Hickenlooper, Coffman at odds on oil, gas appeal

An appeal over a controversial oil and gas decision will go forward despite Gov. John Hickenlooper’s opposition to doing so, after Attorney General Cynthia Coffman decided he can’t override the decision of the Colorado Oil and Gas Conservation Commission.

Hickenlooper revealed his position on the issue in a statement this morning, while Coffman filed the appeal by today’s deadline for doing so and her office released a letter she sent to Hickenlooper explaining the reasons for her decision.

Coffman is asking the Colorado Supreme Court to reconsider a 2-1 decision by the Colorado Court of Appeals concluding that the oil and gas commission must protect public health, safety and welfare as a precondition of allowing oil and gas development. The commission long has interpreted state law as requiring a balance between protection of the public and accommodation of oil and gas development.

The ruling came in a case in which six youths have asked the commission to suspend oil and gas development until it can be shown that the activity wouldn’t harm the public or environment of contribute to climate change. The appeals court didn’t require the commission to take that action, but only ordered that it reconsider the youth’s request for a rulemaking consistent with the court’s finding that the commission had previously denied it based on an incorrect interpretation of state law.

The commission unanimously voted to appeal the ruling to get clarity from the high court, but Hickenlooper came under heavy pressure from some residents, environmentalists and local and state political officeholders not to pursue the appeal. They said the importance of protecting public safety was underscored by the explosion in a home in Firestone last month that killed two men and investigators determined was caused by gas that entered the home from a pipeline from a nearby oil and gas well.

Hickenlooper’s office said in today’s statement, “While we understand and respect the commission’s desire for further clarity from the Supreme Court, we believe the court of appeals’ decision does not represent a significant departure from the commission’s current approach. The commission already elevates public health and environmental concerns when considering regulating oil and gas operations.”

But in the filing asking the Supreme Court to consider the case, Coffman’s office wrote that the appeals court found that the state’s Oil and Gas Conservation Act, “rather than balancing competing public policies … prioritizes one policy at the expense of others.”

“Under this view, the Commission is permitted to disregard the Act’s directive to foster responsible oil and gas development and enact rules that would entirely prohibit oil and gas-related activity unless it can occur with zero direct or cumulative environmental impact,” the filing said.

The filing said that the appeals court ruling “creates serious uncertainty in Colorado oil and gas law.”

The Attorney General’s Office provides legal representation to the oil and gas commission. Hickenlooper asked the office Wednesday not to proceed with the appeal.

“Your request conflicts with an official decision of the Commission, which you do not have authority to countermand,” Coffman wrote to Hickenlooper.

She said the commission is an independent body, and while state law gives Hickenlooper authority to appoint and remove commissioners, “it does not permit you to disregard the independent judgment of the Commission and direct its decision-making.”

She added, “As a separate matter, the … appeal raises issues of great significance to the State, and I have determined independently that the Colorado Supreme Court is the
proper body to resolve them.”

She wrote that the plaintiffs in the case have “called into question an interpretation of the law that has governed the Commission’s functions for nearly 25 years.”

Hickenlooper’s office said in its statement, “We believe that the statute governing the commission’s powers does not include the authority to initiate an appeal in this case. However, the Attorney General reached a different legal conclusion.”

Hickenlooper spokesperson Jacque Montgomery said there is a difference in opinion between Hickenlooper and Coffman on who has authority in the matter at hand.

“But we’re not going to challenge her decision,” she said.


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