Revisiting Proposed Initiatives 75 and 78 and Amendment 71

On August 29, 2016, Colorado Secretary of State Wayne Williams found that the proponents of Proposed Initiative 75 (Local Government Control of Oil and Gas Development) and Proposed Initiative 78 (Mandatory Setback from Oil and Gas Development) did not collect the requisite number of sufficient signatures to make the November ballot. Mr. Williams also provided a signature petition to Attorney General Cynthia Coffman after identifying a section that included potentially forged signature lines for investigation. While the defeat of Proposed Initiatives 75 and 78 was seen by many as the end of the fight between environmental groups and the oil and gas industry for the time being, the battle has continued in new arenas.

Undaunted, the representatives for environmental groups behind the proposed initiatives, Yes for Health and Safety Over Fracking, stated their intent to challenge the ruling. The proponents of the measure have thirty days from August 29, 2016 to appeal the decision to the Denver District Court by filing a protest under C.R.S. § 1-40-118(1) and (2). Any protest is limited to either contesting the verification process, including defects in the Secretary of State’s methodology, or fraud, abuse, or mistake in the petition process. If the protest is successful, and a defect in the Secretary of State’s methodology is discovered, all of the signatures will need to be counted and verified by hand. Should a line-by-line review become necessary, the Secretary of State’s Office will be under added scrutiny following controversy earlier this year surrounding the petition verification process for the Republican Senate primary ballot. As of today, there have been no reported protests filed, but some expect a challenge to be forthcoming prior to Thursday’s deadline.

In the meantime, the oil and gas industry and environmental groups have shifted their focus to Amendment 71, which would make amending the Colorado Constitution more difficult. Specifically, it would require at least 2% of the total certified ballot petition signatures come from each of the state’s 35 senate districts, and would require a 55% majority instead of the current 50% required. (For more information on Amendment 71, formerly known as Initiative 96, see the 8/31/2016 blog post).

Under Colorado law as it stands today, petitioning for a ballot initiative can be and often is limited to populous cities located on the front range, such as Denver and Boulder. Last week, the industry group Protect Colorado released an report analyzing the source of the signatures submitted for Proposed Initiative 78 (Mandatory Setback from Oil and Gas Development), where it was revealed that of the 77,109 signatures validated by the Secretary of State, approximately 70% were obtained from Denver, Larimer, and Boulder Counties. Boulder County alone accounted for nearly 25% of the signatures submitted. To the contrary, Weld County, which produces much of the state’s oil, and Garfield County, which produces much of the state’s natural gas, were greatly underrepresented in the petitions.

Colorado oil and gas industry groups support Amendment 71 primarily to limit the recurring battles, such as those in 2014 and 2016, over ballot initiatives concerning oil and gas development in Colorado, and also to providing a voice for Colorado voters in more rural areas who may not support more oil and gas initiatives. “Amending the state constitution should not be left solely in the hands of a few counties,” Karen Crummy, communications director for Protect Colorado said. “The entire state should have a say on what does or does not make the ballot. Under Amendment 71, all Colorado voters would have a voice.” Interestingly enough, the restrictions set forth in Amendment 71 have made for some strange bedfellows, as it has been endorsed by a wide variety of organizations, from pork producers to marijuana advocacy groups.

Unsurprisingly, grassroots environmental organizers are opposed to Amendment 71, as they believe it would effectively prevent them from qualifying newer oil and gas initiatives for the ballot. They argue the cost of gathering signatures in all 35 districts will prevent progressive measures from reaching the ballot, and will extend the control of politicians and special interest groups, such as the oil and gas industry. Through Amendment 71 and the potential for protest of the petitions underlying Proposed Initiatives 75 and 78, the battle over oil and gas development in Colorado continues.