Wednesday, December 8, 2010

Walking and chewing bubble gum

I thought it would be interesting and fun to share an example of an email exchange between a non-constituent and me about a story covering the legislature in the Denver Post.

Here's what Jon wrote:

Mr. Brophy and Mr. Vigil,


So let me get this straight, both of you intend to introduce competing bills on daylight savings time ( at a time when (1) the state is facing nearly a billon dollar budget shortfall; (2) the state constitution has been intentionally violated year after year by your underfunding K-12 education; (3) higher education is on the brink of total fiscal collapse; and, (4) the economy is in the worst shape since the great depression; etc. etc. etc.


And you two want to debate whether to change daylight savings time? Really?  Are you kidding me?


Tell me why this is acceptable to the two of you:  In 1989, when I graduated from Fort Lewis College, I and my classmates could work a summer job to pay for tuition--today it’s starting to look like it will be less expensive to send my 17 year old daughter to a college out of state than it will be to pay in-state tuition.  While you two wallow in frivolity, I’m wondering how the hell I’m going to pay for my kids’ college tuition that you two keep raising.


Why don’t you two spend your time and energy solving real problems?



Dolores, Colorado

And my response:

I'm perfectly capable of walking and chewing bubble gum at the same time.

I'm also introducing bills to:
1. Help the natural gas industry increase demand for their product
2. Give small rural schools a new tool to keep their doors open while recognizing that the number of students will likely keep declining.
3. Cut red tape at schools so kids can keep their life-saving medication with them instead of locked in a cabinet in the office
4.  On tort reform to classify mountain biking as intently dangerous, so that ski areas, for instance, won't be sued when someone crashes on the slopes - hopefully encouraging more tourism.

I'll be introducing a Constitutional amendment that will keep the legislature from increasing taxes by calling them "fees".

Finally, I'm reaching out to the new administration with examples of how the Ritter Administration harmed the oil and gas industry with over-burdensome regulations and how we can smartly improve what was done in a way that encourages economic activity while protecting the environment.

I'm continually surprised by what the media finds worthy of coverage.  I spend most of my time working on the nuts and bolts of reducing the scope of influence of government in our lives and making the government that we need effective, but I seem to draw the most amount of coverage  on relatively frivolous issues.


Sent from my iPad

Wednesday, October 13, 2010

2010 ballot questions

Cheat sheet

P: yes
Q: yes
R: yes
60: no
61: no
62: yes
63: yes
101: no
102: yes

Supreme Court
Bender – no
Martinez – no
Rice – no

Appellate Court
Daily – yes
Gabriel – no
Lichtenstein – no
Richman – no

County Court
Yuma Judge Sara Wagers-Johnson – yes, she’s awesome, we need more like her
Phillips Judge David Colver – yes
Kit Carson Judge Michael Grinnan – yes

13th Judicial District - vote to remove term limits on DA. I still support term limits on legislators and commissioners, but the requirements for DA make the field of qualified candidates pretty small; we should remove the term limits on this office.

The shortest reasoning I can give you on the ballot questions:

P - this moves the regulation of bingo and raffles to the Dept of Revenue from the Dept of State. It is a smart consolidation of similar functions into one department.

Q - sets up a way to move state government functions if a disaster emergencies is declared. Right now it would take a state-wide vote to authorize the meeting of e legislature at a lace other than Denver; this is smart, just in case.

R - does away with the assessment, collection and payment of possessory interest (property) taxes on low value properties. This is really smart because it often costs more to assess and collect this tax than the total tax bill.
60, 61, & 101 as a package really do go too far. I don't think their passage brings about the end of government, but things would be completely different at every level from the state right down to your local cemetery district and telephone cooperative. I am pretty sure that these three are headed to defeat, so I won't write too much about them right now.
I will make two important points. If you think that state government is too big and needs to shrink (as I do) guess what, we get to (or have to) do that anyway as the Democrats have handed us a near $1 billion gap to close in the next fiscal year. These three would add about $730 million to that gap. Also, I am positive that passage of 60 and 101 would end state subsidies for higher education; I’m not using a scare tactic, I’m just calling it like I see it. All of the out-state junior colleges, state colleges and community colleges would close.
If you have specific questions about these three, just flip me an email and I will try to respond.

62 - I encourage you to ignore most of the rhetoric related to this one. It is really a question of whether abortion should be banned in all cases except life of the mother. That is how this would play out if 62 actually passes. It would also ban the morning after pill, most likely, but only most likely. If you are Pro-Life without two of the big three exceptions, you should vote for this; if you aren't, then vote against it.
63 - this would protect your right to health care choice in the Constitution. I really wish that we didn't have to put stuff like this in the Constitution, but after the passage of Obamacare over the objection of a majority of Americans, it is obvious now that we have to pass this. It would keep the government from forcing you to buy health insurance.
102 - this one is more of a coin toss for me. It changes the statutes to keep some people accused of crimes from being referred to a pre-trial services program. I'm a yes because I'm not sure that these programs actually work like they are supposed to work and I'm concerned about some people skipping out if there isn't a bail bond held for their future presence. This is a classic example of what economists call "rent seeking" which is where a person or business tries to use the power of government to drive payments or business to them. That doesn't make the idea wrong, but you should know that the bail bond industry will to make more money if this passes and the pretrial service programs will make less.

Sunday, April 4, 2010

Tough Choices - HB1365

The Front Range of Colorado is faced with an unpleasant reality. The EPA is poised to implement clean air standards that have been building since the late 1990’s that will regulate nitrous oxide (NOx), ozone, mercury, sulfur dioxide (SOx) and regional haze (the brown cloud).

The standards go too far and should be fought with all of our might. It is time that Colorado and the other states stand up to the federal government and re-assert our authority over all of the issues that pertain to the state instead of the central government.

I think the people are ready for that too. More folks know what the 10th Amendment is all about now than at any time since the founding. It is time to push back against the heavy hand of DC.

It is a battle that needs to be fought, the question is: do we sacrifice Colorado businesses and citizen’s pocket books in that fight or do we take on Washington in a way that poses less financial risk to us? If the Feds implement their plan to clean up our air, look for car emissions standards like California, new formulations for our gasoline (like California has), restrictions on all power plants, tighter restrictions on local refineries, those funky gas nozzles like you see in California, and even no mowing your lawn during the day or barbequing. They have a whole laundry list of bad ideas to throw at us.

HB1365 is designed to hold off those federal requirements by crafting an alternative solution to meet the new air quality standards. It directs the Public Utilities Commission and the Colorado Department of Health to work together to devise a strategy to meet all of the standards in a few bold moves instead of waiting for each of the new standards to be introduced by the EPA. This is the first time both departments have been told to work together and been given the authority to do so.

It is likely that their plan will recommend the mothballing and/or conversion of three or four really old, 1950’s era, coal fired power plants to natural gas fired power plants. These facilities are located right on the Front Range. They’ll most likely recommend some additional cleaning technology on the newer coal facilities, like Pawnee at Brush.

All of this will cost Coloradoans some money, slightly higher utility bills, but probably lower if done as part of a global strategy than on a piece-meal approach as directed by the EPA. And don’t forget what all those other things on the list of “ideas” the EPA has would cost if implemented.

The bill also corrects a preference in the way the PUC views coal fired power plants over natural gas fired power plants. Currently, utilities can recover costs and earn a rate of return on the value of the coal fired plant which costs multiple times more to build than natural gas fired plants. Under the bill, utilities can make long term price contracts with natural gas providers and earn a rate of return on the value of those contracts.

With the new discoveries of gas in shale formations, natural gas companies are eager to agree to long term contracts and prices are low, so low that electricity produced from natural gas is now slightly cheaper than that produced from coal plants.

The benefits include a lot of drilling for natural gas, primarily on the Eastern Plains. The new demand will require 250 new wells a year over and above current production. Cleaner air is a benefit as natural gas burns much cleaner than the older coal fired plants do. Less train traffic and significant investment in the power plant at Brush are also good for Eastern Colorado.

You’ve probably heard a lot about this bill; the environmental groups like the bill for the air quality improvement and the natural gas companies like it because of the new business.

The coal producers hate it because it takes business away from them, the railroads for the same reason and the unions because coal workers are unionized and natural gas workers aren’t.

The total bill for fuel alone in one year for the 900 megawatts of electricity under scrutiny in the plan that will be crafted by this bill is $250,000,000. Now you know why you’ve heard so much about the bill; both sides are willing to spend quite a little money to influence the fuel choice when a quarter of a billion dollars a year is on the line.

I voted for it because no one has ever held off the EPA on clean air standards, there is a better way to meet those standards than letting the EPA devise the plan, and drilling for natural gas is good for Eastern Colorado.

I’d rather fight the Feds over health care and other issues.

Tuesday, March 23, 2010

Denver just like Washington DC

The striking similarities between the way Congress acts and the way the Colorado General Assembly acts some times shock and disappoint.

Take HB10-1001 which raises the renewable energy standard for the two power companies that serve the Front Range from 20% to 30% by the year 2020.

I still remember the summer of 2008 when gas hit $4.00, natural gas spiked, and everyone’s utility bills were outrageous. I’m afraid that those days may come back, so I support an “all of the above” energy strategy that promotes development of a wide variety of energy sources so we will never again be hostage to one source of energy.

1001 doesn’t do that. It carves out market share for chosen and favorite sources of electricity without allowing out of favor forms of energy a seat at the table. Special interests controlled the bill, just like they so often do in Washington DC. And, just like when the socialized health care bill passed, 1001 passed without one Republican vote.

Further, embedded in the bill, is another carve out for another special interest. Just like in WDC, the unions have favor with the majority party, so they get special consideration in the installation of solar panels in Colorado.

Read the law out loud, it’s embarrassing.


The performance of all work: in other words, you can’t even do it yourself anymore.

Maybe one of the most frustrating and entertaining parts to read is this:


Yes, the law controls approved to non-approved (cheaper) workers at the work site.

This bill was 1001, the number one bill of importance in the Colorado House and part of Governor Ritter’s agenda for the year. The agenda in Denver is no different than the agenda in Washington DC: special interest legislation to empower the party and the party’s friends.

Monday, March 1, 2010

Right to Float?

HB10-1188 takes on a complicated issue: is there a right to float down waterways in Colorado?

For years, the accepted answer was yes, as long as you don’t make contact with the bed or banks of the stream. This kept people off small rivers and streams, but allowed recreational activity on rivers like the Arkansas, Eagle, Colorado, Taylor and Yampa to name a few. I suppose that rafters technically break the law when they bounce off boulders in the middle of the stream, but I don’t know of any instances where someone was prosecuted for trespassing for that. I thought this was a settled question.

I was wrong.

There is now a landowner asserting that under a Colorado Supreme Court case called People v. Emmert, no one can float down a river through private property, where the same person or entity owns the land on both sides of the river, without permission. Emmert holds that not only does a landowner own the bed and banks of the river, but also controls the surface.

Emmert is in conflict with a statute passed as SB77-360 which established floating without touching the bed or banks. SB77-360 was carried by Senator Joe Kinnie and dealt with trespassing on the bed and banks but still allowed floating. Senator Kinnie said in committee: “This ... will not stop tubing, canoeing or boating on the water, but will give the property owners the help of law enforcement officials against a few people bent on causing trouble ....”

The problem is that Emmert was decided in 1979, two years after SB360 passed and the statute modified by SB360 was referenced in the opinion, so clever lawyers are arguing for this landowner that the landowner can stop passage down the river that is bounded by his property.

Enter Rep Kathleen Curry’s and Senator Mary Hodge’s HB10-1188 which would establish a “right of navigation” in Colorado, would allow incidental contact with the bed and banks of a stream and allow portage around a hazard or obstruction in the waterway.

A right of navigation is usually a dominant right, over and above other rights, like property rights. In other states, the right of navigation usually conveys ownership of the bed and banks of the waterway to the state. However, the latter is disallowed in this bill.

The new ability to touch the bed and banks and the portage are both substantial changes from the current status quo and, I think, infringements upon the rights of the property owners of said beds, banks and adjacent lands.

I am inclined to believe that on large rivers in Colorado, there exists a public right of way just like there is for roads that are bounded by private property. You can drive down a road, but you can’t stop and have a picnic on the adjacent privately owned land without permission. I think we should treat rivers in much the same way.

The big question that would need to be answered is: which rivers and streams does this “right of way” notion apply? The bill chooses to use streams commercially floated in 2008 and 2009. That’s probably too narrow, but a good starting point. It may be good enough to not name the rivers or establish in law which ones qualify. A law which doesn’t allow contact with the bed of the stream really settles that question. You can’t float it if you can’t float it (without touching that is).

Establishing this right to float would also establish that a landowner couldn’t block the waterway as that is specifically addressed in 18-9-107 where it is unlawful to block a road, street, waterway etc.

The challenge left is in making sure that fencing across a stream to keep livestock out doesn’t constitute blocking a waterway. That should be easy enough.

I will support 1188 if it re-establishes the status quo, but not if it does any more.

Thursday, February 25, 2010

Budget Balancing Bills

The Senate this week will pass 30 some bills to bring the budget into balance for the current fiscal year.

Most of the bills are just minor adjustments to each department of state government that reduces spending to reflect the money saved by furloughing state employees.

There are no bills that truly seek to reform government by controling the growth of spending on Medicaid or revamping our educational system into something that works better, smarter and faster.

Mostly business as usual and a continued lack of leadership during these tough times by the Governor and the majority party.

There are a couple of bills that are really offensive: one that transfers $87 million in cash funds to the general fund – a common occurrence during tough economic times and one that establishes a new bed tax on nursing homes to raise money that will be used to seek a match of federal funds for those same nursing homes.

The cash fund raid takes money from a dozen other areas of state government, most of the $87 million comes from severance taxes on oil, gas and coal. The same industries demonized by many of the Democrats voting to raid the funds. How ironic.

The nursing home bed tax will be used to offset a cut in funding to the same nursing homes. The money raised from the bed tax will be sent right back to the nursing homes so that the state will qualify for a federal match in funding for those nursing homes. Man, that’s creative!

I’ll end up voting for the bills that really reduce spending even though I am disappointed that no real creative thinking is going into solving the budget problem by reforming government in a way that permanently reduces spending.

I will vote against the cash fund raids and nursing home bed tax.

Tuesday, February 23, 2010

common sense water legislation?

The Senate passed SB 165 35-0 this week. Don’t let anyone tell you that Democrats and Republicans can’t work together to solve problems.

SB 165 is a bill that deals with the water that comes up with natural gas in natural gas wells. The water is called produced water and except for produced water from a separate kind of natural gas wells, coal bed methane wells, this produced water will not be regulated by the state in most cases.

Here’s what happened: some senior water rights holders filed a suit against gas producers from coal bed methane (CBM) wells saying that the water that was pumped up with the natural gas was tributary to a river and since that water was taken out of the ground and moved somewhere else, it didn’t seep out into the river and the senior water rights holders didn’t get as much water as they would have so they were “injured”. The Supreme Court agreed with the water rights holders and the gas companies were told they had to be regulated and would have to replace the water they took. This decision threw every natural gas well that pumps up water into jeopardy. Would all gas wells have to replace that produced water? There are tens of thousands of them and if so, it was going to be very expensive.

Everyone went to work to prove that all or almost all of the non-CBM wells were non-tributary, meaning that the water that was pumped up with the gas would never enter into our river or surface water network. Almost all of the water used for agriculture and drinking comes from this surface water network, rivers and shallow wells, so protecting it is a big deal.

After spending millions on engineers, the state and the gas companies agreed that the water that is with the gas is non-tributary in almost all cases.

As a side note, you should know that water lawyers who make their living suing people for injuring senior water rights holders hate this decision. They might have completely pure motives and think that the water that is 2000-10,000 feet deep is part of the surface water system or they might just want to retain the ability to make a boat load of money suing natural gas corporations. Could go either way.

Then the state, which means Governor Ritter’s Department of Natural Resources, did something really unusual. They decided to reward natural gas companies who use this produced water to offset the use of other surface water.

That’s right; Governor Ritter actually did something good for the oil and gas industry.

Some of the natural gas companies effectively recycle this produced water and offset the need for water from another source, mainly surface water. Doing this reduces the amount of water they would use from the river systems, it reduces truck traffic that would be needed to haul the water and it’s responsible. Now the state is actually rewarding companies for doing this.

The only case in which this produced water will be regulated by the state is when the water is used for some other purpose; in that case, the use will be treated just like every other instance where non-tributary water is put to beneficial use.

I worked a lot behind the scenes on this issue. It is really nice to see everyone’s efforts rewarded with common sense legislation.