Planners attempt to imitate reality through regulatory law. You could call it modelling reality.
Private sector businesses make all sorts of models for controlling their businesses. These models accept data, they associate data elements through defined relationships, they produce performance metrics for their businesses, and they attempt to predict, at least for the near term, future business requirements for the firms.
Public sector modelling in regulatory law aspires to reach the standards of modelling success seen in the private sector. But regulators aren’t private sector operators. They don’t run the businesses that their regulatory models attempt to control. They don’t have a survival motivation to make a correct model.
When the private sector does something wrong, that is, when their model of reality does not correctly capture and predict reality, they go out of business. For private sector firms who fail to profitably, economically, environmentally, socially, politically, and every other performance metric you can imagine, adapt their operations to reality, reality marches on without them.
When a public regulator gets it wrong, that is, when their model does not fit the segment of reality it’s supposed to control, the regulations still have the force of law. Law marches on regardless, and the private sector operation that must profitably exist under that law withers away because it must conform to law, or face government sanctions and penalties. It’s a lose/lose situation for those firms.
That’s the essence of the American system. Let’s consider the modelling environment for Elbert County’s nascent Oil and Gas industry – hang some meat on those bones.
Who are the interests and what is the source of each of their powers?
- Federal Government, the primary mineral rights title holder on all land in America, enforces regulatory compliance through the EPA, OSHA, and hundreds of other regulatory agencies, with disputes resolved through the courts.
- State of Colorado, enforces regulatory compliance through the COGCC, the State Engineer for water issues, and “numberous” (hat tip to New-Plains.com) state statutes enacted by the legislature, with disputes resolved through the courts.
- Elbert County zoning law governing land use pursuant to state statute. Over the last decade this body of regulatory law greatly expanded due to the efforts of county planning employees and planning commission appointed members, in order to remove as much discretion as possible from the elected Board of County Commissioners, who planners politically opposed. Disputes may be resolved by the BOCC in some cases, or through the courts.
- Landowners who have mineral rights that attach to their surface land area. They can exploit the minerals themselves, or transfer that right to other parties. The right to extract minerals may be leased or sold to producers. Sources of authority are court enforcements of agreed contractual performances and property titles.
- Producers who have purchased mineral extraction rights from landowners have the right to disturb the surface landholder interests in order to extract their purchased minerals. Titles to surface land and sub-surface minerals can be sold to different parties. For example, a subdivision developer generally retains subsurface mineral and water rights while selling only surface land parcels to home builders. Minerals and water in the ground may be subsequently sold for extraction to third parties, and those third parties have a superior right to penetrate the surface land, with compensation to the surface landholder, and even if it means disrupting the surface landholder, to recover their property. Civil courts adjudicate disputes over contractual promises and performances.
These interests fall into 3 types – regulatory, entitlement, and business. The business interest is for profit, because without profit it ceases to exist.
Yikes, this is all still preamble. Let me get to the point.
Let’s briefly recap the regulatory models contemplated in the nascent Elbert County Oil and Gas industry.
- Federal regulations such as EPA, OSHA, etc.
- Colorado state regulations from the COGCC, the State Engineer water rights administration, C.R.S., etc.
- County zoning regulations consisting of a multi-tiered structure for “minor” and “major” operations, with a contractual component called an MOU, memorandum of understanding, and other land use regulatory requirements for road use, weed control, blowing dust mitigation, fire and emergency response, animal migration routes and habitat preservation, topography restoration, etc.
Before Elbert County will allow the speculative business models of oil and gas producers to begin to risk their capital for an uncertain profit, a tortuous path of regulatory models must be satisfied.
Taking just one regulatory model – the COGCC – operators have hundreds of pages of highly detailed regulations including operation standards publication, enforcement protocols, dispute resolution schemes, rules development, etc. This is a mature regulatory process and it’s still in flux. It hasn’t reached a point of long term stability. Rules change constantly, and many of them not insignificantly.
Along comes the new kid on the block, Elbert County and its multi-tiered regulatory scheme with discretionary process fall-out points, discretionary re-directs into different regulatory sections, and ample opportunity for random 3rd parties to co-opt the process to make political theater around “major” facilities.
Why would a planning department consisting of a mere handful of people need such a complex regulatory scheme? Ockham’s Razor would go dull from all of the cutting Elbert County zoning regulations could sustain and still get the job done, especially in this case as an adjunct to the COGCC regulations.
When you consider that county planning interests have been averse to the oil and gas industry coming into Elbert County all along, and have, as a result, persisted in writing a labyrinthine, corruptible, and flexibly delayable scheme, this current zoning work product may accomplish their deeper prejudice after all if no production occurs.
Planners and regulators at multiple government levels have built us a house of models that are all supposed to happily coordinate with each other to control this very complex and speculative industry for our health, safety, and general welfare. The chances that reality could ever conform to multiple coincident regulatory regimes such as those facing Oil and Gas production in Elbert County are essentially zero. I think the planners bit off more than they can chew. I think reality has many lessons to teach these folks.
The parallels to the basket of intentions that gave rise to Obamacare, and its subsequent failure, make the same point.
Cause and effect – the drivers of reality – don’t respect models. Planners never seem to appreciate this fact. They just keep writing tortuous models that do nothing to enhance our health, safety and welfare. They have no respect for what it really takes to produce a tangible, profitable, and safe outcome.
We have an unlimited ability to dictate reality and the Left, in particular, live to exercise that power. But they never produce the outcomes they intend.
For a county looking to change its destiny and benefit from the growth of a new industry, regulatory planning is perhaps the surest way to prevent that from happening. If you can get the industry started before the planners and their political constituencies gain traction, the industry might be able to survive the planning process.
I’m afraid we’re past that point in Elbert County.
B_Imperial