Jerry Dahl, an attorney employed by the Elbert County Community and Development Services Department, advises the public about his stance on county oil and gas regulation, at the Planning Commission meeting last night, 1/26/2012.

Audio here: Jerry Dahl at EC Planning Comm 1_26_2012.wmv

It is reasonable to conclude from his remarks that Mr. Dahl is promoting a county “right” to further regulate oil and gas development, and that he foresees the need for the county to litigate the question.

As an attorney Mr. Dahl represents his client’s interest, and the client is Richard Miller, the director of the Community and Development Services Department.  Mr. Miller introduced Mr. Dahl and it is fair to conclude that Mr. Dahl accurately represented Mr. Miller’s interest.

So, the director of planning wants to regulate oil and gas development at the county level, and he’s hired an adversarial attorney who shares that interest.

And who are the people to be regulated by these forces?  You and me.  The county has an attorney sworn to zealously defend their interest, because all attorneys take an oath to zealously defend their clients’ interests, against you and me.

Should our tax money be used to fund an adversarial legal process that is aimed at us?

Hitler told the Reichstag

“The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures…The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one.”

He also promised an end to unemployment and pledged to promote peace with France, Great Britain and the Soviet Union. But in order to do all this, Hitler said, he first needed the Enabling Act.

Enabling Act, Article 1

In addition to the procedure prescribed by the constitution, laws of the Reich may also be enacted by the government of the Reich.

Enabling Act, Article 2

Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat.  The rights of the President remain undisturbed.

Barak Obama, State of the Union, 1-24-2012

Some of what’s broken has to do with the way Congress does its business these days.  A simple majority is no longer enough to get anything -– even routine business –- passed through the Senate.  (Applause.)  Neither party has been blameless in these tactics.  Now both parties should put an end to it.  (Applause.)  For starters, I ask the Senate to pass a simple rule that all judicial and public service nominations receive a simple up or down vote within 90 days.  (Applause.)

The executive branch also needs to change.  Too often, it’s inefficient, outdated and remote.  (Applause.)  That’s why I’ve asked this Congress to grant me the authority to consolidate the federal bureaucracy, so that our government is leaner, quicker, and more responsive to the needs of the American people.  (Applause.)

“Every year regulatory compliance costs U.S. businesses $1.75 Trillion. That would be enough to hire 43 Million workers.”

See this short youtube video at Episode Two: Economic Freedom in America Today.

Regulation is not only a Federal problem.  Regulation is pernicious, at every level of government.  Today Elbert County has a clear choice whether or not to greatly expand our county’s regulatory reach into energy development matters it knows next to nothing about.

At the county level the force of regulation is imposed through zoning law.  Our county’s Community and Development Services department works every day to write, refine, expand, detail and enforce their ubiquitous vision of a perfectable society.  They want to save this land and this county from its people because, essentially, they don’t trust the people.

They think they are wise stewards who, with a third-party steward’s interest, have a more valuable right to forecefully impose their vision about a sound local economy, than the stakeholders and property holders in the county have in doing so for themselves.

Zoning regulators think that by stopping people from the pursuit of economic activity, they serve a higher purpose of preservation of our local world.  This of course begs questions of preservation for what?  For who?  For when?  And for why?

Of course they have answers for all of these questions.  The answers are myths — myths consisting of more tenuous myths in a great pyramid of “smart,” sustainable, no-growth, enviro-jihad mythology.

The future beneficiaries of county zoning and regulation don’t exist.  They are a myth–not real–and unless you’re a believer, not even foreseeable.  The great probability is they will never come to exist because future unforseen circumstances will change everything long before these present day socio and eco myths can ever be tested, long after they are forgotten in favor of some future mythology as yet unkown.

Man took matters that used to be in God’s domain and invested them in Gaia, the environment and universe-trekking aliens. That’s what humans do at the margins of their knowledge where observation ends and speculation begins–we create mythologies–myths that we love.   And then we create the legalities to enforce those mythologies.

Regulatory zealots consider this sort of talk heresy.  They believe that the forced perfectibility of man and the environment is actually possible.  Just as the power that was - the Church - once defended Ptolemy’s geocentric universe against the heresy of Copernicus, so too the regulatory powers of today know, without a shadow of doubt, that they know best, and that they can sufficiently describe, legislate, and enforce a set of rules to govern our behavior, for our own best interest.

To even imagine they could succeed at such a task is a pinnacle of hubris.  When has an authoritarian process ever led to a best outcome for its subjects?  When have a small minority of minds ever created the economic output of a diverse population acting in their own interests?  The regulatory model cannot succeed.

Regulation makes inevitable change much more costly.  The regulatory parties in government who do this to us have no personal skin in the game–only myths and the iron fist–a deadly combination.  Ironically, the regulatory mission of governing progressives is about the most regressive thing they could do.

If we can’t stop creating mythologies, at least we should learn to stop legalizing them.

~

Proposed Elbert County Oil & Gas Regulations and Permitting Process
Part II, Section 26.2 Review Procedures

I. OPERATIONAL CONFLICTS WAIVER

A waiver to these Regulations shall be granted if or when the application of the requirements of these Regulations actually conflict in operation with the rules of the Oil and Gas Conservation Act or implementing regulations.

1. All applications where a waiver due to operational conflicts is requested shall be processed as a Major Oil & Gas Facility and heard in a noticed public hearing by the Board of County Commissioners. The Applicant shall have the burden of pleading and proving an actual, material, irreconcilable operational conflict between the requirements of this section and those of the Colorado Oil & Gas Conservation Commission in the context of a specific application.

Translation: You have to prove an operational conflict exists between interpretations of the county and interpretations of the state regulations.

2. For purposes of this Section, an operational conflict exists where an actual application of a County condition of approval or regulation is contrary to State statutory or regulatory requirements and where such conflict would materially impede or destroy the Colorado Oil & Gas Conservation  Commission’s goals of fostering the responsible, balanced development, production, and utilization of the oil and gas resources in the State of Colorado in a manner consistent with protection of public health, safety, and welfare, and protection of the environment and wildlife resources.

Translation: The county determines the standard by which it will accept a conclusion of an operational conflict.

3. County requirements in areas regulated by the Colorado Oil & Gas Conservation Commission that fall within County land use powers necessary to protect the public’s health, safety, and welfare pursuant to the application presented, and which do not impose unreasonable burdens on the Applicant, or materially impede the State’s goals, shall be presumed not to present an operational conflict.

Translation: The county will interpret when an operation conflict exists and whether the conflict presents an unreasonable burden to the applicant.

4. If the Board of County Commissioners determines that compliance with the requirements of these Regulations results in an operational conflict with State statutes or regulations, a waiver to this section shall be granted, in whole or in part, but only to the extent necessary to remedy the operational conflict. The Board of County Commissioners may mitigate any impacts by conditioning the approval of a waiver as necessary to protect the public health, safety, and welfare. Any such condition shall be such that the condition itself does not conflict with the requirements of the Colorado Oil & Gas Conservation Commission.

Translation: The county says whether a waiver that they might offer will satisfy the conflicting state requirement.

5. If the Applicant, or any person entitled to receive notice of the original application for the Oil & Gas. Facility, wishes to seek judicial review of a final Board of County Commissioner’s decision on the operational conflict waiver request, appeal to the district court shall be pursuant to C.R.C.P. Rule 106(a)4.

Translation: If you don’t like it, sue us.

From: Kurt Schlegel
Sent: Wednesday, January 11, 2012 12:22 PM
To: Marvin and Nancy Maul; Del Schwab; John Shipper
Cc: Richard L. Miller
Subject: DRAFT Elbert County Oil and Gas Regulations
Good Afternoon Mr. Maul,

Thank you for sending me your thoughts / opinions regarding County based land use regulations.  I have followed the recent actions that have been taken or deferred by other Counties regarding the adoption of specific land use regulation relating to Oil & Gas Exploration.  As County Commissioners we are tasked with adopting and enforcing land use rules and regulations in order to protect the property values of all property owners in the County.

I believe it is County government’s duty to ensure that Oil & Gas exploration in Elbert County is done responsibly and  staff has worked diligently to incorporate lessons that have been learned from other Colorado counties in our proposed Oil & Gas Regulations.  Please be aware that these DRAFT regulations have nothing to do with the actual drilling / hydraulic fracturing / harvesting of resources processes.  These are regulated by the Colorado Oil and Gas Conservation Commission (COGCC).  Our County regulations are designed to ensure the public safety by designating traffic / haul routes for equipment, specify where and how equipment can be stored safely, how waste byproducts are handled and stored, etc.  In addition our staff has worked to ensure that the proposed regulations do not pre-empt any regulation already in place by the State of Colorado.  I invite you to review the DRAFT document which is available on the Elbert County website at http://elbertcounty-co.gov/dept_CommunityandDevelopmentServices.php

As I stated previously, the County is also responsible for the enforcement of all zoning and land use regulations.  The taxpayers expect this service and are entitled to this regulatory authority that is designed to protect everyone’s property values and ensure the public’s safety.  The fact that we will have clearly defined what is expected of all surface activities associated with oil and gas exploration will make it easier for staff to enforce, thereby saving the taxpayers money in the long run.

I appreciate your input and invite you to attend, or be a part of, the Planning Commission’s review process.  Their first meeting to discuss the DRAFT Oil & Gas Regulations is scheduled for Thursday - 26 January, 2012 at 6:00 pm.

Sincerely,

Kurt C. Schlegel

Elbert County Commissioner; District 2
215 Comanche Street
Kiowa, CO  80117
303-621-3139
Kurt.schlegel@elbertcounty-co.gov

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

From: Marvin and Nancy Maul
Sent: Tuesday, January 10, 2012 3:05 PM
To: Del Schwab; Kurt Schlegel; John Shipper
Subject: Oil and gas regulations

To the Elbert County Board of County Commissioners:

This refers to the draft of new oil and gas regulations being prepared by Richard Miller, Director of the Elbert County Community and Development Services that I understand will be brought before the Board for a vote shortly.

I would suspect that by now the Commissioners are aware of the lead editorial contained within the January 9 issue of The Denver Post entitled “Current fracking rules enough” which summarizes pretty well the intent of the editorial.  I understand as well, that at least two Colorado counties (Arapahoe and Gunnison) have been convinced that their proposed oil and gas proposed regulations represent an unnecessary duplication of regulations already adopted by the Colorado Oil and Gas Conservation  Commission, and are withdrawing them.

With all due respect I am concerned that actions taken by the Board to date as I understand them, seem to indicate that Elbert County is moving toward adoption of a 60-page set of regulations, tailor-made for Elbert County, even to the point of hiring outside counsel to aid in the drafting of the document. I cannot understand (and I refer again to the Denver Post article) why the County feels the need for a set of regulations that will largely superimpose over the existing COGCC regulations

Further, we recognize that Elbert County as with most other governmental entities across the country is in a financially precarious position.  Adding the regulatory purview  of Mr.. Miller’s proposal to the county’s populace would include not only the direct costs of the consequences of the regulations as well as additional costs imposed by the mechanisms for enforcement of the regulations.  How many new employees will Miller be able to add to his department if these regulations with resultant enforcement are adopted?  It seems to me that in view of the state’s regulatory actions, the County’s tacking on of these new costs will represent a highly wasteful use of taxpayers dollars, and it’s not as if the environmental concerns of the County’s residents were being overlooked!

Finally, as an Elbert County taxpayer, I am wondering if, in the event the County decides along with the other counties to instead adopt the COGCC regulations, will the County be able to recover some of the funds being expended on the outside lawyers?!

Sincerely yours,

Marvin O. Maul
Colorado Springs, CO

Let’s see how many instances of regulatory duplication you can find in the proposed Elbert County Oil and Gas Regulations, and regulations already enforced by the COGCC at the state level:

Draft Oil and Gas Regulations for Elbert County, 12-27-2011 Version

Colorado Oil and Gas Conservation Commission - Cross Reference

Colorado Oil and Gas Conservation Commission - Rules and Regulations Table of Contents

(See the RULES heading at http://cogcc.state.co.us/ for detailed rule text.)

~

Should there be any duplication of regulation between Elbert County and Colorado?  No.

Should a county with tight budgetary constraints that has had to materially cut back work hours and numbers of personnel be taking on duplicative regulatory functions already addressed by the State of Colorado?  No.

~

Elbert County can ill afford an oil and gas regulatory empire headed by a czar of Community and Development Services.

U.S. Supreme Court
ICC v. Brimson, 154 U.S. 447 (1897)
Interstate Commerce Commission v. Brimson
No. 883
Argued April 16, 1894
Decided May 26, 1894
154 U.S. 447

“Power given to Congress to regulate interstate commerce does not carry with it authority to destroy or impair those fundamental guarantees of personal rights that are recognized by the Constitution as inhering in the freedom of the citizen.”

“The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot he committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment.”

“Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses or can be invested with a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson,

Page 154 U. S. 479

103 U. S. 168, 103 U. S. 190. We said in Boyd v. United States, 116 U. S. 616, 116 U. S. 630 — and it cannot be too often repeated — that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of his life. As said by MR. JUSTICE FIELD in In re Pacific Railway Commission, 32 F. 241, 250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

Now, see: 

The American Community Survey

~

Democrats Use Fiscal Crisis As Weapon To Bash GOP
Investors Business Daily Posted 12/27/2011 07:09 PM ET

Debt: Wasn’t it just last summer Republicans and Democrats nearly came to blows over raising the debt ceiling? Well, guess what — President Obama is back, asking for another $1.2 trillion. Are we being gamed here? (more…)

PRESIDENT OBAMA: Well, we’re not done yet. I’ve got five more years of stuff to do. But
not only saving this country from a great depression. Not only saving the auto industry. But
putting in place a system in which we’re gonna start lowering health care costs and you’re
never gonna go bankrupt because you get sick or somebody in your family gets sick. Making
sure that we have reformed the financial system, so we never again have taxpayer-funded
bailouts, and the system is more stable and secure. Making sure that we’ve got millions of
kids out here who are able to go to college because we’ve expanded student loans and
made college more affordable. Ending Don’t Ask, Don’t Tell. Decimating al Qaeda, including
Bin Laden being taken off the field. Restoring America’s respect around the world.
The issue here is not gonna be a list of accomplishments. As you said yourself, Steve, you
know, I would put our legislative and foreign policy accomplishments in our first two years
against any president — with the possible exceptions of Johnson, F.D.R., and Lincoln — just
in terms of what we’ve gotten done in modern history. But, you know, but when it comes to
the economy, we’ve got a lot more work to do. And we’re gonna keep on at it.

12-11-11 60 Minutes with Obama interview

Problems with the 07-2011 Draft Oil & Gas Regs proposed for Elbert County Zoning

Page 5:  “…unless approval has been granted pursuant to these regulations from the Director of Community & Development Services (C&DS) or the Board of County Commissioners (Board).”
Are we setting up an unelected czar of oil and gas zoning enforcement, unaccountable to the voters?

Page 6:  “the County Attorney or where the Board deems it appropriate, the District Attorney……may [act]”
Here again, should enforcement of zoning be allowed without the approval of an elected official?

Page 21:  “Safety practices in accordance with state and federal law, including the Occupational Safety and Health Act of 1970….”
Elbert County should not be in the business of enforcing federal OSHA law.

Page 23:  “The oil and gas facility shall not cause significant degradation of wildlife, including any federal, state or Colorado Natural Heritage Program-identified species of concern, or to their habitat.  At a minimum, the operation shall comply with the CDOW’s recommended…..”
The CDOW, Colorado and the federal government can enforce their own wildlife regulations.  Elbert County does not need to duplicate those efforts.

Page 23:  “When planning facilities, the Applicant shall consult and reference the current wildlife concurrence data, including the CDOW’s Natural Diversity Information Source database…”
Bio-diversity is buzzword science with no greater purpose than stopping development.  It has no place in industry zoning regulations.

Page 25:  “install wildlife crossovers and escape ramps where the trench crosses well-defined game trails”
Presumably this would be for the really smart or well trained wild game, who know how to use such devices.

Page 26:  “The applicant shall identify the proposed source of fresh or potable water required for the oil and gas facility and dust control, along with a letter from the Colorado Division of Water Resources or a copy of the Water Court decree indicating that the water supply source is acceptable for the use at the oil and gas facility.”
Here again, water regulation falls outside of Elbert County’s jurisdiction.  It’s a matter for the State Engineer.

Page 37:  “the right of the county to determine land uses”
Isn’t it the people’s right to determine land use within allowed limits?  I thought government in America was based on limitations, not rights.

Page 39:  “No oil and gas facilities shall cause a reduction in solar radiation…”
Isn’t it a reach to blame the existence or absence of solar radiation on an oil well?

Page 39:  “Greenhouse Gas Reduction”
Zoning regulations should not incorporate the spurious science of global warming language.

Page 40:  “The county finds that the standard industry practice of injecting highly toxic substances under high pressure into the earth for the purpose of fracturing geologic formations poses an unacceptable risk of polluting these invaluable ground water resources.”
This statement ascribes a harmful intent to the oil and gas industry as a “standard practice.”  The statement is prejudicial, unfounded, and not conducive to sound science or good industry relations.

If the Community and Development Services department needs a toxic blend to regulate, look to the toxic combination of subjects below under which this post is filed.

“DECEMBER 14, 2011

Congress mandated purchase of 250 million gallons in 2011. Actual production: 6.6 million.

‘We’ll fund additional research in cutting-edge methods of producing ethanol, not just from corn but from wood chips and stalks or switch grass. Our goal is to make this new kind of ethanol practical and competitive within six years.”
—George W. Bush, 2006 State of the Union address (more…)

Mary Kay Henry, president of the Service Employees International Union, in an editorial in the Wall Street Journal today, said Congress must pass the American Jobs Act immediately so Americans can be put to work “rebuilding outdated and dangerous roads and bridges and ensuring our kids have first-class schools….keep[ing] teachers in our classrooms, police on the beat, healthcare workers at our hospitals and clinics, and ensure[ing] that we have enough firefighters to protect our communities.”

She says [in so many words] the Occupy Wall Street protests are a new spark of destiny for a new union resurgence to give every American a job, presumably working in road and bridge construction, public education or as a first responder of some sort.

Leave aside, for the moment, that Stimulus I already swelled the ranks of police, fire, teacher, road construction and school janitor staffs with fresh new faces, and leave aside that Stimulus I already re-equipped first responders and construction crews across the nation with new fire trucks, ambulances, police cars, SWAT vans, and all the gear that goes into them.

Stimulus I and II [the American Jobs Act] are funded with public debt and they don’t add a nickel of net new value to the economy.  They are wealth redistribution schemes that move capital from the productive private sector into the consuming public sector, with a large amount of government overhead consumed in the process.  They don’t add any productive–wealth generating–capacity to the economy.  Public sector employers can only hand out paychecks for as long as the debt Ponzi scheme funding them keeps functioning.  The jobs they provide don’t create products, don’t yield profit, don’t generate capital, and don’t lead to new investment.

Eventually, perhaps soon, the well will run dry on public debt and a whole lot of unfunded public employees will become very angry.  Many of them will be well armed for a living.

Only jobs created through private capital can potentially–there’s always risk–produce a profit and thereby build new capital which can grow the economy and create more new jobs.  Only private sector jobs can replicate capital to grow new jobs.  Publicly financed jobs can never do this.  They may look nice and shiny driving down the road in a brand new fire truck or police vehicle, but those vehicles are symbols of a debt that will never be re-payed, and a job that will never create wealth to re-invest and grow our economy.

Moreover, public sector jobs pull scarce labor out of the private sector and thereby raise the cost of labor to the private sector.  Increased costs reduce the private sectors productive capacity to generate profit, capital and wealth, and to create more productive jobs.  In addition, more public sector jobs enlarge vocal voting constituencies who advocate for more public spending, more public sector jobs, more taxes, and more non-productive public-debt-financed economic activity.

It is a pernicious, vicious cycle, and Mary Kay Henry and the Occupy Wall Street bunch couldn’t be more wrong.

WikiLeaks and a fragile community - David Brooks NYT Opinion

Consider the effect computers have had on the insurance industry, and consequentially, on all of the risks (health, life, fire, accident, loss) funded by the insurance industry.  Prior to computers, the historical price for an insurance provider to cover a beneficiary was the product of static market conditions.  Insurance is a financial service product based on knowledge of risk, and the knowledge of various risks to beneficiaries had been stable for many years.  With the advent of computerization, beneficiaries and risk could be correlated in the machine so that insurers could now choose which beneficiaries were least likely to cost them benefits.  Computer correlation of beneficiary data fundamentally shifted the bargaining power between insurers and beneficiaries, and as we can see with health insurance, the consequences to this radical shift are still playing out in a myriad of market and government reactions. (more…)

I see where community organizers are fanning out into the inner cities, setting up offices and combing social networking sites like Facebook to enroll children in SCHIP and adults in MEDICAID before these citizens turn into federal criminals in 2014 for lack of health insurance.  Of course, doctors can’t afford to serve MEDICAID and SCHIP patients because reimbursement rates are low and claim denials are high, but the important thing is to keep those community organizers employed between election cycles.  One wonders just who are these people who can afford the time and means to engage in social networking while also meeting the means test for MEDICAID and SCHIP eligibility.