas industry said at the time it was giving up its own ballot measures defending natural gas-fueled home appliances.
While navigating those compromises, both sides were participating in the yearslong rulemaking at the ECMC on cumulative impacts and protections for disproportionately impacted communities. Environmental groups wanted more community protections in part because they’d given up ground in the spring’s “grand compromise.”
“Environmental justice should require consent,” said Rebecca Curry, policy counsel in the Colorado office of Earthjustice. “They just totally took it out of the rules.”
The September rulemaking hearings will come at the end of a particularly brutal ozone season. There have been 42 state-issued ozone action alerts so far in 2024, with extremely high temperatures cooking oil, gas, and transportation fumes into a stew toxic to human lungs. Distant and Front Range wildfires worsened the ozone and particulate pollution with steady plumes of smoke over the metro area.
Colorado’s northern Front Range counties are under an EPA mandate to bring ozone under the 2015 70 parts per billion cap within the next few years or face more sanctions. Metro area gas stations are already required to sell slightly more expensive reformulated gasoline that is less volatile and creates fewer ozone emissions. Regional Air Quality monitors show the Front Range has violated those EPA standards numerous times already in 2024.
Michael Booth and Mark Jaffe are reporters for The Colorado Sun. Their work frequently appears on-air at KUNC 91.5 FM and online at KUNC.org.
Contact Michael at booth@coloradosun.com and Mark at mark.s.jaffe@gmail.com.
