Updated: November 19, 2013 at 4:45 pm
They can hold all the elections they want, but one fact remains. Voters lack authority to ban fracking.
Voters soundly approved fracking bans Nov. 5 in Fort Collins, Boulder and neighboring Lafayette. Broomfield, another Boulder/Denver suburb, approved a ban by 17 votes at last tally. If courts uphold civil rights, these "victories" against oil and gas will have no more tangible effect than six successful countywide elections to secede from Colorado.
In the United States, voters have limited authority by design. They can elect politicians and remove them from office. They can raise or lower taxes and impose regulations that don't conflict with freedoms protected for individuals by the Constitution and 50 state constitutions. Though public schools use the word "democracy" as if it means "freedom," this country is nothing approaching a genuine democracy. Majority sentiment is not inherently virtuous.
Opponents of oil and gas production express fear that something might go horribly wrong, harming humans and their environment. Their concerns aren't entirely unfounded, but they have nothing substantial to support all the hype. Colorado's environmental regulations of the industry are so intense a lot of producers avoid the state. If fear of what might go wrong controlled public policy, we wouldn't have electricity - or tall buildings that can be knocked down by airplanes. We wouldn't have communities in forests, tornado alley or coasts prone to hurricanes. We would cower, sacrificing progress to minimize risk.
Theories and concerns about potential dangers do not authorize majorities to violate fundamental protections of civil rights. If so, we'd live with mob rule and none would be free. We'd empower voters to restrict the practice of Islam in communities ravaged by Islamic-related terrorism.
Just as this country was founded to protect religion and speech, it was founded to protect reasonable use of private property. The Fifth Amendment makes this clear. It prohibits governments and voters from depriving any individual of "property, without due process of law." It says private property may not be taken for public use "without just compensation."
Colorado's Oil & Gas Conservation Act defends owners of oil and gas deposits to "obtain a just and equitable share of production therefrom."
It all means one thing. When a person or group owns minerals beneath the surface of private property, the minerals don't belong to voters and their governments. The land and the minerals belong to the rightful owners. Extraction and sale of subsurface minerals are the only reasonable use an owner can make of such property. Others, including governments, have an option of controlling those minerals by means of "just compensation." That means they can buy the property and/or mineral rights. If they are not interested, or cannot afford the transaction, they have no say regarding lawful use of the property.
Gov. John Hickenlooper understands all of this - to the dismay of his liberal Democratic base.
ColoradoPols.com, a left-wing blog, asked the governor for his opinion of the four illegal fracking bans. He responded with an email that said, in part, fracking bans "essentially deprive people of their legal rights to access the property they own. Our state Constitution protects these rights."
Oil and gas producers frack under intense regulation and supervision. Major crises are unlikely. Oil and gas production contributes almost $30 billion a year to the Colorado economy and supports more than 110,000 high-paying jobs. While fracking may pose some public health and safety risks - just like all constructive human endeavors - running the industry out of Colorado would cause certain economic crisis.