A constitutional crisis.
The phrase kept popping up Thursday when Attorney General Cynthia Coffman seemed to have bucked Gov. John Hickenlooper’s wishes by appealing a court ruling requiring the state to prioritize public health and safety concerns over its policy of fostering oil and gas development. Hickenlooper’s office announced, to much praise, that he objected to appealing the anti-industry legal decision.
But what the announcement didn’t say was that the governor won’t be challenging the appeal – despite his assertion that the decision on whether to file it was his.
“The attorney general and I have had disagreements on this before. This isn’t the first time,” Hickenlooper said Friday.
For all the speculation about a possible breach of constitutional separation of powers, the governor seemed notably unconcerned that his authority had been usurped on a landmark regulatory ruling.
He waited until 11:30 Thursday morning to publicly weigh in with a statement saying he opposed an appeal.
But it was too late to matter. Coffman already had filed it earlier that morning.
Questions since have been mounting about how wholeheartedly Hickenlooper objected to the appeal and how hard he tried to stop it.
“I don’t know if Coffman was providing Hickenlooper cover on this or what. But when you look at his background doing everything he can to support the oil and gas industry, it makes one wonder how sincere he was in his opposition to that appeal,” says state Rep. Joe Salazar, a Democrat from Thornton who’s running for attorney general.
Thursday marked the deadline for the state to challenge a ruling in Martinez v. The Colorado Oil and Gas Conservation Commission. A group of teen activists, including 17-year-old hip-hop artist Xiuhtezcatl Martinez, sued COGCC – the state agency responsible for regulating the industry – after it refused their demand that it stop issuing new drilling permits unless “the best available science demonstrates and an independent third party organization confirm 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.”
On March 23, the Colorado Court of Appeals reversed a district court decision that had favored COGCC and the industry. The appellate decision reinterpreted the agency’s mission to require that it base its regulatory decisions more on health and safety concerns than on oil and gas boosterism. COGCC long has struggled to balance its growing mandate to protect Coloradans from the effects of fossil fuel production with its original, 1950’s-era mandate to “foster” the interests of oil and gas production.
The industry has become a party in the suit and filed its own appeal of the decision it says could make it infeasible to do business in Colorado. Oil and gas companies have threatened to pull out of the state for several decades as environmentalists and residents have amplified their call for tighter regulations. In the meantime, the industry’s presence here has grown exponentially.
Conservation groups had been pressing Hickenlooper’s administration since April to let the Martinez decision stand. But by several accounts, including the governor’s, he was slow to weigh in on the issue.
“I can truthfully say we were re-evaluating [late]. [It’s] not like we made decision and sat on it for a while,” Hickenlooper said Friday.
Things got prickly on May 1, two weeks after the April 17 deadly explosion of a home in Firestone, which was caused by an unregulated Anadarko Petroleum line. That’s when the Hickenlooper-appointed COGCC board voted unanimously to appeal the Martinez ruling to the Colorado Supreme Court. Conservation groups were particularly galled that two of Hickenlooper’s agency chiefs who serve as voting members of the commission’s board – Bob Randall, executive director of the Department of Natural Resources, and Larry Wolk, executive director and chief medical officer of the Colorado Department of Public Health and Environment – cast votes to appeal.
Conservationists say administration officials seemed surprised by their displeasure. Even those outside the environmental community took notice that the COGCC’s vote made Hickenlooper look particularly tone-deaf at a time when the state is still reeling from the blast in Firestone that killed two men and gravely injured one woman.
In the past week, 13 state lawmakers, 39 local government officials and 1,539 Coloradans signed a letter asking Hickenlooper to let the Martinez decision stand. They hoped that he and the COGCC would let Thursday’s appeal deadline come and go without challenging the ruling.
In many ways, the administration’s response was classic Hickenlooper.
Colorado’s second-term governor is a savvy marketer with a flare for political messaging and a keen read on shifts in public opinion. He’s also a former oil and gas geologist who has championed the industry so ardently that he once drank fracking fluid in a U.S. Senate committee hearing. And he’s a pleaser, a conciliator with a long history of avoiding strong stands on controversial issues. He has a habit of distancing himself from his own agencies. His hands-off management style wins him praise as a leader who empowers his appointees, but also criticism as a politician who dodges responsibility.
In terms of optics, spinmeisters rate Hickenlooper’s handling of the sticky Martinez issue with an A+.
“Nobody, and I mean nobody could wiggle his way between this particular rock and hard place better than Hick,” said one public relations consultant who has worked with the governor, although not on this issue.
“John knows how to turn lemons into lemonade… (and) how to make people feel great about drinking it,” added a former Hickenlooper staffer.
Yet political messaging isn’t the measure by which everyone judges the governor’s handling of a court ruling that has broad implications for how Colorado regulates an industry whose infrastructure is weaving ever more tightly into Front Range communities, as the Firestone tragedy illustrated all too painfully.
Sara Loflin, executive director of the League of Oil and Gas Impacted Coloradans, represents 10 community groups from Battlement Mesa to Windsor that express concerns of “literally thousands of people … looking for leadership, for assurances that their health and safety comes first when it comes to oil and gas development.” Loflin credits Hickenlooper for making “some interesting first steps” since the Firestone blast by ordering inspections of all oil and gas lines within 1,000 of an occupied building and promising that “never again” will such an explosion rock a community in this state.
“But if his sentiments are sincere, if those are sincere sentiments, I’d ask why isn’t he pushing harder to drop the suit,” Loflin said. “I know COGCC is supposed to be an autonomous agency, but it’s an agency that he appoints every last commissioner to, including voting members of his own administration. The entirety of that commission and staff serve at his pleasure.”
Hickenlooper’s office has taken the position that the COGCC’s May 1 vote to appeal Martinez was merely advisory and that “the statute governing the commission’s powers does not include the authority to initiate an appeal in this case.”
“We see no statutory basis … for the commission to challenge a court’s interpretation of its organic statute. That decision is more properly made by the Governor’s office, and we have determined that an appeal is not required at this time,” reads a letter the governor’s chief legal counsel, Jacki Cooper Melmed, wrote Deputy Attorney General Laura Chartrand shortly before noon Wednesday asking that an appeal not be filed.
Coffman apparently ignored the request, saying her office has the statutory power to appeal because the COGCC is its legal client. In addition to its role as the state prosecutor, the attorney general’s office serves as the law firm representing state agencies.
Coffman – a Republican who, like Democrat Hickenlooper, has had considerable campaign backing from oil and gas companies – argues that COGCC interprets state laws governing it in a way that does not permit “one policy concern to override all others.” Her appeal, called a petition for cert, cites case law that it argues “never suggested that policies favoring public health and the environment are a ‘mandatory condition’.”
That argument starkly contradicts Hickenlooper’s assertion that “the commission already elevates public health and environmental concerns when considering regulating oil and gas operations.”
Hickenlooper didn’t answer The Colorado Independent’s question Friday about whether Coffman usurped his power by filing the appeal. But he did say this about his own handling of the Martinez ruling (all sic):
“I look at, the COGCC is already holding public safety and environmental issues paramount. … You’re talking to someone, when I was in private sector for 27 years, I was never sued, nor did I ever sue. … [It’s]important to look at whether this is worth all the cost and investment.”
He added that his office had been in frequent contact with the attorney general’s office and that his opposition to appealing was “not a surprise to them.”
Boulder County District Attorney Stan Garnett lauds Hickenlooper for stepping out of the fray when there’s no clear constitutional guidance about whether the governor may override the attorney general.
“I think the governor is handling this honorably,” he said, adding that a Supreme Court decision would offer legal clarity about what COGCC’s primary regulatory consideration should be.
Conservationists see Hickenlooper’s decision not to challenge Coffman’s appeal and her authority to file it as his tacit approval of trying to overturn Martinez.
“The attorney general cannot bring a Supreme Court appeal on behalf of the COGCC without that agency’s consent,” said Mike Freeman, a lawyer with EarthJustice. “He hasn’t used the tools at his disposal to avoid this appeal.”
Those tools, as Freeman sees it, would have included asking the COGCC’s board to reconsider its May 1 vote to appeal the Martinez ruling or, now that the appeal has been filed, legally challenging Coffman’s power to have done so on behalf of an agency the governor controls.
Dan Leftwich, one of the lawyers representing the young plaintiffs in the case, says one of two constitutional principles have been broken in deciding to challenge the appellate court ruling.
One, he says, is that COGCC’s board members acted without the statutory authority to bring the appeal – a situation in which non-elected officials asserted state power that’s not granted to them by statute. This is essentially Hickenlooper’s argument.
The other, Leftwich adds, is whether Coffman overstepped her statutory authority. If need be, he says, he’ll be challenging her authority in court.
He and other critics say it’s clear that politics rather than statutory power are driving the state’s reaction to the Martinez decision.
“The governor apparently made a political calculation that he can have a public stance that makes it appear that he’s in favor of protecting the public health, safety and the environment above oil and gas development while at the same time, under his branch of government, allowing an appeal that does the opposite,” Leftwich said. “What it says to me about his power is that he’s unwilling to use it.”
Added Bruce Baizel, a Durango-based oil and gas lawyer who heads Earthworks’ Oil and Gas Accountability Project: “When he comes out [publicly] now after petition for cert is filed, I just find it the height of cynicism. It’s really a grandstand play by the governor to claim credit when he has been actively opposing us.”
The political fallout from the Martinez appeal may be greater than the legal fallout. Colorado’s Supreme Court typically grants less than 10 percent of the petitions for cert filed each year. Odds are that the court won’t hear the appeal.
State Rep. Jonathan Singer, a Democrat from Longmont, calls himself an “eternal optimist” and chooses to see progress where he can find it. Having seen his constituents’ pleas for regulatory protections from the fossil fuel industry “fall on deaf ears” in Hickenlooper’s office, he says he’s pleased to see the governor finally “taking our voices to serious account.”
“(I’m) happy and proud he took that to heart,” Singer said of the letter he and 12 fellow lawmakers sent Hickenlooper earlier this week.
Still, he noted, he has one regret: “(We) should have written to (the) AG.”
Colorado Independent reporters Kelsey Ray, Marianne Goodland, Corey Hutchins contributed to this report.