In early 2012, Richard Miller was still an Elbert County planner. Miller was consulting with Jerry Dahl, a lawyer who specializes in representing Colorado counties when they conflict with the state of Colorado over land use regulatory law.
Dahl had given Miller advice in writing a new zoning law for Elbert County to regulate oil and gas operations. Dahl believes that Colorado counties should regulate oil and gas operations because the Colorado State Legislature gave Colorado counties land use regulatory authority, and an oil and gas operation is a land use.
The problem with Dahl’s broad interpretation of county land use regulatory authority is that it is unlimited. All human activity occurs on land, in water, or while flying in air. The vast majority of it occurs on land. According to Dahl, any use of land falls within the regulatory scope of a Colorado county. Did the Colorado Legislature really mean to give counties in Colorado absolute control over what happens on Colorado land? Not likely in America.
So Miller and Dahl wrote oil and gas zoning regulations for Elbert County to govern oil and gas land use operations.
Since then, these regulations have morphed into different legal structures, but they’ve retained several key rules that, once enacted, will probably conflict with state regulations. Jake Matter of the Colorado Oil and Gas Conservation Commission and the Attorney General’s Office has repeatedly warned Elbert County planners since January of 2012, by letters and in person, of the potential for several operational conflicts in Elbert County’s regulatory proposals.
Today, two days before the Elbert County Planning Commission is scheduled to conduct a public hearing about their proposed oil and gas regulations, at least two points of expected operational conflict are still in the proposal - a provision to regulate open water pits, and a provision to regulate water produced from an oil well when used for dust mitigation.
Even though Richard Miller has moved on to other employment, the philosophy introduced by Dahl of challenging state regulations with conflicting county regulations, continues in practice by Elbert County planners.
In January of 2012, Dahl explained at a Planning Commission meeting how operational conflicts between county and state regulations get resolved. Basically, a lawsuit between a county and the state provides a forum to hear evidence about a claimed operational conflict. Interestingly, county vs. state lawsuits are what Jerry Dahl does for a living.
Basically, Dahl sent Elbert County planners down a regulatory trail that has generated repeated warnings from the state about potential operational conflicts, with full knowledge that the process to resolve such conflicts is a county vs. state lawsuit in Dahl’s specialty.
Jerry Dahl has every right to do what he can to generate litigation business for himself to advance causes that he believes in. We have 1st Amendment guarantees of that freedom.
But should Elbert County be used in this manner to advance a political agenda held by one man, or by a special interest minority such as an environmentalist lobby, in an “evolving area” of law?
Litigation is very expensive while Elbert County is cash poor. Previous Boards of County Commissioners have been excoriated over litigation that occurred under their terms, regardless of whether or not they had anything to do with starting it.
And now the same vocal minority who screamed most loudly over the expense of past county lawsuits are the ones pushing an oil and gas regulatory proposal that is headed toward some really expensive litigation with the state to ferret out operational conflicts.
A key question people should think about is whether the proponents of the new oil and gas regulations are bona fide. Are they acting in good faith?
Have they pushed us into a tortuous legal path against the state that is expensive, and perhaps most importantly, time consuming, in order to bring Elbert County into some higher state of compliance with their environmentalism objectives?
Or does environmentalism merely provide cover for these folks to exploit any available technicality to buy time to completely frustrate oil and gas development in Elbert County? They play an image for public consumption of being cooperative and working within the system; meanwhile, endless procedural delays make sure nothing ever happens.
But so long as the right people sit on the BOCC, we probably won’t hear much about how much this is costing all of us.
Costs of litigation, costs to energy developers, opportunity costs of lost revenue to mineral owners, none of these will rise to the level of a material concern while an agenda lies on the table.
Tuning out the clamor of agenda pushing usual suspects can be difficult in Elbert County. They control most of the print media in the county, they have a significant web presence, and they virtually run the county at all levels - the BOCC, the Planning Commission, the CDS Department, and a host of subordinate committees and public/private forums.
The silent majority of Elbert County citizens, however, the ones you won’t see published and won’t hear much from at any public meeting, are people who have enough struggle just getting through their daily lives. They do not seek to further burden life in Elbert County with more struggles, no matter what the cause.
This silent majority have every right to expect their public officials to act in a manner to mitigate struggles, to avoid expensive litigations, to act frugally, and to not be legal spendthrifts in service of a minority agenda.
Let the Jerry Dahls go find some other county to milk.