Establishment publications like the New York Times and The New Yorker are quick to describe the relentless drift of Western Europe toward oligarchy and fascism, or to bemoan the end of democracy in Turkey, but they are less inclined to identify and evaluate similar events when they occur in their own back yard. This proclivity must owe something to the blindness inherent in American exceptionalism.
Several weeks ago the Colorado Supreme Court denied the appeal of two Colorado cities to ban or postpone oil and gas development in their cities because of citizen health and safety concerns.
The Court’s decision focused only on the rights of cities, not on the rights of citizens. As I will explain later, this is a distinction with significant meaning in Colorado since our state constitution is proudly populist and protective of the individual as bulwark against corrupt or narcissistic government. In this our predecessors were prescient.
Its hallmark in this regard is Article V, which declares the citizens, as sovereigns, reserve for themselves the right to legislate; that this right is a first right, superior even to the legislatures; and that it shall not be interfered with at any level of state or local government. Its means of implementation is the initiative and referendum. Both of which require a simple majority of those voting. The legislature, despite the constitutional prohibitions, has made the referendum a nullity. This Court’s decision threatens to do the same to the initiative, or so the corporate press and the ruling elite gleefully declared.
Actually, what the Court did was to further damage the constitutional guarantee of Home Rule, Art XX. That constitutional provision says home rule cities have the right to regulate within their boundaries on matters of local concern, and that such regulations are superior to state regulations if they conflict. The courts and the legislature have been busy over the years whittling away at this right of local control, with the Court arguing that if the regulatory issue was of both local and state interest, the state’s interest is generally controlling. Neither the legislature nor the court seem to have been deterred by the fact the constitution does not allow for such parsing.
I don’t know what could be more local and subject to city regulation than the prospect of an oil well in somebody’s back yard, but the Court saw it otherwise. Dwell for a moment on the prospect of a giant gas and oil operation, maybe 22 or more wells within a few hundred feet of your home–All of them spewing poisons into the atmosphere; all requiring the construction of large, onsite industrial facilities for operational support; and all relying on continual heavy truck traffic over their useful life. Given these realities, can there be any question about why the people of these cities were hoping for a sense of empathy and a shared value of citizenship from the Court, but the interests of property, plunder, and privilege prevailed.
Indeed, the Court, a collection of corporate lawyers appointed by the last four Governors who were or are employed to some degree by the oil and gas industry, said hooey to the constitutional guarantee of Home Rule, but carefully dignified their contempt in 28 pages of legal legerdemain dressed up in flawless punctuation. The rights of cities, said they without dissent, had been preempted by the legislature in the Colorado Oil and Gas Conservation Act since oil and gas development was too important to be left to local government.
This decision makes the constitutional guarantee of home rule on issues of dominant local interest another nullity, for if the legislature can preempt local regulation of oil wells in people’s back yards, they can preempt any attempt at local control provided the money and corporate pressure are great enough.