Is Your Kids’ School Near A Gas Line? How Big Oil Blocks Health And Safety Regulations In Colorado

The oil and gas industry is a major player in Colorado politics — it has spent more than $25 million on state and local races since 2014. This spending has given the industry a considerable amount of influence in the state legislature, where it has repeatedly opposed efforts to increase safety and oversight of the 53,000 active oil and gas wells in the state. Leaks at some Colorado wells have led to deadly explosions in recent months.

One of the people fighting for drilling transparency and safety is Democratic state Rep. Mike Foote, who has written several safety bills passed by the Democratic-controlled House that ulimately died in the Senate, where the Republicans have the majority. One of those recent bills would have prohibited drilling within 1,000 feet of school property. Foote sat down with International Business Times’ David Sirota to discuss his efforts to protect public safety in Colorado and the oil and gas lobby’s grip on the state politics.

Audio of the conversation is available below.

Sirota: Why do you believe oil and gas drilling should be restricted near schools?

Foote: This is an area that the oil and gas industry and I would disagree: I don't think you need to drill everywhere. I think there's some places where you really shouldn't be drilling and one of those places will be right next to a school. Right now, the rules that we have allow drilling to be right next to a school's athletic facility or a school's playground or other auxiliary type of facility. It basically says you can drill a thousand feet away from the front door of the school and we all know that there's lots of other facilities on the school grounds besides just the school building. We have seen all kinds of drilling going on right next to school facilities.

The whole premise of the bill was that you shouldn't be putting these dangerous industrial activities next to school facilities because bad things can happen. Human error can happen, accidents can happen, things can explode, things can leak, there can be air issues, all of those things really shouldn't be next to a football field, a baseball field or a playground, et cetera.

I did propose this bill, the oil and gas industry immediately came out against it. In fact, I think it was about two hours after I had forwarded a copy of the draft of the bill to the industry that they were sending out press releases about how they were opposed to the bill. They claimed that it was going to put large swaths of Colorado off-limits to drilling. In fact, it's quite the opposite, it really wouldn't have put that much off-limits to drilling. Even so, even if it would have put a lot of Colorado off-limits to drilling, my point is that accidents can happen and you shouldn't be putting things that can explode next to schools. That's just the bottom line as far as I'm concerned.

Read: Oil And Gas Industry Power Builds Wells Near Schools In Colorado, Trumping Environmental Concerns

Sirota: What you just said seems so obvious: you don't want to put things that could explode next to places where there are lots of children. Apparently though, we needed, or you believe we needed, that piece of legislation.

I want to go back to one thing that you said because I think it's really important, and that's the impact of the bill. The state legislative office that reviews legislation actually said something along the lines of it would have a negligible or unbelievably minimal effect on the state budget, and the state budget, in part, gets revenues from oil and gas activities. The point being that the nonpartisan state legislative office that advises the legislators said this would have a negligible effect and yet there was major pushback to the bill. The question that I have from that is if the industry knows that, if the industry says, "Look, Mike Foote's bill is not, unto itself, going to impact our revenues," why do you think they then, nonetheless, push back so hard on it?

Foote: I'll just add something to what you said, which is that according to the Oil and Gas Conservation Commission, this bill or something close to it would have put off-limits maybe .008 percent of the available land that's available now, so it very much was minimal. I mean, really, the bottom line is that the oil and gas industry controls the capitol right now. If they don't want a bill to pass, even if it's something as small as this, then it won't pass. Over the last several years, they've taken a zero-sum approach where if somebody proposes something that would affect them and they don't like that for whatever reason, they just oppose it and the bill dies. That's really, cutting it to the chase, exactly what happened here. It's too bad. I mean, we should be able to discuss these things and make appropriate changes but they weren't really in the mood to do that and, more importantly, they didn't have to.

Sirota: Now, for folks who don't know about Colorado's breakdown of the legislature, the Democrats have a majority in the House and the Republicans have a majority in the Senate. The Republicans in the Senate have their fundraising apparatus, and the groups that support their reelection campaigns have gotten a huge amount of money from the oil and gas industry. One group, for instance, got about $738,000 just in the last election cycle, the group that supported the Senate Republican campaigns. How much do you think that money influences Republican legislatures when they're thinking about these issues?

Foote: Well, the oil and gas industry is, as you said, a huge contributor to Republicans, one of the main reasons why Republicans are in control over the state Senate and there's just no way around that. It's not been that way just since 2016, it's been that way for years, for a long time. They just have this partnership with the Republican Party and that if you're a Republican and you are thinking about voting the opposite way of what the industry wants you to vote, it just wouldn't be a very smart idea to do that if you're a Republican.

Sirota: Let's talk about what's happened. Your bill came up, you proposed it, it was voted down by the Senate Republicans in April and a few days later, there was a deadly explosion in Firestone, Colorado, near an oil and gas well owned by Anadarko. It was later found out by investigators that it had to do, they believed, with a line that led to the well. Do you believe the explosion confirms your fears? If it does, why do you think, even after the explosion happened, the bill still didn't go anywhere? In other words, some people might say that and say, "Hey, Mike Foote was saying that this is a dangerous situation and his bill was blocked. In the middle of the legislature, an explosion happened so in theory, maybe the bill should come back up," but it didn't. Why?

Foote: Well, a couple of things about that. First, to a certain extent, it did confirm the fears but it really didn't in a certain way because explosions and fires have happened before and they happen every now and again. In fact, in the bill presentation for the school setback bill, I cited a number of fires and explosions, one of which was in Frederick, which is close to Firestone, in 2014 where a nearby school had to shelter in place. The kids had to shelter in place because the fire was going on, it was burning uncontrollably for about three hours while the kids were in school. There are other incidents as well. It just so happens because of what happened and the tragedy that happened in Firestone, a lot more people are paying attention to it now. If you go back and take a look at the statistics and what's reported, these things happen and they happen too often. Once is too often, but they happen way too often. That was the entire premise of the bill before Firestone even happened.

You're right that the bill was killed just before the explosion occurred. Then you have to remember, there was about a three-week period or so when the investigation was going on as to the cause and origin so we didn't know exactly what had caused that explosion, it could have been anything. It turns out that it was because of a severed flow line.

Sirota: After the explosion, you had another bill that you're working on, on an issue called forced pooling and it's a technical industry term. Tell us what forced pooling is and tell us what your bill proposed. I think people can already guess that what happened was it ended up being, again, passed by the House and then being blocked in the Senate. What is forced pooling and what were you trying to do on that?

Foote: Well, forced pooling is really a corporate eminent domain that the oil and gas industry gets to exercise. People know what eminent domain is by a local government, for example. This is the same thing, but the oil and gas industry gets to force a mineral rights owner to lease their minerals to that operator. Now, let's say that you have a pool of oil and gas resources and 30% of the mineral rights owners want to lease their mineral rights, that means 70% don't want to. Those 70% can then be forced to lease their mineral rights to an oil and gas operator in order for those minerals to be extracted.

It could be people don't want to sell right then because they don't think the price is right, it could be because they just don't want to sell, they want to pass it along to their future generations, it could be a county open space type of territory where the voters funded the open space to be open space and not to be available for oil and gas drilling. It could be all of those things. Because of the way our law was written and because corporate eminent domain and forced pooling is allowed, those mineral rights owners can be forced to lease.

Sirota: In real world terms, if I'm living in a community and an oil and gas company buys the rights to a pool of oil and gas underneath the community, and 30 percent of the people who own the rights sell it to the oil and gas company but I say, "I don't want them drilling under my land, I don't want them on my land. I own the rights, I don't want it," under Colorado's law, the company can force me effectively to allow for that drilling and exploration underneath my property.

Foote: Yeah. It's even worse than that, it's not just the 30 percent ratio. It's just if there's one mineral rights owner that they convince to sell their mineral rights, then the other 99 percent of the mineral rights owners that don't want to sell can be forced to sell."

Sirota: Come on, you're telling me if there's 100 property owners and one says, "Okay, oil and gas company, I let you drill for some of that oil and gas underneath my home," the other 99 have to say "okay"?

Foote: That's right. Now, that's not how it usually happens, usually the industry has more than that. There's a subdivision right now just south of my district, in Broomfield, where it seems to be... We don't have the figures because only the industry knows this. That's part of the bill: we wanted the public to know it, we wanted the commission know it. It seems that it was about 5 percent, maybe 8 percent of the mineral rights ownership agreed to lease the mineral rights. The other ones did not want to, yet the other ones are being forced to do it and there's going to be large-scale developments in the middle of that neighborhood.

Sirota: Before we get into what happened with your bill, if you know it, what's the history of this? Because you hear all this folklore about how the Rocky Mountain West is all about property rights and the frontier people and people who are very focused on their own land and their own individual rights, how did this happen? How is it allowed to happen?

Foote: Well, this isn't unique to Colorado, there's forced pooling laws all around the country, I don't know if it's every state but many states have them. The premise of it and the reason why it was put into place makes sense. Just imagine you have this underground pool of oil, that's not how it exists right now, it's more just going through rock and fracking for the oil and gas. But let's say you have this underground pool of oil and you have, say, 95 percent of the mineral rights interest want to sell but 5 percent don't. Well, it seems that the 95 percent should be able to have the minerals extracted and be able to use that property right, you don't want to have just 5 percent or 1 percent objecting and making sure that nobody can get any kind of mineral rights. So that makes sense.

Now, the nature of oil and gas drilling has certainly changed since the old days. Now, what you have is you don't have to use the system the way it was used before. Before, if you had this pool, you would have to put a drilling derrick in one yard and then the next person's yard and then the next person's yard and all the way down the line. I think you can imagine that's not a very good use of resources and that messes with people's surface property rights as well so that makes sense. Things have changed since then and the premise of the bill was that we need to update our statutes to reflect that change.

Sirota: Again, it was voted down. It got into the Republican Senate where the Republican legislators have gotten a huge amount of money and help by the oil and gas industry and it was voted down.

Foote: Same old story.

Sirota: Now, the thing about this is, it's one thing to be a Republican and be pro-oil and gas exploration in terms of your school setback bill. In theory, you could find a way to make that congruent with typical Republican rhetoric and ideology — growth is good, expand drilling is good. This one, though, runs into the Republicans’ rhetoric about property rights. In the public debate, how did the Republicans justify taking a position on behalf of the oil and gas industry against homeowners and Colorado residents and their property rights?

Foote: Well, actually, this one was more of a process type of argument. If you can't argue the policy, that's the typical way that you do it. I don't think that they figure they could argue the policy very well because of just what you said, which is a property right should mean something even if you're a mineral rights owner. It's more of a process argument this time, it was some of the usual rhetoric: this bill came up too quickly, there needs to be more consideration, maybe it should be a rule instead of statute, there needs to be more stakeholder work. Those types of things. None of it really was true but that was the kind of rhetoric they used in order to justify voting no.

Sirota: This forced pooling bill comes up after the first explosion. There has now been a subsequent explosion involving facilities with the same company, Anadarko. After the first explosion, you then introduced, late in the session, a bill that, the way I read it, would essentially force oil and gas companies operating in Colorado to release all of the maps of their oil and gas infrastructure so that at least homeowners would know whether they're living near that infrastructure. What happened to that bill?

Foote: Yeah, that was the pipeline mapping bill and that was introduced, actually, less than a week before the session ended. It was actually a very challenging calendar.

We, of course, were waiting for the cause and origin investigation to be complete. The fire district held a press conference on the Tuesday so that would have been eight days before session ended saying, "This is what happened, it was a flow line that hadn't been kept. It was cut and it caused the gas to seep into the basement and, subsequently, the house exploded." We saw the flow line as being an issue and, of course, we've always known that pipelines aren't mapped. Then we were getting very quick feedback from people saying, "Well, do I have these flow lines next to my house?" Home builders would want to know, local governments would like to know, lots of people would like to know about these things so we put together a bill really quickly, we had to. We just started it going through the process but, like I said, it was pretty time-challenged from the beginning. We introduced the bill Friday morning before session ended and it was heard in committee Friday afternoon and it had to go through several committees before it got on to the floor.

The premise of the bill is that the operator has this information about where underground pipelines are, although I don't think they have all of it. I mean, if there's assets they've acquired that are 30 years old, they may not have that. To the extent that they have it, they should be letting the state know and the state should be putting it up on a publicly available website so that people know what's in their neighborhood and they can work around it. The owners can work around and local governments can work around it, people in those neighborhoods can work around it. Because nobody knows this except for the operator, nobody knows where these lines are located and certainly not the public and that's a problem. The governor indicated that he thought it was an issue, lots of constituents, not just from my district but many other districts, said they think it's a problem. We decided, "Look, it's a real challenge to run it with only a couple of days left in session but we might as well give it a shot because it's a good idea and the public seems to want it."

Sirota: The way I read it, it was basically filibustered. We at IBT/Newsweek, we reported on that bill. The Republicans, after our story came out, made the argument that the Democrats brought it up too late and it didn't follow the timing process and ‘we didn't really filibuster it, just didn't have enough time to be aired out.’ Most of the major media around the state reported it in real time as a filibuster, was that how you saw it?

Foote: Well, they had made it clear they were going to filibuster it. So that was their intent to do it. We had to get it out of the House on Monday night by midnight, because session ended on Wednesday, in order for it to have a chance of getting through the Senate. We knew it wasn't going to get past the Senate because the oil and gas industry came out against it. So we knew that, but we still wanted to get it out of the House at least and take a formal vote on it so people knew where their representative stood on this issue.

Sirota: Let's step back for a sec. The information and the mapping bill is a good place to pivot and say this: if I had that information in front of me, exactly where all the oil and gas infrastructure was around my house and the like, what can I, as a homeowner, do with that information and, as importantly, should I be worried about my family's safety in my home? I mean, when you have constituents come up to you and talk to you and say, "Look, should I be concerned about my child and their school near a drilling area?" or, "Should I be concerned about my subdivision is potentially near underground oil and gas infrastructure? Should I be concerned for the life and death, safety of my family?" What do you tell those folks?

Foote: Well, most of these facilities are safe and nothing happens but as we've seen, sometimes things happen. It's a risk, it's a dangerous industrial operation so bad things can happen. I guess what people could get out of it if they were able to see it ... Which, by the way, in other states they can see these things, including Texas, so this is not a novel idea. If they were to see it, I think that if you've already moved into your house and you're taking a look at this map for the first time, there's not much you can do about where the lines are, there's not much work you can do about where your house is. You could contact the state agency, you could contact the operator to try to figure out what the inspection history is, how safe it is and ask appropriate questions if you were so inclined so you could do that.

I think, really, where it's valuable is for areas that are currently not developed for housing. Local governments and builders and others could really know where these lines are and so they cannot build new houses right next to these lines.

I think the Firestone house was about 150 feet away from the wellhead and, of course, just five or eight feet away from where the line was cut next to the house and it's way too close to be building housing next to the facility. We should note, the house was built well after the facility was built so it's not that it was, necessarily, the oil and gas company coming in right next to the house, it was vice versa, but the local government and the builder had no way of knowing that. They probably just went through the same process as they always do which is you call 811 and you try to figure out where all the lines are and all that stuff. It sure will be nice to know ahead of time so that you can figure out what your development is going to look like so it can be appropriately far away from where the existing facilities are.

Sirota: Now, if the fight that you went through in the legislature over these bills and in the middle of these explosions wasn't enough to show how much of a battle over oil and gas development there really is here in Colorado, there's also a separate court case that's happening. You are an assistant district attorney up in Boulder County, so you come out of the criminal justice and legal world while you also moonlight as a state representative up there. Tell us about this case that's been happening and the involvement of some teenagers in this case, making a pretty profound argument about how fossil fuel development should be treated in terms of its priority next to health and safety matters. What is the court case about and where are we?

Foote: Yeah, the Martinez case, that's a really interesting case. I have to say, even though that I've been running bills since I've been elected in 2013 on the oil and gas issue, the Martinez case seems to have made more progress than any of my bills ever have, I hate to admit that but it's true.

In fact, one of the first bills I ran when I was elected in 2013 was a bill that dealt with the Colorado oil and gas agency's mission statement. Their mission statement has been interpreted to say that they should balance public safety and the environment with the extraction of oil and gas. They're promoting oil and gas drilling as well as protecting the environment at the same time. This balance is what the commission always talks about when they're making a decision. Which is why, for example, they can justify putting a new oil and gas facility 500 feet away from a group of homes which is just not safe or in the middle of a neighborhood. It's just not safe, while they talk about, "Well, we need to balance this with the promotion of the industry and extracting minerals." The Martinez case said, "No, you shouldn't interpret the mission statement that way, you should interpret it where public safety should be first. Only after you establish public safety is appropriate for drilling here will you then foster the development of these oil and gas resources."

Sirota: The plaintiffs are young people. I mean, they're basically arguing for the future of their state. Where is that case? I should also ask, do you think it's symbolically important that it is a teenager who is at the center of this case as the plaintiff?

Foote: Well, it's great. I mean, they're taking more of a climate change view of it which is that the extraction of oil and gas causes long-term damage to our climate and so that also plays to the public safety, so that's their angle and I appreciate that angle. My angle, the way I'm looking at it, my legislation is always been more about public safety and the fact that you shouldn't be putting this in the middle of neighborhoods or next to schools, et cetera.

There's also an interesting twist here as there seems to always be with oil and gas. First of all, it went to Denver district court and the Denver district judge ruled against Martinez and the other plaintiffs and they appealed it to the court of appeals. The court of appeals came back with a written opinion that said, "No, we think your interpretation is correct, public safety should be first." Then there's the debate as to whether or not they should try to appeal it to the Colorado Supreme Court and that debate just played out. The governor basically came out to say, "Well, I don't really think it should be appealed even though ..."

Sirota: The governor, in public, was saying "I'm good with the ruling as it is, that public safety should be first." Democratic Governor John Hickenlooper who, by the way, comes out of the oil and gas industry, was an oil and gas geologist, and has been a friend of the industry, he comes out and says, "I don't want the Colorado Oil and Gas Conservation Commission to appeal this ruling because I'm okay with public safety being prioritized." Then what happens?

Foote: Yeah. I should step back and say the commission, itself, is made up of seven voting members and they all voted unanimously to seek appeal and this is the Oil and Gas Conservation Commission. The governor stepped in and said, "No, I don't think you should appeal." One would think that if it's an executive agency, that the commission would listen to the governor.

Sirota: Right, these are his appointees.

Foote: They are his appointees although there might be a couple on there still from the prior governor, I'm not sure. Anyway, they are governor's appointees whoever the governor may be.

Sirota: This weird situation where you get the governor saying, "I don't want you to appeal," you got basically his commission with at least some of his appointees on it saying, "No, we're going to appeal," then what happens?

Foote: Then the Attorney General Cynthia Coffman comes in and says, "You know what? I think that we should appeal so I'm going to represent the Colorado Oil and Gas Conservation Commission and seek appeal to the Colorado Supreme Court." Even though the governor said no, the attorney general, who has made a point to say publicly that she will litigate on behalf of the oil and gas industry and has in the past, comes in and decides, "Well, we actually think that the mission statement should go back to where we think it should be in the first place which is this so-called balance and not the primacy of public safety."

Sirota: A lot of process here, but it is fascinating politics. A Democratic governor who's been a friend of the industry comes out and says, "Basically, I'm with the teenagers who filed this. I'm good with us, as a state, prioritizing health and safety." His commission says, "No, we want to appeal that. We want to not have health and safety be a priority over oil and gas development." Then the Republican attorney general who has benefited — her election campaigns — from groups that get a lot of money from oil and gas, she comes along and says, "I'm taking the appeal from the executive agency's commission and I'm going to appeal it to the Supreme Court in order to make sure that health and safety is not a bigger priority of regulators in Colorado than oil and gas development," which still boggles my mind. As somebody who works in the legal field, I mean, what do you think the Supreme Court is going to do? I should ask the even bigger question, what do you think it says about our politics here, that this even needs to be fought over?

Foote: Well, you put it exactly right in your summary. I mean, it's a very odd situation but it goes to show the power of the industry. The industry will join in with that appeal if they haven't already. They wanted it to be appealed, but they wanted somebody else to do the dirty work so they didn't get the bad press from doing the appeal. The attorney general comes in and says, "I want to appeal," the attorney general is the one that ends up getting the headlines, headlines she probably likes because it goes towards her base. The oil and gas industry quietly, without their normal press releases and statements, comes in and joins the request for an appeal. It's the attorney general with state employees paid for by tax payers coming in and doing the oil and gas industry's work. The oil and gas industry has plenty of lawyers that can do good work and they should be doing it themselves. That's getting off on a little bit of a tangent I think, that wasn't quite your question.

Sirota: Then the last question is about where Colorado is. I mean, you just said that Cynthia Coffman, the Republican attorney general who, by the way, may run for governor, I'm not sure it's going to happen but it's been rumored that she may run for governor, you said that her appealing this appeals to her base. I want to dig a little deeper into that as our final question, which is where do you think the everyday workaday Coloradan is on these issues? Because when you say her base, one level I'm thinking, well, maybe that is rank and file voters. At another level I'm thinking, maybe when we talk about her base, a political base, we're talking about the oil and gas companies, their executives and their big donors who write checks to groups that support gubernatorial candidates or attorney general candidates. The question is where do you think the average Coloradan is on these issues and do you think it's changing?

Foote: Well, that's hard to say. I mean, I know where people in my district stand, I know where people in Boulder County stand, I know where people in the Western Slope stand, I've spoken with a lot of their representatives about it. I have to think that most people in this state are for reasonable safety and public safety precautions, I just have to think that's the case.

I guess when I was referring to the attorney general's base, I probably was referring to the donor base which you referenced in the second part of your statement there. If you're running for governor, if you're running in for AG, it's certainly helpful to have the oil and gas industry supporting you.

As far as the average everyday Coloradan, certainly they're paying more attention to it now because of the explosion in Firestone, because of the explosion in Weld County, it's getting more and more covered so they understand what's going on. This was happening before but it just wasn't covered as much. I think if you were to talk to the person on the street, you would find them saying, "Well, we think that there should be some drilling but not at all cost. You shouldn't be putting it right next to somebody's door, you shouldn't be putting it right in the middle of a neighborhood, you shouldn't be putting it right next to a school, you should be doing it reasonably." Right now, that's now how it's done, it's not done very reasonably. There needs to be changes in the system. Now, there's some folks on the other side that think that drilling should not happen at all and then there's some folks on the other side that say drill, baby, drill, no matter what the cost.

I think that the vast majority of folks think that it just should be done in a reasonable manner and account for public safety. That's really what we've been trying to do over the last several years in the legislature but the industry has been shutting it down every single time.