Category Archives: Environmental

Colorado, A Fracking Mess

There does not seem to be a lot of agreed upon information about the effects of fracking.  A lurking culprit for this is the nondisclosure agreements signed between companies and individuals.  Because of this, it can be difficult to find information about any of the alleged harms of fracking, first-hand.

However, the Colorado Oil and Gas Conservation Comission (COGCC) can help.  On the COGCC’s website is a database of the last 2,500 public fracking complaints.

The complaints, themselves, are kinda hidden.  The only way I know to access the database is by going to the COGCC’s homepage: http://cogcc.state.co.us/.  Then along the left-hand side menu click on “Complaints.”  After accessing the complaints page, scroll down to the bottom there is a link called entitled, “Complaint incident search tool.”  Click on that and you will be at the searchable database.

Colorado Fracking in Weld County - Photo taken by CoCommonlaw
Colorado Fracking in Weld County – Photo taken by cocommonlaw.com

What we don’t know about the effects of fracking can hurt us. There is still not agreement if fracking causes environmental harms such as: earthquakes, contaminated water, etc.  Until Colorado picks its head out of the shale and creates a public policy exception against non-disclosure agreements in environmental lawsuits, then society will never truly know what the harms are or are not from fracking.

Continue reading Colorado, A Fracking Mess

Article – Settlement Confidentiality: A ‘Fracking’ Disaster for Public Health and Safety

The safety of hydraulic fracturing (“fracking”) is being debated without all the information.  This is a scary proposition for those who live near live near fracking sites.  Best industry practices may be slow to develop, or not developed at all, because of confidentiality clauses in settlement agreements keep the potential dangers secret.

Confidentiality prevents the public from knowing about systemic wrongful conduct. It can also prevent regulators and government agencies from performing their duty to enforce the law and protect the public. The purpose of the court is to evenly administer justice to all so that all are protected by the law. When violations are hidden by confidentiality, the legal system itself is thwarted from fulfilling one of its fundamental purposes: to protect the citizenry from wrongful conduct.

An interesting point is made in this article that perhaps confidentiality clauses have a much broader impact in fracking cases.  Adverse effects of fracking have far-reaching implications that could affect communities, regions, or even entire states.  Then once a confidential settlement is reached others who may be impacted in the area could be in the dark about the potential hazards.

Colorado public policy should be revisited to limit confidentiality settlements in fracking cases.

Sign for Fracking Site in Colorado - Photo taken by CoCommonLaw
Sign for Fracking Site in Colorado – Photo taken by CoCommonLaw

Confidentiality clauses in settlement agreements have become so commonplace they seem like benign contractual terms. In reality, confidentiality clauses have formidable power to silence even the most outspoken plaintiffs, including a woman once known in Colorado as the “Erin Brockovich of Garfield County.” Because settlement agreements generally operate as simple contracts, requiring no judicial input or approval, litigants have virtually unbridled power to condition settlement on one or both parties’ silence. As a result, settlement confidentiality has muzzled virtually every plaintiff in hydraulic fracturing (“fracking”) suits, aided the Catholic Church’s alleged child molestation cover-ups, and helped shield manufacturers from public scrutiny of hundreds of deaths and injuries stemming from tire failures.

Despite such risks and a trend in U.S. law and policy toward openness and disclosure of potential public safety dangers, the confidentiality clause remains a staple for civil settlements. Whereas other scholarship focuses on whether to continue permitting settlement confidentiality or proposes changes that restrict court-approved confidentiality clauses, this article (1) explores conventional arguments for and against settlement confidentiality, using fracking claims as a case study; (2) concludes courts must reject the secrecy-as-bargain status quo but accept the reality that confidentiality is sometimes necessary; and (3) proposes a uniform rule courts should adopt to regulate, when public interest requires, confidentiality clauses in both court-approved settlements and private settlements courts are later asked to enforce.

— R. Kyle Alagood, Settlement Confidentiality: A ‘Fracking’ Disaster for Public Health and Safety,available at  SSRN.

 

 

Article – Developing a Common Law of Hydraulic Fracturing

The fracking legal battle is fractured, and filled with inconsistencies.  With the development of new technologies for hydraulic fracking, including horizontal fracking, courts often times disagree with each other in how to apply the law.

This has led at least one academic to examine exactly what in the common law can be applied to fracking.  This makes sense to me because many of the legal claims being discussed now are rooted in the common law: preemption, police powers, trespass (subterranian), easement, etc.

Modern American property law can be traced back to Norman feudalism in the 11th century.  Many of the terms used in modern American property law are antiquated and derived from that period in England’s history.  Unlike other areas of law that are relatively new, such as privacy law, which was advocated as a formal right until the late 19th century.  See Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890-91).  This makes the common law, while not definitive to the new problems, important in assessing how courts have acted previously.

Fracking Site Weld County Colorado - Photo Taken by cocommonlaw.com
Fracking Site Weld County Colorado – Photo Taken by cocommonlaw.com

To a more limited extent, the [fracking] battle will also be waged on the common law front as landowners seek to block or discourage hydraulic fracturing employing trespass and related claims.

Regarding existing shale development, trespass claims can have a direct effect on the use of hydraulic fracturing. Because it is not possible to control the precise location of fissures created by the fracturing process, imposing liability for fissures that cross property boundaries would cause operators to limit their use of hydraulic fracturing and may, ultimately, cause them to abandon the process altogether-which would mean abandoning development of most shale formations.

This article explores the three common law dimensions of hydraulic fracturing: property, tort, and contract. Although there is a limited amount of ‘law’ on hydraulic fracturing, sufficient case law and commentary exist to frame and evaluate the analysis likely to guide development of a common law of hydraulic fracturing.

— David. E. Pierce, Developing a Common Law of Hydraulic Fracturing, 72 U. Pitt L. Rev. 685.

Article – Local Government Fracking Regulations: A Colorado Case Study

Fracking is a hot topic in Colorado.  Environmentalists worry about secondary effects which some scientists believe to include: earthquakes and water contamination.  Proponents argue it brings jobs and money into the region.

Hydraulic fracturing, or “fracking”, is the process of drilling and injecting fluid into the ground at a high pressure in order to fracture shale rocks to release natural gas inside.

Fracking Site Weld County Colorado - Photo Taken by cocommonlaw.com
Fracking Site in Weld County Colorado – Photo Taken by cocommonlaw.com

Good friends of mine live in Longmont, Colorado which is turning out to be ground zero in the fracking battle in Colorado. The city of Longmont claims “local rights” to zone fracking out from anywhere within the city.  The Colorado Oil and Gas Association, the state’s largest industry group, sued in 2012 to overturn the ban. It was joined by the Colorado Oil and Gas Conservation Commission — the state agency that regulates the industry — and TOP Operating, the principal oil and gas company active in Longmont.

The rights of cities to regulate land usage within their own boundaries is an interesting concept that is being tested legally in new ways because of fracking.

[T]his Article explores how local governments may regulate fracking under state preemption law, using Colorado as a case study. Colorado has a longstanding legal framework for
local government oil and gas regulation due to the industry’s continuous presence in the state prior to the recent fracking boom. Some eastern states have recently adopted Colorado’s approach. But lingering questions remain about the details of local authority, and conflict is brewing as many local governments begin to regulate fracking in their communities.

This Article addresses how the fracking boom presents unique challenges to local governments, their regulatory authority under Colorado law, and how they can approach regulation in a manner most likely to survive judicial review. It begins by explaining fracking’s socioeconomic and environmental impacts, focusing on impacts in rural Western communities. It emphasizes fracking’s socioeconomic impacts, which have been largely overlooked by other legal scholarship, yet constitute the strongest ground for local government regulation. The Article then addresses the legal
basis for local government fracking regulation under Colorado law. It highlights that Colorado local governments, especially home rule municipalities, enjoy broad authority over land use matters. Next, the Article critically examines four frameworks for local government regulation—guides published by two organizations, and ordinances already enacted in several Colorado cities. It concludes by advocating that Colorado local governments regulate the fracking boom through land use ordinances targeting the boom’s socioeconomic impacts, rather than ordinances that directly regulate fracking or that target the fracking boom’s environmental impacts.

— Joel Minor, Local Government Fracking Regulations: A Colorado Case Study, 33 Stan. Envtl. L.J. 59.

A really interesting reading for Coloradans, those on either side of the fracking debate, or those interested in the direction of zoning laws.