Governor, Coffman at odds on oil, gas appeal

Cynthia Coffman

Gov. John Hickenlooper

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

Hickenlooper revealed his position on the issue in a statement Thursday morning, while Coffman filed the appeal by Thursday’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 sued in connection with their request that the commission suspend oil and gas development until it can be shown that the activity wouldn’t harm the public or environment or contribute to climate change. The appeals court didn’t require the commission to take that action, but only ordered that it reconsider the youths’ request for a rulemaking because it had denied the request based on the incorrect interpretation of its mandate under 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 that investigators determined was caused by gas that entered the home from a severed pipeline from a nearby oil and gas well.

Hickenlooper’s office said in Thursday’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 then 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 spokeswoman 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.

The environmental groups Conservation Colorado and Earthjustice on Thursday urged Hickenlooper to direct the oil and gas commission to drop its appeal.

“Coloradans would be shocked to know that their elected officials are actually debating whether or not to prioritize health, safety, and the environment when it comes to oil and gas drilling,” Pete Maysmith, executive director of Conservation Colorado, said in a news release.

Coffman said in a news release, “I understand that sentiment runs high surrounding oil and gas development in our state, even more so in the wake of the tragic house explosion that claimed two lives. This appeal is not intended to be a statement on complex energy policy issues. Rather it is a legal challenge to a court decision that stands to have a profound effect on regulation and administrative decision-making by government entities.”

Vital for Colorado, a business-oriented coalition supporting energy development, praised Coffman’s action in a news release Thursday.

“The attorney general showed real leadership today and the business community is thankful for it,” Vital for Colorado chairman Peter Moore said. “The activist groups behind this lawsuit want to ban one of Colorado’s most important economic sectors, not change the way it’s regulated. They have said it themselves.”

Vital for Colorado was one of several business-oriented entities, the Grand Junction Area Chamber of Commerce being another, that had written Hickenlooper on Wednesday urging him to appeal the ruling.

The Colorado Oil and Gas Association said in a statement, “Those who filed this lawsuit have said they want to ban oil and gas in our state. That irresponsible position, funded by the same out-of-state groups that have relentlessly tried to ban our industry via the ballot box, must be met head on.”

Seventeen-year-old Xiuhtezcatl Martinez, the lead plaintiff in the lawsuit, said in a prepared statement, “Even our Governor who has been one of fracking’s biggest cheerleaders opposes this appeal. Maybe he can now see that fracking is increasingly deadly, and that the state is not doing enough to protect its citizens. So why does the COGCC continue to resist efforts to protect public health? What we need now is for the people, businesses and leaders of Colorado to stand with us and Governor Hickenlooper in opposing this appeal.”

This isn’t the first time Hickenlooper and Coffman have disagreed legally about oil and gas issues. Without Hickenlooper’s support, Coffman decided to have Colorado join other states in a lawsuit challenging new Bureau of Land Management rules regarding hydraulic fracturing.

Coffman is a Republican, while Hickenlooper is a Democrat who once worked as a geologist in the oil and gas industry. He has generally supported the industry while pushing through several rules aimed at providing for safe and responsible development.


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