Legal briefs from both Extraction Oil and Gas and the City and County of Broomfield (CCOB) are due on Friday, April 3 regarding CCOB Board of Health’s proposed order to protect the health of Broomfield residents living near the Livingston Pad by suspending flowback during the COVID-19 stay at home period ordered by the governor. On March 27, Extraction obtained a Temporary Restraining Order (TRO) from 17th District Court Judge Robert w. Kiesnowski, Jr. that prohibits Broomfield through April 10 from “issuing any order directing Extraction to halt or suspend operations due to COVID-19 or other health-related concerns as developed at the Broomfield Board of Health, March 25, 2020, special meeting.”
One legal brief due on April 3 from both Extraction and CCOB will cover if the Board of Health’s proposed order is preempted by the State of Colorado’s designation of oil and gas development as an essential business. In CCOB’s Motion for Reconsideration of the TRO, CCOB attorneys cited the Governor’s Executive Order which states, “Nothing in this Executive Order prevents a local public health authority from issuing an order more protective of public than this Executive Order.” This CCOB legal motion also states, “The Operator Agreement cannot, as a matter of law, strip the Broomfield Board of Health from exercising its police powers to issue public health orders necessary to protect public health, safety, and welfare during this COVID-19 disaster emergency.”
Another legal brief due on April 3 will address if the matter is ripe. In CCOB’s Motion for Reconsideration of the TRO, it states that, “Although the Board met and heard testimony on March 25, 2020, the Board did not issue an order at the conclusion of that meeting, but rather decided to reconvene on March 31, 2020.”
The court will issue its decision on both the preemption and ripeness matters on Monday, April 6 at 4 pm. If the court decides that the TRO is valid, the trial will begin on Tuesday, April 7 at 9 am and is expected to last for one to two days. There would be restrictions in the courtroom for social distancing and it is unknown if there will be a dial-in number for the public. The next Council meeting is scheduled for Tuesday, April 7.
In the meantime, Extraction is quickly completing preparations to begin flowback, with current estimates from CCOB Staff that flowback could begin as early as April 11. Production tubing is in all 18 wells, flowline work and tie-ins are about sixty-percent complete, and most of the production facility is in place. Extraction had previously told CCOB that flowback will start around mid-April but would not commit to a date when asked by the judge on Tuesday, March 31. Extraction also just announced reductions to its 2020 upstream capital budget by 42% to $250-300 million “in response to recent commodity price weakness.”
On Tuesday, March 31, the CCOB Board of Health began by meeting virtually in Executive Session for two hours. That was followed by a one-hour public discussion, which began with CCOB Public Health Director Jason Vahling stating that Public Health had concluded that individuals experiencing anxiety and stress are at greater risk of complications to COVID-19 and that oil and gas development, including flowback, was creating stress and anxiety in Broomfield. He pointed to a large body of peer-reviewed literature to back that up, along with Broomfield’s own health complaint data.
During discussion by the Board of Health Commissioners, Commissioner Groom asked questions of CCOB engineering consultant Barbara Ganong about the safety of pausing operations right before flowback. Ms. Ganong responded that the operator would lose resources if operations were paused before flowback for a period of several months. The proposed order is only written to be effect while the governor’s stay at home order is in effect to April 11, unless it is extended by Council.
Commissioner Henkel stated that she appreciated the efforts of Staff to present the data that supports the order. She referred to the extensive effort that Broomfield has had to expend in gaining Extraction’s cooperation to mitigate health impacts from drilling mud, Tier 4 engines and noise. Commissioner Lim stated that the number of health complaints filed related to anxiety grossly underestimated the actual negative impact on the community because residents were tired of filing them out since July, and some residents have not previously known to mark anxiety as a health complaint. She asked Attorney Sullivan to add points in the “Necessity of the Order” section about residents being forced to evacuate due to a flowback incident while sheltering in place for COVID-19 and flowback placing more demands on an already under-resourced medical system. Commissioner Shaff asked questions about what complications might occur during flowback and if Broomfield’s monitoring of Extraction’s operations have ever prevented issues from occurring. Staff could only immediately point to dust mitigation in response. Commissioner Anderson referred to a recent Southwest Pennsylvania health registry where data also showed that anxiety was the top-reported concern for those living nearby oil and gas development.
Mayor Quinn directed Staff to seek answers for some outstanding Council questions and to address the additions that Commissioner Lim suggested to the order. He stated that the Board of Health was prohibited on acting on the order immediately due to the TRO and would await the outcome of the court decisions on April 6 and April 7.