Voter Initiatives to Limit Mineral Development in Western States Fail

Voters in several western states on November 6th defeated citizen-initiated ballot initiatives that would have heavily regulated mineral and energy development.  The highest profile failed initiative was Colorado’s Proposition 112, which would have prohibited new oil and gas drilling within 2500 feet of any structure in the state, or within the same distance of broadly-defined “vulnerable areas” such as intermittent or perennial streams or public open space.  The net result of Proposition 112 would have been an effective ban on oil and gas drilling on almost all non-federal lands in Colorado, particularly in the prolific Denver-Julesberg basin, where conflicts between drilling and rapid suburban growth have been increasing.  Opposition to Proposition 112 was, not surprisingly, heavily funded by Colorado’s energy industry, which claimed the initiative would have devastating impacts on industry jobs and state tax revenues.  Proposition 112 failed by a 56%-44% margin.  Interestingly, Colorado voters at the same time rejected a countervailing initiative, Proposition 74, that would have compensated property owners for reduction in property values caused by regulatory initiatives such as Proposition 112.

A Montana initiative to limit hardrock mining, I-186, also failed by a 56%-44% margin, with a small percentage of ballots yet to be counted.  I-186 would have required the Montana Department of Environmental Quality to deny a permit for any new hardrock mine in Montana unless the mine proponent could prove by clear and convincing evidence that the mine would not require perpetual treatment for water containing acid mine drainage or any other contaminant.  The initiative did not define many terms, such as “contaminant”, leading opponents to claim that the uncertainty imposed by the initiative would invite litigation, and deter future investment in Montana’s mining industry, which is already subject to stricter water quality regulation than in many other western states.

Alaska voters soundly rejected Ballot Measure 1, commonly known as the Stand for Salmon initiative, by a 61%-35% margin.  The measure would have imposed rigorous new limits on the environmental permitting process for proposed mines, dams and oil & gas development in salmon habitat.  This process included requiring the State Division of Fish and Game to regulate disturbance of anadromous fish habitat, including inland watershed areas, through exhaustive regulatory analysis of potential adverse effects, while eliminating the possibility of compensatory mitigation for proposed disturbance of such habitat.  Earlier in 2018, the Alaska Supreme Court had struck down even stronger language unconditionally banning issuance of a permit when significant adverse effect to salmon habitat was present, but opponents – including Native corporations, industry and state government – argued that the economic damage caused by increasing the difficulty of permitting economic development would outweigh any benefit to salmon from the revised initiative.

All three of the failed ballot measures were well-funded by local and national environmental and outdoor industry groups, and were proposed in states well known for strong public participation in outdoor recreation.  Even so, it appears that voters are aware of the economic and employment benefits of mineral and energy development, and unwilling to handicap industry through the initiative process.