Colorado Attorney General Cynthia Coffman bucked the apparent wishes of Gov. John Hickenlooper by appealing a court ruling that could dramatically change the way Colorado regulates the state’s oil and gas industry.
Hickenlooper isn’t challenging her decision.
The ruling in the case of Martinez v. Colorado Oil and Gas Conservation Commission pivots on whether Colorado should put public health first when considering oil and gas development rather than trying to strike a balance between oil and gas interests and public health, safety and welfare.
In a last-minute appeal filed Thursday to the Colorado Supreme Court, Coffman’s office asserted the COGCC, which regulates the industry, has an original mission of “fostering oil and gas development.” The commission has interpreted state laws governing it in a way that does not permit “one policy concern to override all others,” the AG’s office wrote.
In fact, Coffman’s office argued, “because these statutes do not use the word ‘balance’ to modify those particular policy considerations, they foreclose a regulatory approach that balances competing interests, and they must be read to mandate pursuing one set of policies at the expense of others.”
The appeal cites case law that “never suggested that policies favoring public health and the environment are a ‘mandatory condition’.”
Hickenlooper, a former oil and gas geologist who long has been a booster of the industry, said in a statement Thursday that he did not believe an appeal was necessary. The state’s oil and gas commission “already elevates public health and environmental concerns when considering regulating oil and gas operations,” he said.
“We notified the attorney general that we did not want to pursue an appeal,” Hickenlooper said, adding his office believes state laws governing the commission’s powers do not include the authority to initiate such an appeal.
“However,” he said, “the attorney general reached a different legal conclusion.”
Coffman’s decision to appeal comes in the aftermath of a deadly home explosion April 17 in Firestone caused by a leaky Anadarko Petroleum gas flowline that had not been property abandoned. Unrefined gas from the severed line seeped into the basement of the home of Mark and Erin Martinez. Mark and his brother-in-law Joey Irwin, were killed while working on a water heater in the basement when the gas ignited. Erin Martinez remains hospitalized. (They are not related to the Martinez court case.)
At the May 1, COGCC meeting — the same meeting at which the board voted unanimously to appeal the Martinez case— furious residents lit into commissioners, demanding that they do more to protect public health. Hickenlooper’s own COGCC appointees, which include two agency heads who report to him, supported appealing the decision.
Democratic State Sen. Matt Jones of Louisville, who is the Senate minority’s most ardent voice on oil and gas issues, said, “The tragedy in Firestone has changed nothing as far as the attorney general is concerned.”
Coffman, who has accepted tens of thousands in campaign contributions from oil-and-gas interests, acknowledged the uncomfortable timing of the appeal and said it should not be read as a message about the way Colorado regulates oil and gas production.
“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,” she said in a statement. “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.”
The decision has left some in the environmental community wondering how hard Hickenlooper pushed back against Coffman’s decision to pursue the appeal.
“The buck stops with Governor Hickenlooper because he can still keep this case from moving forward,” said Mike Freeman, staff attorney at Earthjustice. “The Attorney General can’t bring a Supreme Court appeal on behalf of the COGCC without that agency’s consent. If the Governor is serious about protection of public health, safety, and the environment, he needs to direct his COGCC to immediately drop the agency’s challenge to the Martinez decision.”
Hickenlooper’s spokeswoman, Jacque Montgomery, told The Colorado Independent: “There’s just a difference of opinion on who has the authority to appeal. We’re not going to challenge her decision.” She said the governor learned about Coffman’s decision to appeal Thursday, May 18.
Whether Colorado would let the Appeals Court ruling stand or ask the state’s highest court to weigh in has electrified members of the public. Earlier this week, dozens of public officials signed a letter to the governor urging him not to appeal the lower court ruling.
It’s “pretty interesting that the AG can come in and represent the COGCC against the governor’s wishes,” said Democratic Rep. Mike Foote of Lafayette. “She’s doing the oil and gas industry’s dirty work. … The governor is wise not to be on the wrong side of public health and safety.”
Tracee Bentley, a spokeswoman for the Colorado Petroleum Council, said the state’s natural gas and oil industry “remains committed to working with all stakeholders” so the industry can deliver “the energy that runs Colorado, and our country, with the highest standards and practices of safety possible.”
The Colorado Oil and Gas Association noted the COGCC is a bipartisan panel that voted unanimously to seek review of the Appeals Court decision and stated the association is thankful Coffman took “the appropriate course of action.”
The Martinez case in question stems from a 2013 lawsuit brought by 16-year-old Boulder hip-hop artist Xiuhtezcatl (pronounced “shoe-tez-caht”) Martinez and a handful of other young environmentalists, aided by attorneys for anti-fracking and environmental groups.
They had petitioned the COGCC to withhold new permits for drilling in Colorado, “unless the best available science demonstrates, and an independent third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.”
The COGCC is made up of nine board members—there are currently two vacancies— who are appointed by the governor. Two of the commissioners are Hickenlooper-appointed department heads. The commission was created by lawmakers in 1951 to regulate Colorado’s growing oil and gas industry. The agency’s mission and values statement describes a balancing of public health, economic, and oil and gas industry interests. “We are as committed to protecting public health and the environment as we are to fostering the responsible development of Colorado’s oil and gas resources,” the statement reads in part.
The commission, however, balked at the teenagers’ petition, so the youth took their case to court. Denver’s District Court sided with the COGCC’s interpretation of its mission, and the teenagers appealed again — this time to a state Court of Appeals. In late March, the Appeals Court, ruling 3-2, overturned the lower court’s decision.
Justices for the Court of Appeals looked at how lawmakers have amended the state’s Oil and Gas Conservation Act over the years and found the amendments “reflect the General Assembly’s general movement away from unfettered oil and gas production and incorporation of public health, safety, and welfare as a check on that development.”
A spokesperson from the Colorado Petroleum Council, which is part of the national American Petroleum Institute that represents the oil and gas industry, has said the appeals court ruling could “threaten the state’s economy, property rights, jobs, and state revenue.”
In its appeal, Coffman’s office wrote that those who brought the case “urged the Commission to adopt a rule that would halt all oil and gas production in Colorado.” It said the Court of Appeals took a “novel interpretation” of laws governing the commission and its decision “creates serious uncertainty in Colorado oil and gas law.”
The state Supreme Court, Coffman’s office argued, should take up the case to ensure that the COGCC, “as well as the public and regulated parties,” understands what the laws governing it mean and how they should be interpreted.
Coffman’s appeal pointed to a recent state Supreme Court decision that overturned fracking bans in the cities of Longmont and Fort Collins. “Fracking opponents allege that the practice poses ‘health risks and [causes] damage to the environment,’” Coffman wrote. “Despite those concerns, the Court invalidated the local bans, observing that ‘banning fracking would result in less than optimal recovery and a corresponding waste of oil and gas,’ contrary to ‘the state’s interest in the efficient and fair development of oil and gas resources in the state,” which laws governing the COGCC embody.
The attorney general also argued the Appeals Court re-wrote the law governing the COGCC in its ruling by transposing a specific phrase that would make the law mean something else, so the High Court should clear that up.
Democratic candidates for governor have weighed in about what they would have done if they were in Hickenlooper’s shoes, when asked by The Colorado Independent.
Only former State Treasurer Cary Kennedy said explicitly that she would not appeal. “Public health and safety must be our top priority,” she added. Former Sen. Mike Johnston indicated he agrees with the Appeals Court ruling. “I don’t see why anyone would fight the state’s commitment to ensure that public safety,” he said. Congressman Ed Perlmutter didn’t say whether he would appeal or not, and in a statement said: “It is important that the priority of the state is the environment and health of the people.” Likewise, businessman Noel Ginsburg did not speak to an appeal, but said regulations should be “clear.”
This is a developing story and has been updated throughout the day.
Reporters Marianne Goodland and Kelsey Ray contributed to this story. Photo courtesy of Colorado Attorney General’s office.