In the wake of several state court decisions ruling that municipal bans or moratoria on hydraulic fracturing, or fracking, are preempted by state laws, anti-fracking activists are now turning to state ballot initiatives in an attempt to ban or restrict the practice. Fracking refers to the process by which water, sand and a small amount of chemicals are injected at high pressure deep underground to create fractures in dense rock, thereby increasing reservoir permeability to allow oil and gas to more easily flow to the wellbore. The process, in combination with horizontal drilling, has dramatically increased oil and gas production in the U.S. over the past decade.
As fracking operations have increased in the U.S., so has controversy surrounding the practice. Environmental activists assert that the practice causes groundwater contamination, despite multiple studies to the contrary, including EPA’s interim study on fracking’s impact on drinking water sources. Those concerns led the states of Vermont and New York to impose bans on fracking. Beginning in 2011, municipalities also began taking action to restrict fracking, a practice traditionally regulated by states. By some estimates, more than 200 municipalities have imposed bans or moratoria on fracking. In Colorado, local bans and moratoria were overturned by the Colorado Supreme Court, which ruled last year that the restrictions were preempted by state law. In 2015, the Texas legislature passed a law that prohibits cities and towns from passing ordinances to prohibit fracking, effectively banning fracking bans like the one the city of Denton passed in 2014.
Environmental groups are now focusing on state ballot initiatives in an effort to restrict fracking. In Michigan, a proposed initiative to ban fracking in that state failed to make the November ballot. In Colorado, anti-fracking activists submitted nearly 200,000 signatures earlier this month in an effort to place several anti-fracking initiatives on the statewide November ballot, including one initiative that would give local governments the authority to restrict or ban fracking and another that would establish a minimum 2,500-foot setback for oil and gas operations. The state has until September 7 to announce whether the measures meet the threshold number of signatures to appear on the November ballot.
According to a Colorado Oil and Gas Conservation Commission analysis, the setback measure would effectively ban oil and gas drilling across 90% of the state. Similarly, a recent study by the University of Colorado found that the setback initiative would result in a reduction of $7.1 billion in GDP and the loss of 54,000 jobs in the first five years. In response, two coalitions of business groups – Coloradans for Responsible Reform and Protect Colorado – have come out in opposition to the proposed ballot initiatives. Many view the ballot initiatives as the last, best chance to impose fracking restrictions in Colorado, and anti-fracking activists and oil and gas operators in other states that allow ballot initiatives will be closely watching the results of the Colorado initiatives.