Editor’s note: Tara Opsal, associate professor of sociology, and Stephanie Malin, assistant professor of sociology at Colorado State University, wrote this piece for The Conversation in September 2018. Colorado State is a contributing institution to The Conversation, an independent collaboration between editors and academics that provides informed news analysis and commentary to the general public. See the entire list of contributing faculty and their articles here.
Coloradans will vote on a ballot initiative in November that requires new oil and gas projects to be set back at least 2,500 feet from occupied buildings. If approved, the measure – known as both Initiative 97 and Proposition 112 – would mark a major change from their state’s current limits: 500 feet from homes and 1,000 feet from schools.
As sociologists who have researched oil and gas drilling in the communities that host it for the past seven years, we think this measure would provide local governments and Coloradans more say over where drilling occurs and enhance the rights of those who live near these sites.
Partly because fracking and related industrial processes often occurs close to homes, schools and other occupied buildings, the debate over Proposition 112 is contentious.
Opponents, especially those funded by industry groups, argue that stricter rules will mean less state tax revenue, job losses and weakened private property rights. Proponents express concerns about air pollution, earthquakes, water well contamination and explosions to explain why they want the public to have more sway.
But many state governments have tried to stymie the attempts of communities to gain this power. For example, Colorado’s Supreme Court ruled in 2016 that local communities have no right to regulate where drilling occurs.
And industry-funded groups and the Colorado Farm Bureau, which represents farmers, ranchers and other agricultural interests, are countering this electoral effort to restrict drilling with their own measure. Known as Amendment 74, it would force any city or county government that limits drilling to compensate property owners if new setback rules were to lower property values or reduce revenue from fracking leases.
Regulations and leasing
Members of the public and local governments have successfully challenged limits on local control over fracking in court before. For example, Pennsylvania’s Supreme Court affirmed the power of communities to regulate the oil and gas industry locally when it ruled in 2016 that parts of a law known as Act 13 were unconstitutional.
In that instance, the court ruled against a provision that barred doctors from sharing information about possible toxic exposure if they were given access to industry information about the chemicals used in fracking. It also blocked the enforcement of a measure that allowed the use of eminent domain to site natural gas storage facilities.
But as far as we can tell, Colorado’s ballot initiative marks the first time voters can potentially control the set-back distances of oil and gas facilities from rivers, homes, schools and other buildings in their communities.
Regulating oil and gas leases on private land is hard partly because they are privately negotiated contracts between companies and landowners. To learn more about what happens during these negotiations, we interviewed more than 100 Coloradans and Pennsylvanians about their experiences negotiating these drilling leases.
In our recently published study, we found that these people feel inconvenienced at best. Most told us they felt exploited and mistreated due to the leasing experience despite having made money off of leasing their land or mineral rights.
Some scholars who look at how drilling affects local communities argue that this process empowers private property owners because they play a direct role in deciding the terms of these negotiations. And some of these folks can even get rich from fracking lease earnings.
Certainly, landowners – including some of the people we interviewed – have earned income from these contracts, though the amounts can vary from a few dollars to thousands of dollars per acre. But the overwhelming majority of the Pennsylvanians and Coloradans who met with us in their kitchen tables, backyards and farms described feeling disempowered when they signed fracking leases.
“I knew zip about gas production,” explained a man who operates a small-scale dairy farm in northeastern Pennsylvania and we are calling “Anderson” to honor our promise of confidentiality. “We had no time, we either made a decision to do it or not do it.”
During private negotiations, landmen – the company representatives who try to convince people to sell or lease their land and mineral rights – discouraged neighbors from teaming up to get a better deal or even talking with one another about the terms they’re considering, interviewees told us.
In some situations, when residents negotiated for better-than-average lease terms, landmen made them sign nondisclosure agreements that legally forbade sharing information.
Same land, different owners
Occasionally in Pennsylvania and almost always in Colorado, these fracked properties belong to two or more parties. One owns the surface and someone else possesses the rights to whatever minerals lie beneath it.
And, in Colorado, surface landowners are legally required to provide mineral owners access to their resources.
Many people we interviewed owned land but not the rights to the minerals below it. With limited power to stave off drilling in their backyards or on their farms, the surface rights owners we interviewed said they felt like “sitting ducks” and “unprotected.” They told us that they saw attempting to keep an oil and gas company off their land as “futile.”
“John,” a farmer who lives south of Denver, tried to fight the placement of a pipeline that split his farm into two less usable pieces. When he tried to fight the pipeline placement, he told us, he overheard industry representatives speculating that they simply needed to outspend his opposition.
When the people we interviewed owned the mineral rights tied to their property but did not want to lease them, an energy company could pursue them through a state statute allowing a practice known as “forced pooling” in both Pennsylvania and Colorado.
It makes leasing mineral rights mandatory, leaving landowners with no way to say no when a company wants to frack their property.
We also heard about the personal costs participants experienced after they signed leases. Ranchers explained they lost productive pastureland. Other residents believed they became ill because of air pollution. And many farmers described lasting damage to idyllic homesteads.
Even when these factors violated their leases or laws governing oil and gas practices, nearly all lease signers we interviewed told us they had a hard time getting oil and gas operators with whom they’d signed leases to address any violations of those contracts.
To “Connor,” a homesteader in southern Colorado, the negotiation process felt “like having a second job.” At times,“ he told us, “it was absolutely overwhelming. I think we did absolutely everything we could as private citizens to try and mitigate the impacts and in the end, it was futile.”