Spencer Fane LLP Logo

Colorado Supreme Court Approves Ballot Measure Language Restricting Fracking

In an “end run” effort around the state legislature, proponents of more restrictive oil and gas well setback requirements in Colorado are employing the initiative process to achieve more restrictive minimum setbacks than present state law permits. On June 30th, the Colorado Supreme Court ruled that three potential ballot initiatives permitting a state constitutional amendment requiring the more restrictive setbacks did not violate “the single subject rule.” Constitution, State of Colorado, Article V section 1(5.5) and section 1-40-106.5(1)(e), C.R.S. (2013).

Each initiative is substantially similar in language, and an alternative version of a single measure proponents are seeking to place on the ballot for the 2014 general election. Each would amend the Colorado Constitution by creating a new article, establishing a statewide setback requirement for new oil and gas wells, and further declaring that the statewide setback requirement “is not a taking of private property” requiring just compensation. New wells would have to be located a specified minimum distance from any occupied structure. The proposed initiatives differ in that Initiative #85 requires a 1500 foot setback, Initiative #86 requires a 2000 foot setback, and Initiative #87 requires a half-mile (2640 foot) setback. Proponents of the initiatives represented to the Court that once it ruled on the challenges to Initiatives #85 through #87, a final decision would be made on which measure to pursue to the ballot. Finally, the proposed initiatives authorize a homeowner to waive the setback requirement with regard to his or her home.

Following rehearing before the State of Colorado Title Board which approves ballot initiatives, the title set for Initiative #85 states:

An amendment to the Colorado constitution concerning a statewide setback requirement for new oil and gas wells, and, in connection therewith, changing existing setback requirements to require any new oil or gas well to be located at least 1,500 feet from the nearest occupied structure; authorizing a homeowner to waive the setback requirement for the homeowner’s home; and establishing that the statewide setback requirement is not a taking of private property requiring compensation under the Colorado constitution.

The titles set for Initiatives #86 and #87 are identical in all respects to the titles set for Initiative #85, except for the setback requirements of 2,000 feet and one-half mile (2,640 feet), respectively.

In its opinion, the Colorado Supreme Court undertook the narrow issue of reviewing the actions of the Title Board in setting ballot titles and submission clauses (collectively, “titles”) for Initiatives 2013–2014 #85, #86, and #87. Under Colorado Law, in reviewing Title Board decisions the Court must “employ all legitimate presumptions in favor of the propriety of the Board’s actions.”  In re Title, Ballot Title & Submission Clause for 2011-2012 No. 3, 2012 CO 25, ¶ 6, 274 P.3d 562, 565; In re Title, Ballot Title & Submission Clause for 2009-2010 No. 45, 234 P.3d 642, 645 (Colo. 2010).  The Title Board’s decision will only be overturned in a clear case. In re 2011-2012 No. 3, ¶ 6, 274 P.3d at 565.

The Court held that each of the proposed initiatives contained one subject—the creation of a statewide setback from occupied structures for new oil and gas wells. The Court further ruled that the provisions declaring that “setbacks are not considered takings” under the Colorado Constitution were necessarily and properly connected to the setback requirements of the proposed initiatives, and did not violate the single subject requirement. The Court also found that the titles set by the Title Board fairly reflect the purpose of the proposed initiatives and were not misleading.

In its limited review of the Title Board’s actions as required by Colorado law, the Colorado Supreme Court did not address the merits of the proposed initiatives nor suggest how they might be applied if enacted.  In re 2011-2012 No. 3, ¶ 8, 274 P.3d at 565. The Court neither addressed the issue of any potential municipal ban on hydraulic fracturing within its jurisdictional boundaries, nor did it pass on the constitutionality of the proposed initiatives.  Assuming that the requisite number of petition signatures (currently 86,000) are collected and approved, the intent of the petitioners is to have the ballot issue considered in the upcoming November election.

Two Justices dissented from the majority’s affirmance of the Title Board’s decision, stating that the single subject rule had been violated by connecting the setback requirements with the divestiture of property owners’ rights to just compensation, since the purposes of these two distinct subjects are not dependent upon or connected with each other.  To read a copy of the Court’s decision, click here.