DENVER
03/07/2013 10:08 am ET Updated Mar 07, 2013

Hickenlooper Says State Willing To Compromise Over Fracking Ban In Fort Collins To Avoid Lawsuits

After criticism from Fort Collins city council and many residents of the northern Colorado city, Gov. John Hickenlooper appears to be softening on his original stance of suing any city that bans fracking within their borders.

On Wednesday, Hickenlooper spoke to The Coloradoan and said that the state would be willing to compromise with cities looking to ban fracking, rather than sue them, if the cities can compensate mineral rights owners.

“When you ban fracking, you’re telling all those people that paid their money, their savings, their investments to get their mineral rights now they’re being taken away,” Hickenlooper said to The Coloradoan. “That’s called a taking."

The "taking" that Hickenlooper refers to has to do with land ownership rights. In Colorado, as in many states, land ownership is divided between two sets of owners: the owners of the aboveground land and the owners of the underground land, and in this case, the minerals, oil and natural gas that may be contained within the ground. It's called a "split estate" and Hickenlooper says he's open to banning hydraulic fracturing and other oil and gas exploration within city limits if the parties that own the underground land are properly compensated for the minerals that may be held there which they currently own.

Paying off the owners of the mineral rights could come at a very hefty price tag for the city of Fort Collins and it's not clear if its a viable option for the city or the individuals that may own the aboveground land. To help, Hickenlooper did add that the state would be willing to put up some of the money if the community can put up some of the money.

The change of heart from the governor comes just two days after Fort Collins City Council banned fracking within city limits defying a recent threat from Gov. John Hickenlooper saying the state would sue any city that enacts a ban on hydraulic fracturing.

In an interview with CBS4 last week, Hickenlooper told Shaun Boyd in no uncertain terms that the state will sue any city that bans fracking within their borders.

"Nothing makes me less happy then to have to be in a lawsuit with a municipality," Hickenlooper told Boyd. "The bottom line is, the way we have a split estate in this part of the world -- pretty much all of the western United States -- someone paid money to buy mineral rights under that land. You can't harvest the mineral rights without doing hydraulic fracturing, which I think we've demonstrated again and again can be done safely."

Despite that threat, The Coloradoan reports that council members passed the ordinance 5-2 and Mayor pro tem Kelly Ohlson had no kind words for the Colorado governor saying Hickenlooper has no credibility with him, nor do state regulators. “I believe the governor should spend his time protecting the health and safety and welfare of citizens of Colorado rather than acting like the chief lobbyist for the oil and gas industry,” Ohlson said. “In fact, I think he should literally quit drinking the fracking Kool-Aid.”

Ohlson added: "I don't do well with threats, so I'm just going to vote my conscious and what I think is the best decision and that would be to ban fracking in the city of Fort Collins," 9News reports.

"The governor takes no joy in suing local government," Gov. Hickenlooper's spokesman Eric Brown said, according to The Denver Post. "He respects local planning and control. He also has an obligation to uphold the law. The governor wants to be honest with local communities about the state's legal obligations. Bans like the one under consideration in Fort Collins violate state law."

Now Fort Collins is in the state's crosshairs, but it's not the first time the state has sued a city over oil drilling rights. When the controversial natural gas drilling technique also known as "fracking" was banned in Longmont in 2012, the state sued the town claiming that the city's oil and gas regulations illegally overstepped the state's authority to regulate the industry.

And in 1990s the Colorado Supreme Court overturned an oil and gas ban in Greeley, but activists against fracking say that that ban was specifically about oil and gas drilling, not fracking, as the drilling technique had not become as widespread during that time. Our Longmont, an anti-fracking group, says that fracking violates the rights of protection of property and the right to live healthy, safe lives granted to citizens in the Colorado constitution.

One day after Fort Collins announced the initial approval to ban most oil and gas exploration within city limits, the oil industry also suggested that it may also take legal action against the city if the ban goes into effect, The Coloradoan reported last week.

"We ardently hope that this ordinance will be defeated on second reading so there will not have to be discussions of going to court to allow an activity that the State Supreme Court has clearly stated cannot be banned within a city, county or municipality," Colorado Oil and Gas Association CEO Tisha Schuller said in a statement.

The ban comes just weeks after greenish-brown fracking fluids leaked from a well in Windsor, just east of Fort Collins, for 30 hours before finally being capped off. And just today The Coloradoan reported that the leak is being called a "blowout" and was directly related to fracking.

Hickenlooper has made no secret of his support for hydraulic fracturing, but earlier this month he took one big step further and testified that he actually drank fracking fluid.

"You can drink it. We did drink it around the table, almost ritual-like, in a funny way," Hickenlooper said before the Senate Committee on Energy and Natural Resources.

From The Washington Times:

Sen. Al Franken, Minnesota Democrat, found humor in the governor's admission and asked if the experience was part of some bizarre occult practice.

"No, there were no religious overtures," Mr. Hickenlooper responded.

The governor testified that it wasn't "tasty" but added, "I'm still alive."

Hyrdaulic fracturing is a controversial process of injecting water, sand, and chemicals underground at very high pressures to release natural gas. Most companies however have declined to reveal what components make up their fracking fluids, calling them "trade secrets."

Hickenlooper is not the first person to have claimed to drink fracking fluid. A report by the Associated Press in 2011 said that Halliburton Co. CEO Dave Lesar offered up a company executive to demonstrate the safety of theirnew fracking fluid recipe CleanStim, by drinking it during a keynote speech at a conference held by the Colorado Oil and Gas Association.

That being said, Halliburton says on its own website that "CleanStim fluid system should not be considered edible." A report by The Denver Business Journal last year also pointed out that it's not even known whether CleanStim is being used in Colorado since that decision has been left up to the oil and gas companies.

Invited to speak at the committee by Democratic Sen. Mark Udall, Hickenlooper was arguing that states should be taking the lead in natural gas regulation rather than the federal government.

Last year when Hickenlooper was invited to give the keynote address at The Atlantic's Next Generation Energy Forum, he vigorously defended the practice and even went so far as to say that the anxiety about fracking "isn't directly connected to the facts."

"There's a lot of anxiety out there, certainly with hydraulic fracturing and the kind of unorthodox technologies for the extraction of natural gas, but oftentimes that anxiety isn't directly connected to facts," Hickenlooper said during the forum.

The Fort Collins fracking ban will now go into effect in in less than two weeks.

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