 Hello everyone. This is Capital Conversations. I'm Marcia Martin and I am here with Colorado Senator Mike Foote who represents Longmont and other less interesting places in the state legislature. Senator Foote was a sponsor last year of the landmark Legislation Senate Bill 181 which returned a great deal of local control over oil and gas regulations to municipalities and counties. And we're here to talk with him today even though he's still working for us in the legislature. We're here to talk to him about how that's panning out and where we are in the changes of rules that have to follow on to that in order to implement and so Senator Foote why don't you tell us where we are. Tell us you want me to tell about 181 and that's fine I can talk forever about that bill. Well you can actually talk for 10 minutes or less. Don't talk forever about it but it's an expansive topic and I'm happy to talk about it and I was really pleased that we were able to pass the bill last year. It was a culmination of a lot of efforts from a lot of folks in Boulder County. Boulder County legislative delegation, residence groups and a lot of work from local officials as well to make sure that we passed it so I want to make sure that to give credit where credit's due but you know we did pass the bill last year and now we're really in the implementation phase of the bill which means all the stuff that we put down on paper last year now has to be implemented by the state agencies and local governments and so there's really two tiers to talk about I think one is how local governments seem to be implementing Senate Bill 181 and the other is how the state seems to be implementing Senate Bill 181 and so I'll talk about those just briefly and then we can go on to the next question. And really the short answer to the locals is that it really depends. Adams County has come out with rules and regulations. Broomfield is actively working on theirs. I know Boulder County is working on theirs. Other localities are working on theirs. Aurora did an operator agreement with a big operator down there that in my opinion really didn't take much advantage of Senate Bill 181. Commerce City has been working with operators there which I don't think are really taking very full advantage of Senate Bill 181 so it's really dependent on the locality which actually is kind of how it usually works. I mean there's some city councils or county commissions that are going to take full advantage of the law and some that just aren't and I wish it was different and certainly if they had a different makeup of their councils maybe they would. But the point of the bill with local control is to make sure that those localities that did want to go a lot further and did want to make sure that they protected health and safety much more than the state was apt to do that they could take advantage of that. I know that Longmont City Council has talked about it in that regard as well. Boulder County has done that as well and just to the south of us with Broomfield even though they're in a different county but what they do affects us as well. They've done that. They certainly with their newest council they really focused on taking full advantage of Senate Bill 181. So that's on the local level and then on the state level we're still in the midst of a lot of rule makings where the state actually has to put more pencil to paper to come up with even more specific rules about what covers the oil and gas industry and how they're going to implement what the legislature told them to do in Senate Bill 181. They've done I think three rule makings at this point but the major one is actually coming up and it's going to be a rule making that deals with the mission change of the agency which is a could be a big deal. It deals with cumulative impacts of oil and gas operations so you know if you have one well in one location that's a lot different than wanting to put in ten wells where there's already a hundred wells in that general area so that's cumulative impacts and then alternative site analysis and what's required to do that. And so that's in my opinion that's going to be one of the biggest ones that's happening I think maybe mid-April or so is when we'll have the results of that. So that's just it's not starting out but the formal process of it is just getting underway and we'll have a good idea of how the state intends to really formally implement 181 but that won't be the end of it because in June there's going to be a professional commission that's going to be appointed to the COGCC with a lot of new people at least on the commission and they're going to undertake more rule makings on things that they haven't been able to cover yet. So it's still kind of to be determined and that's not even to consider what's happening with the Air Quality Control Commission on the Department of Public Health and Environment side. A lot of alphabet soup here and there's a lot of state agencies to keep track of but the bottom line is based on Senate Bill 181 they've been quite busy actually to try to implement what the legislature told them to do and generally speaking I've been pretty happy with their direction. Although like anything I can't say I agree with 100% of their decisions but I think it's been much different than what we've seen coming up to 2019. Prior to 2019 and Senate Bill 181 we saw a commission that was pretty much in the business of promoting the industry and allowing them to drill pretty much where they wanted to. They wouldn't say no to permits and that was ingrained within their culture and what we've tried to do with Senate Bill 181 is to change that culture and that's not something that happens overnight but they have leadership there that has bought into that. We have a governor that has bought into that in my opinion and the legislative direction has been pretty clear so we just have to see how it works out but it's not a very quick process. I know that people probably agree with me when I say that you would as well. It's not happening overnight. I was getting ready to point out that it seems like Governor Polis signed Senate Bill 181 in about April of last year and so now you're saying yeah the cumulative impacts rulemaking is going to come up a year later. That's not as quick as some people have wanted for sure and I know that there's been requests to put all permits on hold until all the rulemaking are done and so I know that's out there and so I'm sure that some of the viewers are going to disagree with my assessment and think that they wish it would have gone faster or we would have paused the permits and I understand that perspective completely. Those are two sides of the same of the same coin right pausing the permits means going well they're right it's the same thing pausing the permits means freeze everything until we have all the rules in place right which is the end result of make the rule makers go very much faster. Yeah and they didn't do that although the number of permits that have been granted has has gone down it's about half of what it was before but I know from a climate perspective and I know from a health and safety perspective there's some that feel that that's not good enough and so I get that the thing about Senate Bill 181 is I think that it pushes us in the right direction and it's it's it's good in that regard but it's not perfect I mean it's legislation so it's never going to be perfect. You heard to say in the Capitol building during the time that 181 was being debated that this bill is not intended to enable local fracking bans now I ask somebody else and they said gee what does intent mean but what did you mean well so I never actually said that okay because I've always when when the bill was debated we purposely kept that out of the bill we did not address that in the bill at all and so there's nothing in the bill about you can or can't do fracking bans and I see that was on purpose because if you address it one way or another the bill doesn't pass and so that is kind of an a question that was not answered by Senate Bill 181 so it was a deliberate ambiguity not an accidental one or not and not a matter of intent we had to leave it out where else the bill would have just been caught up and who knows what I mean it already was in order to pass Senate Bill 181 or any legislation of this size that makes this kind of change it's a tightrope that you have to walk and so we just and this was the same with setbacks as well you know I'll just go into that because we deliberately left any kind of setbacks discussion out of the bill there's the word setback is not in the bill so we left that out now of course that doesn't mean that local governments can't deal with setbacks clearly they can but there's just some topics that we're going to make it so that whichever whatever we did was going to was going to fuel the fire against the bill and we just wanted to try to minimize that so Senate Bill 181 is silent on local fracking bands it's silent on setbacks and that was just part of how we did the bill there's a little there's little difference in setbacks because that's a way that municipalities regulate every damn thing you know and so it would be really hard to make any kind of an assertion that that this bill because it's silent on setbacks doesn't allow a municipality to use a setback as a means of regulation on the other hand bands are commonly acknowledged to be different yeah and so that's a good point I should be clear that there was some discussion and certainly part of the debate was should there be a mandated minimum setback in the bill that's law so if you look at Proposition 112 in 2018 it mandated a 2500 foot setback that failed as we know but there was questions should we try to put in a thousand foot setback or a 2500 foot setback or whatever and that was where we stayed silent was along those lines so I think I wanted to make that clear because your question was a good one we didn't we didn't have any illusions that setbacks weren't going to be addressed from the local government side so hopefully my answer didn't create that impression and if so I hope that cleared it up yeah yeah that's fine that's what you're here for okay so Longmont at the moment doesn't have a fracking problem although we might have a fracking problem after Proposition Amendment 300 the long famous Longmont fracking ban that might have been one of the ancestors of 181 was overturned in the Supreme Court we set back to work and said all right well we can't do that what can we do and what we could do is as broom field and some of the other municipalities that you mentioned have done negotiate with the owners of our mineral rights and get them to move their drilling points outside the city because we can't regulate anything outside the city but we can do that and we were very successful in that in the sense of getting all the drilling point accesses contractually required to be at least 2,000 feet outside the Longmont city limits and 2,000 feet in terms of the health impact data for adjacency to a fracking site is a magic number you know the ill effects go way down right so we're happy about that but then the thing that happened is another organization has brought suit against Longmont and let me pause to say that the expenditure of that Longmont went through between defending the original fracking ban and then defending some regulatory lawsuits that followed that that we actually won and and were part of part of the leverage that allowed us to negotiate this deal we spent in just in terms of external counsel about $360,000 of taxpayer money to get this done and by the time you you know the sunk costs in the city administrative costs paying the city's employed attorneys and everything it's coming up to $400,000 to get Longmont to the point where it is today and then a future payment of about $3 million in deferred royalties that we're going to put back on the drilling companies in exchange for their their cooperation so Longmont spent a lot of money getting fracking out of the out of town and now someone comes back and says we're going to resurrect this fracking ban and interestingly enough they're suing Longmont to require us to enforce it if they win right but we don't have a fracking problem it's all outside our jurisdiction so my question to you is how much is Longmont supposed to pay so that everybody else can have a fracking ban I have no idea you know I I can't I can't speak for those that made the decision to file the lawsuit you know they did it for their reasons I know their argument is that the people of Longmont voted overwhelmingly for the fracking ban so it should actually be enforced but I understand your perspective too which is that like a local government should do and certainly local governments can do even much more under 181 we kind of address the issue and so it's more of just a practicality versus the ideal situation I suppose so I I get that discussion you know I I wish that it didn't come down to this in the first place I wish that actually the voters that voted for fracking ban could have been honored and that there didn't have to be a lawsuit that ended up going to the Supreme Court that might have solved the issue but that's not where we are so all I can say is going forward I'm glad that Longmont has taken the solution that it has and I think other localities should look at Longmont as one potential model for what they can do I know other localities are looking at much longer setbacks for example even zoning it in certain areas and also they should be clear that 181 does give them the ability to say no to oil and gas development if it's not consistent with health and safety which is something that was not clear before so how you get there is should be up in some ways many ways to local governments which as you noted local governments do all the time with other stuff which was part of the big reason why we went that way with oil and gas I didn't quite understand that last statement well you talk about how local governments can do things like zoning and setbacks for other types of uses yeah but prior to 181 it wasn't clear that that was something that they were allowed to do under state law and now it is it is clear although I would argue before 181 localities could do that but there was significant discussion and significant disagreement and also there was localities that were pretty risk averse because they knew the industry would sue them just like they did with Longmont $400,000 worth right and as you noted after the 2011 process Longmont put in regulations that the industry didn't like that were different than the regulations and they got sued and then the people of Longmont passed the ban and then they got sued for that yeah and so the industry certainly has shown itself to be litigious not afraid to engage in litigation and so that was part of why we wanted to clear things up with 181 is to take that out of the equation that doesn't mean the industry will never sue again because they're certainly very heavy handed at times and if they don't get their way then they're going to explore every opportunity they have but I think the law is a lot clearer now that localities can do things like Longmont has done and other things that Longmont has considered in the past so if Longmont did things that were lawful even before 181 to carry out the will of the people even though the exact will of the people in the terms of the fracking vote couldn't be carried out because of the court ruling what we've done there now is put ourselves in a legal dilemma where we have one contract that says you won't stop us from exploiting these mineral rights or you are liable Longmont and if the Colorado Rising suit were to be victorious then apparently we would be enjoined to do exactly what our contract doesn't allow us to do and if you were Longmont's lawyer how would you defend in that situation well but I thought you said that they're not drilling within town limits anyway which is your jurisdiction right they're not but Colorado Rising says that that ban includes the subsurface drilling and some of the horizontal bores do go underneath Longmont and they expect to disallow those bores I have a hard time seeing that so I'm less worried about it than it was but I want everybody to know about it because that is what Colorado Rising says is we're going to get rid of those horizontal bores right yeah so the difference is underneath the ground as opposed to surface impact so you've managed to get the surface impacts outside of the town of Longmont however there's still some drilling that's happening underneath the ground of Longmont cities here right deep underneath the ground well you know I guess you've created a very good question that a lot of lawyers could probably get paid some money to try to discuss and so I don't know about including you I hear that this is going to be your last term in the Senate that's right yeah I'm in the private practice of law now I started last July so if it turns out that you feel like that this may be a question I could answer as a private lawyer you never know but I really don't know the answer to be honest with you I mean I'm not trying to mess around with you because but I think that you know it's it's a very difficult question because what it comes down to is you have two you may have two conflicting things you have contract versus city charter and so when you put those things that can't be reconciled together which one is going to win and I wish I could I mean I can't tell you the answer I just don't know what it is on top of my head just as a general attorney which I am not does the timeline matter at all in terms of liability for Longmont I mean we did this it was set aside we did something else which was lawful at the time and then and then the Charter Amendment would be reinstated making the contract that we engaged in an unlawful contract retroactively can can we be liable for that situation so I think most good lawyers are going to tell you the answer is always maybe but I mean I do think the timeline matters I think it's something that's going to be part of the discussion if it comes down to this and part of the court's analysis and one side will argue one way and the other side will argue the other way and the judge will decide but I again you know these are difficult issues there does not seem to be precedent for it so I couldn't prop on some precedent from other towns or even really other states frankly to tell you how those courts have gone because it's pretty unique circumstances I mean yeah the Longmont Tracking Band plus what you all have done with the surface impacts and if you combine the two they're not reconcilable so which one is going to win I guess maybe we can do another episode in a year and try to hash that out. It probably it may not be a year but I would sure love to have you back we are out of time now and I had a whole set of topics that were easier than that one actually not that much easier but some easier that we need to get to it and so maybe when we get a little bit closer to the cumulative effects rulemaking you can come back and we can talk about it because it was a cumulative effects discussion that I hoped would be our third topic. Sounds good. So thank you Senator Flick for coming to talk to me. Yeah thanks for having me. This is Capital Conversations. I'm Marcia Martin.