On Jan. 24, Sturm College of Law hosted its second annual Carver Colloquium, which drew more than 100 current students, alumni and professors.

Debaters presented arguments on the challenges facing local governments regarding oil and gas drilling and production in local communities in comparison to the traditional regulatory role played by state authorities, such as the Colorado Oil and Gas Commission.

The 2013 Carver Colloquium featured Colorado Solicitor General Dan Domenico, also an adjunct law professor at Sturm College of Law, and University of California-LA Professor Robert Freilich. The event was co-sponsored by Professor Jan Laitos, the endowed John A. Carver, Jr. Chair at Sturm College of Law and Professor Susan Daggett, Executive Director of the Rocky Mountain Land Use Institute, in conjunction with the Lincoln Institute.

Domenico and Freilich both called the topic “timely” and “fascinating,” with Domenico presenting the role of the state while Freilich, considered by Laitos to be one of the nation’s leading experts on planning, development, zoning and land use, argued from the point-of-view of local communities.

While introducing the topic, Laitos said that the primary concerns of the oil and gas drilling regulations are state and local geographic conflicts and who controls environmental impacts, particularly with water wells.

According to Domenico, the state has typically prevailed.

“The state’s role on the issue is longstanding, broad, deep and ever evolving since 1915,” said Domenico. “Even more recently in 1992, the Supreme Court ruled that the state interest takes precedence over local interest.”

According to Domenico, Colorado’s 2007 revised legislature maintains that the state can be more intensely involved with oil and gas regulation than local parties.

“Even with Colorado’s revised legislation, they aren’t considering the impacts of drilling [for oil and gas],” said Freilich.
Domenico argued for the state taking a central role.

“This is a clear case of collective action problem,” said Domenico. “For example, no one likes when someone comes into their backyard and extracts oil from there, we would all much rather ask others to bear the inconvenience.

“A predictable set of rules can protect the environment which is much better than a patchwork set of rules,” said Domenico. “Industry values uniformity, they value consistency.”

According to Freilich, due to the fact that energy is a leading employer in Colorado, there are many broader concerns that need to be taken into consideration when a state is adopting policy.

“Cities and towns can regulate oil and gas just as they regulate other aspects of society,” said Freilich. “Why shouldn’t they have the authority over oil and gas regulation?

“This issue is primarily concerned with fracking [the process of extracting natural gas from rock layers deep within the Earth]. Property encompasses the air above, the land and the land below, which makes it difficult to regulate.”

Freilich also said that state legislation needs to define onsite versus offsite regulation, especially because states are primarily concerned with onsite regulation.

“Some recent examples include Pennsylvania, which declared that city and local interference with gas and oil regulation was unconstitutional just three months ago,” said Freilich. “Other examples include New York and Texas. All of these states have more oil than Colorado.”

According to Domenico, there also needs to be a balance with environmental concerns.

“We really we need to focus on the main concern, which is how an agency such as the Colorado Oil and Gas Commission can adequately manage all of the wells and the resources available, such as how all of the experts in these areas are being put to use,” said Domenico.

“Obviously one has to recognize the significant benefits and costs and it is very important to create a balance,” said Freilich. “Each side should complete a land analysis and report on the spacing and controlled number of areas suitable for drilling based on environmental capacity; we need joint cooperation.”

“The recent boom in oil drilling has been overwhelming and has had severe negative impacts on towns that cannot sustain the interests that they have attracted,” said Freilich. “For example, North Dakota is the eighth fastest growing oil and gas drilling site in the USA; however, it has very much inadequate spaces for people, and as a result, schools and housing have suffered, traffic has become terrible and people have had to set-up man camps.”

“Operational conflict preemption materially undermines the goal of state laws, yet there are no clear laws,” said Domenico.

He listed four factors which he believed to be “incredibly important”: policy uniformity, a discussion of territorial impacts, traditional oil and gas regulations and the adoption specific constitutional direction.

“States should provide compensations for the expense of complying with regulations,” said Freilich.
Domenico also said compensation should be the result in conflicts.

Furthermore, according to Freilich, the state and local towns should develop and implement joint rules and regulations.

Both speakers also said that there are opportunities for local involvement.

“We obviously need to educate individuals on both parties, we have to have a plan,” said Freilich.

“Definitely, more cooperation and participation are needed from both sides,” said Domenico. “It is pretty unlikely that there will be anything other than a complete ban, but we still have to be careful. Until then, we must ensure the safety of citizens.”

“And we will have wonderful litigation for the next few years,” said Freilich.

According to Laitos, Sturm College of Law decided to have another colloquium this year following last year’s successful debate topic of who should have the power to regulate renewable energy plants in particular landlines.

“The colloquium is an opportunity not just to have a debate on a controversial issue, but to also have two opposing speakers who work together to educate the audience,” said Laitos. “We’re always looking to see what we can do with at the Law School, and last year our Oxford-style debate was very popular, so we decided to hold another colloquium and highlight a current and contentious issue.”