True federalism could imperil the left

By: Scott Weiser

June 8, 2017 Updated: June 9, 2017 at 7:39 am

Virginia’s Democratic Governor Terry McAuliffe and several other governors have rediscovered federalism in declaring they will act alone to uphold the Paris climate accord.

McAuliffe pledges to “abate, control, or limit” power plant emissions. A bevy of liberal mayors and university presidents threaten to do the same sort of thing with regard to carbon emissions, evidently without regard for costs.

Good for them. And perhaps goodbye to them.

Gov. Hickenlooper proposed something similar after the Supreme Court of the United States put then-President Barack Obama’s Clean Power Plan executive order on hold. Hickenlooper objected and wanted to proceed with Colorado’s version of the plan.

“Our goals were very aggressive goals, and they are not the same, but they are very similar to what the Clean Power Plan wants,” Hickenlooper told reporters in 2016. Then, President Trump won the traditional Democratic stronghold of Pueblo County and shocked some liberals into a self-evaluation.

Trump won in part because Colorado’s existing clean power mandates caused ruinous electric rates in Pueblo. Trump landed in Pueblo during his campaign and promised an end to the costly war on energy, and the message stuck.

Hickenlooper saw the writing on the wall and backed off the idea for a unilateral imposition of Obama’s Clean Power plan. That was the politically astute decision, because Hickenlooper can’t govern if he isn’t the Governor anymore.

Many people, including columnist Kathleen Parker in her recent column, mistake federalism as meaning big, centralized federal government. Federalism is more accurately the principle that our nation is not a single entity ruled by a central government like the socialist utopia of Venezuela. It is a republic made up of sovereign member states.

The federal government has limited powers, which are expressed in the Constitution. As plainly stated in the 10th Amendment, powers not expressly granted to the federal government by the Constitution belong to the states or the people. That is the doctrine of federalism.

Under federalism, states have very broad latitude to govern themselves. The highest level of authority is we, the people. We have the ultimate authority to revoke any power we have previously granted to government. Likewise, we have the ability to grant new government powers as we see fit.

The Declaration of Independence says that just governance requires the consent of the governed. Federalism says consent should mostly manifest regionally and locally, enhancing accountability among those who govern.

Nowhere was this principle needed more than during the reign of Obama, a socialist/progressive who routinely ruled by executive fiat, showing disdain for the rule of law and the consent of the governed.

Trump, a businessman and political novice, won because the governed were outraged at Obama’s disrespect for their consent. President Trump is dismantling Obama’s legacy in order to restore federalism and the power of the states as equals with the federal government.

Meanwhile, the political left is turning to federalism to try and salvage something from the disaster of underestimating the will of the people. It may not be a wise choice, but time will tell.

Thanks to federalism and ignored Americans, socialist are less harmful. Operating at the state and local level instead of the federal level, they are held accountable more easily. When the economic burdens of socialist arrogance hit home citizens will rightfully blame the governors, mayors, university presidents and council members who are responsible rather than the federal government.

They will be accountable to the people who know them best and who are in the best position to remove them from office if they overstep. In favoring federalism, that is exactly what the founders had in mind.

This column was originally published in the Colorado Springs Gazette

Public pipeline maps are a bad idea

By: Scott Weiser

May 26, 2017 Updated: May 26, 2017 at 9:45 am

A 30-inch natural gas pipeline exploded in the Crestmoor neighborhood of San Bruno, Calif., on September 9, 2010.

The explosion killed eight people and destroyed or damaged more than 38 homes. The pipeline, built in 1954, was found to be defective because of poor construction and faulty welds.

A single-family home exploded in Firestone on April 17, after natural gas leaked into the basement from a nearby gas well flow line that had not been shut off and properly capped. The explosion killed two and severely injured another. Fault has not been fully assessed, but it appears the gas company and subdivision developer may be jointly responsible.

At play are two issues. The first is construction safety standards for new wells and pipelines. All new wells and pipelines must meet stringent standards for safety, during drilling and long-term during use. Such regulations must be strictly enforced and policed to ensure compliance.

The Firestone explosion highlights the second issue: dangers of development near old wells that are abandoned, dormant or in use.

As was the case in San Bruno, construction standards in the past can be markedly different from those of today. This makes inspection of older wells imperative if we are to avoid another Firestone tragedy. To that end, Gov. John Hickenlooper ordered companies to inspect all of their wells for compliance. The industry is responding to this order, as it should.

But this does not address future risks of development in established oil and gas fields that are webbed with networks of underground piping.

In response to the Firestone disaster, the Legislature considered a bill to require mapping of all underground pipes. Most agree it is a necessary move.

At issue is whether infrastructure maps should be open to the public.

National security regulations already limit public access to certain types of industrial facility information.

This is to deny terrorists information they might find useful in planning attacks. These security requirements caused a lot of controversy when the Department of Homeland Security implemented them, but history has shown that public access to some records creates valid national security concerns.

This would be true of records disclosing locations of underground natural gas and oil conduits.

Rather than create another public safety concern, the law should simply ensure that developments in pre-existing oil and gas fields are protected from mistakes like those which caused the Firestone explosion – which was a rare event.

This can be done in the permitting process for development. State government should simply require thorough surveys for oil and gas infrastructure before development begins. A plat of the proposed development should be submitted to state regulatory authorities that will have access to the confidential maps and records of oil and gas development.

If the development is in an area in which oil and gas wells were drilled, the developer must obtain certified location maps of underground infrastructure before breaking ground.

The developer must also make contact with the well owners to obtain certificates stating that the development will not damage underground infrastructure.

It is a legal requirement that any excavation must first get a utility location certificate and surface markings of utilities. This must be expanded to include a requirement that the owners or operators of existing wells both locate the pipes and ensure, with state inspection and certification, that all dormant or abandoned pipes have been properly shut off, severed and sealed.

In addition, legislators should enact a law to require all excavators immediately stop work if they sever any type of underground pipeline. The law would require written certification, ensuring the pipe has been properly sealed off and is safe before excavation resumes.

This plan deals with the risks of development of old oil and gas fields without creating a public safety concern.

This column was originally published in the Colorado Springs Gazette

Quarry battle reveals residents’ hypocrisy

By: Scott Weiser

May 18, 2017 Updated: May 19, 2017 at 8:01 am

There’s a battle raging in Little Turkey Creek canyon southwest of Cheyenne Mountain. Transit Mix Concrete has a lease to quarry millions of tons of granite for construction aggregate over the next 30 years on property owned by the Colorado State Land Board, and the neighbors don’t want their peace, quiet, wildlife or water disturbed.

Let it be said that nobody really wants to live next to a quarry and living in the mountains is quintessentially about the natural environment that draws residents to the area. But that doesn’t mean they should be able to stop another property owner from developing their land as the law allows. Residents have the right to object, but that doesn’t mean that their objections are reasonable or that they can’t be held accountable for what they say.

The Colorado Division of Reclamation, Mining and Safety examined more than 60 issues raised by objectors to the quarry and issued recommendations that dismissed some of the concerns as unfounded. Transit Mix then cut the size of its proposal by more than half and addressed all of the valid issues brought up by the division. But the Colorado Mined Land Reclamation Board overruled the division’s recommendations and denied the permit, citing three concerns, legal access to Little Turkey Creek road, possible harm to nearby water wells from blasting and concerns about wild turkeys and the Mexican spotted owl.

In response, Transit Mix filed a case in El Paso County District Court and served some 90 people who testified in the proceedings with court papers making them parties to the suit. Lawyers for some of the residents claim that this is a SLAPP, or “strategic lawsuit to prevent public participation” intended to threaten and intimidate objectors by forcing them into court where they could potentially end up paying Transit Mix’s attorney’s fees. Transit Mix says that state law required it to make the objectors party to the suit, and on May 10 it asked the judge to drop the attorney’s fees part of their suit, taking that off the table.

Transit Mix alleges that the board relied on unfounded objections as justification for denying the permit, claiming it properly addressed the three concerns upon which the board denied the permit and that the board “abused its discretion and acted in a manner that was arbitrary, capricious, unsubstantiated by the substantial evidence and contrary to law.”

Minerals have to be mined where they are found, and Colorado law protects that specific right pretty carefully. State law strictly regulates development on land where construction aggregate resources are located precisely because it’s a limited but necessary resource that the state doesn’t want development to lock up forever.

Looking at some of the complaints, it’s certainly arguable that the board gave inordinate weight to the aesthetic concerns of nearby residents and the sheer volume of complaints because its reasons for denying the permit appear to be based on opinions, emotions and public pressure not facts. That’s what the district court will determine.

Concerns about wild turkeys and the Mexican spotted owl appear to be environmental-activist spaghetti thrown against the wall in hopes something would stick. But many of the people who are complaining live in the very habitat they want conserved, not that wild turkeys are in any danger of extinction and not that any Mexican spotted owls have ever been found on the quarry property, or anywhere else nearby. So who is actually responsible for loss of habitat, Transit Mix or current mountain subdivision residents?

Private property owners, including Transit Mix and residents in the area, are under no obligation to provide public wildlife habitat. If owners want to erect turkey-proof fences and put netting overhead to keep owls and wild turkeys out, there’s nothing anyone can do to prevent it.

If the residents of the area value turkey or owl habitat so much, perhaps they should move to the city and replace the quarry’s habitat with their own.

But it’s hypocritical to support taking someone else’s property rights while expecting not to be made party to a lawsuit to protect those rights. Free speech is free, but it can have consequences, and this is one such example.

This article was originally published in the Colorado Springs Gazette