Friday, June 13, 2014

How The Frackers Are Weighting Ballot Initiatives For Their Side In Colorado

Colorado oil walls, Greeley
New, giant wall being erected in a Denver neighborhood to reduce fracking noise complaints. Neighbors had described it as "like a jet engine running all night long".

It is no surprise to most of us here in Colorado that unless multiple issues are soon resolved, including extent of local control of fracking operations, as well as protecting scarce water supply in a drought-prone state, we will soon see conflict that will make the water wars described on Showtime's 'Years of Living Dangerously' look like a walk in the park. Already, many of the state's farmers are enraged as water rights are determined by auction, with the greatest volume going to the highest bidders - namely the oil and gas companies behind fracking.

Here in Colorado Springs, fortunately, the frack rage hasn't taken off like it has in Denver or in Weld County.....yet. The past three companies who've tried drilling exploratory wells in El Paso County have come away disappointed with the meager results, according to the article 'Frack down!' in The Colorado Springs Independent.  Despite that the gas frackers haven't given up just yet. A fourth company, Agave Oil and Gas, is reportedly planning to drill two exploratory wells here. The oil and gas frackers obviously believe that since they already have 55,000 wells in most of the rest of this dry state (recall each well takes 3-5 million gallons of water to frack) there's got to be some oil or natural gas here. Most of the citizens of the county are hoping they're wrong because they don't want to see a scenic part of the state despoiled by frack wells and pollutants.

Also, we don't want to have to buy bottled water by the ton every month because our water is so polluted you risk liver, stomach, pancreatic, kidney  and other cancers.

Many communities, such as Longmont and Boulder,  have tried their best to fight back by voting via referenda to ban fracking or limit it  - but the state (in the pockets of the frackers) has retaliated - claiming only the state "has the right to set certain restrictions".  The state perhaps needs to be reminded that states have NO rights.  States have prerogatives, not rights, because states exist as governmental entities not as persons-individuals. Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) puts it bluntly (p. 108):

The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.

So the state hasn't a "right " to stand on, to re-use an old cliché. Colorado communities seeking to assert some kind of autonomy also have to deal with the Neoliberal Dem puppet , Governor John Hickenlooper - a pet of the oil and gas companies. Hickenlooper, seeing threats to his control coming up in the November mid-terms, is in a last minute push to broker deals that can prevent some overly local control initiatives from appearing on ballots.  One way to do this is to frame pro-industry ballots to run along side those of local control and hope voters are too stupid to read them carefully and note the difference.

The COS Indy article points to four total ballot initiatives currently in the signature -gathering phase here in El Paso County, of which three are largely pro-fracking. Can you spot them?

1) Initiative 121 says that local governments that ban or prohibit oil and gas development will not be able to receive state tax revenues from development elsewhere. (Well, so what? They can go to marijuana sales!)

2) Initiative 122 says that local laws cannot conflict with, or be more restrictive than, the rules of the Colorado Oil and Gas Conservation Commission (the puppet of Hickenlooper and the fracker fiends) and state laws and guidelines.

3) Initiative 123 says much the same but stipulates that local governments can assess an "oil and gas impact fee to mitigate the direct costs associated with oil and gas development and operations within their jurisdictional boundaries". (Fine, but what about the costs of treating the cancers from drinking fracked water?)

4) Initiative 75 is titled "Right to Local Self- Government"  and never refers to "oil" or "gas" instead stating that local governments have the right (actually prerogative) to "enact laws to protect health, safety and welfare by establishing the fundamental rights of individuals".

The last is on the right track, acknowledging only citizens have rights and that these trump the prerogatives of states. It scares the bejeezus out of Neolib puppets likc Hick because it gives local governments the power to enact local laws "establishing, defining, altering or eliminating the rights, powers and duties of corporations".

Also according to the initiative local laws "shall not be subject to pre-emption by international, federal or state laws."

A REAL Democrat and thorn in the side of the anti-citizen lobby in Colorado, is Jared Polis. He represents Boulder and has averred he will fund all campaigns for initiatives giving local control. In other words, he is Hickenlooper's worst nightmare.

According to a University of Denver law professor (Tom Russell)  cited in the Indy article, the last initiative as well as Polis' efforts are "unconstitutional". He claims such initiatives violate the U.S. Constitution's  "Surpemacy clause" under the 14th amendment.

In case some may need a point of reference, he's actually referring to the misbegotten 1886 Santa Clara decision of the Supreme Court, to award corporations the same rights as citizens, and extend to them special definitions as "persons" under the 14th Amendment.  The specifically relevant section of the amendment is that which is known as "The Equal Protection Clause" and which requires each state to provide equal protection under the law to all people within its jurisdiction. Where he dredges up "supremacy" is anyone's guess, unless he means corporate supremacy!

The error those like Russell - and the Santa Clara court- make, is conflating corporations with persons, hence they don't really have equal protection under the law as flesh and blood citizens. And btw, the 1886 court decision - which arrived AFTER the 1868 amendment, is NOT constitutional.

According to Russell (ibid.) the local control of fracking initiatives are:

"Unconstitutional on their face and express a version of rights inconsistent with the United States since at least 1776."

Which, of course, is nonsense - since in fact it returns to people the rights that are invested in citizens (as Prof. Gary Wills notes - see above).  It also repeals pseudo-rights, as "persons" that the corporations never merited!

The final bit of illumination from Russell:

"You can't just declare that a local unit of government can determine what everyone else's rights are"

Hmmmmm.....seems the good prof never heard of "community standards", i.e. in controlling the distribution and access to pornography in assorted U.S. locales. Thus if you ship XXX stuff to a place in Tennessee - and it violates its community standards-  you can be prosecuted by that community. Also, if you perchance bring your stash of porno to that same lil TN burg, believing the rights you have to use it in CA are the same there, you will be surprised! That goes for any "sex toys" as well, which are also outlawed in VA, TX and several other states. Seems the prof may need a bit of remedial law exposure!

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