You’ve probably heard lately about the Colorado Oil and Gas Conservation Commission, commonly called the COGCC.
That’s Colorado’s governor-appointed panel tasked with regulating the state’s oil and gas development. It’s a big deal in Colorado, a major fracking state with a robust environmentalist community. The commission has a dual mission: To promote oil and gas development, and to regulate that development.
The actual specific scope of that mission, however, is right now the focus of a high-profile legal dispute — and one that pits Gov. John Hickenlooper against Attorney General Cynthia Coffman.
In the middle are the nine current members of the COGCC, three of whom talked— though not much— to The Colorado Independent about their thoughts on the role of a panel that’s getting plenty of attention following a controversial Court of Appeals decision and a spate of recent gas explosions.
First, some background about that legal dispute: In 2013, a 16-year-old Boulder hip-hop artist named Xiuhtezcatl Martinez and a handful of other teenagers petitioned the COGCC to establish a new requirement that it not approve 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.”
Formed in 1951, the COGCC has regulated and promoted oil and gas development in Colorado for more than 60 years. Some critics say that the agency is hobbled by its dual mission, arguing that a desire to promote drilling activity prevents the COGCC from adequately protecting health, safety and the environment. In 2012, COGCC Director Matt Lepore told an audience of industry types and regulators, “Those things have to be done in balance.”
But Martinez and his fellow plaintiffs argue that balance is not enough. If health, safety and environmental protection cannot be guaranteed, they say, development should not continue.
The COGCC balked at this request, so the teenagers took the commission to district court, aided by environmental lawyers. They lost. They then appealed, and in March the Colorado Court of Appeals overturned the lower court’s ruling 2-1 in favor of Martinez.
The teenagers cheered it as a victory.
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 that amendments in 1994 and 2007 “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.”
But the Court of Appeals is not the state’s highest court, so it might not have the final say in Colorado. To get that final say, the COGCC would have to appeal to the State Supreme Court. The Supreme Court, however, does not have to hear an appeal. If it declines to take the case, the Court of Appeals ruling will stand.
In a May 1 meeting, the then-seven members of the COGCC — Hickenlooper recently appointed two new members to fill vacancies — decided they wanted to do just that. They asked the State Supreme Court to review the appeal. It took the board about an hour to decide, says commissioner Kent Jolley, a rancher who lives near New Castle.
The commission received legal advice during an executive session, which was closed to the public. Back in open session, commissioners briefly explained why they wanted to put the issue into the hands of the state’s highest court.
“It appears to me,” said commissioner and petroleum engineer James Hawkins during the meeting, “that since we have a split decision at the Appeals Court, that it would be in our best interest to get some clarity from the Supreme Court on how they interpret that part of our statute.”
Commissioner Ashley Ager, a geologist who works for environmental engineering firm LT. Environmental, Inc., agreed. “I think that we and the public perhaps need a little more guidance on what that decision means,” she said.
“It wasn’t that we didn’t like it,” says Jolley about the Court of Appeals ruling. “We just thought we should pursue it to the Supreme Court— the ultimate court— to decide.”
Bob Randall, who serves in Hickenlooper’s administration as the director of the Department of Natural Resources, was adamant at the time that the appeal was not an attack on health and safety. Rather, he said, it was an attempt “to get clarity and guidance from the Colorado Supreme Court in light of a strong dissent at the Court of Appeals, as well as the historic practice of this Commission.”
The commissioners then, in a voice vote, unanimously decided to move towards appealing the Appeals Court decision. Since that decision, however, members of the commission largely have kept quiet.
The commissioners serve at the pleasure of the governor — a governor who has said he did not want to appeal to the ruling. But they vote independently of the man who appointed them. Jolley and Randall say the governor did not approach the board about the case prior to their vote.
On May 17, the day before Republican Attorney General Cynthia Coffman announced her decision, Hickenlooper’s senior staff sent an email to her office asking that she not proceed with an appeal.
In a statement, the governor, a former oil and gas geologist who long has been a cheerleader for the industry, said he did not believe an appeal was necessary in part because the oil and gas commission “already elevates public health and environmental concerns when considering regulating oil and gas operations.”
But Coffman, in a statement about why she chose to appeal, said clarity from the high court “stands to have a profound effect on regulation and administrative decision making by government entities.”
If those statements seem at odds, good luck getting much clarity from the commissioners themselves.
Out of the six commissioners who voted to appeal, only three were willing to talk about their decision and about their own opinions about the broader sense of the panel’s mission.
The members of the COGCC are public figures with high-profile jobs in the public interest, but the COGCC does not provide contact information for them on its website. When asked why, two agency employees who answered the phone expressed surprise but could not explain why or where to find it. Employee Ken Robertson, a data analyst who works on the website, didn’t have an answer either.
Only one commissioner, Kent Jolley, responded directly to The Colorado Independent for this story— and only briefly.
In a phone call, he said he believes the COGCC strives for a balance between protecting public health and safety and fostering oil and gas development. “But it depends whose eyes you’re looking through, through each decision,” he said. “It depends somehow (on) how you’re looking at it, I guess.” He declined to explain further and said he might have more to say after the board’s next hearing in a couple weeks.
Commissioner Larry Wolk, a practicing physician who also leads the state’s public health agency, said he would only respond to written questions via the spokesman for that agency, not the COGCC.
Through his spokesman, Wolk told The Colorado Independent that he did not vote on May 1 during the voice vote. He says he invited the group that filed the original lawsuit to meet with the COGCC to discuss their concerns.
“They did not take me up on the offer,” Wolk says. “Absent that, I abstained.” (In an initial statement, Coffman characterized the COGCC vote as unanimous; she did not say anyone abstained. There are no mention of abstentions in a recording of the meeting.)
Asked his thoughts on the apparent disconnect between Hickenlooper and Coffman on the impact of the Court of Appeals ruling on the COGCC’s mission, Wolk said it is “unclear” that its work would be profoundly impacted by it. He describes his personal role on the COGCC as one to ensure public health and environmental concerns are represented and protected when it comes to the panel’s decision-making, rulemaking, and policy implementation.
Commissioner Bob Randall, who also serves as the interim director of the state’s natural resources agency, would also only respond to written questions sent through the COGCC’s spokesman, Todd Hartman. Randall said he voted for the appeal because there was a lone dissent and because of the commission’s “long-standing reading of the Act.”
Asked his views about the COGCC’s overall mission, he said during his decade serving on it, “everything” the commission does has been focused on ensuring the protection of public health, safety, and welfare.
“Protection of the public and the environment are paramount in the commission’s rules and actions,” he said.
Commissioner Ashley Ager did not return multiple voice messages or an email. Nether did commissioner Tom Holton who is the mayor of Fort Lupton. Acting chair John Benton did not respond to messages left for him. The Colorado Independent could not reach commissioner James Hawkins. Erin Overturf, one of two new commissioners who began their terms after the vote, declined to comment on her interpretation of the COGCC’s mission. New commissioner Howard Boigon did not respond to requests for comment.
The COGCC has come under intense public scrutiny in recent weeks following two highly publicized oil and gas disasters. On April 17, a home in Firestone, Colorado exploded after a flowline from an Anadarko well leaked flammable, odorless gas into the soil surrounding the home for nearly three months. Mark Martinez and Joey Irwin were killed, and Erin Martinez was critically injured.
On May 25, four miles north of the site of the Firestone incident, a worker was killed in an explosion while performing maintenance on an Anadarko storage tank. Three other workers were injured in the blast.
Throughout the 2017 legislative session, three proposed laws seeking to further regulate the industry, which were opposed by oil and gas groups, died.
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One bill would have extended the mandatory setback distance between oil and gas development and schools. Another would have given homeowners more notice that operators planned to “force pool” them into leasing their mineral rights. A third, proposed in the final days of the session, would have required the COGCC to map and publicize the locations of all active and abandoned flowlines, like the one that caused the Firestone explosion.
In the aftermath of the explosion, Hickenlooper’s administration ordered Colorado’s oil and gas operators to inspect and pressure-test all existing flowlines within 1,000 feet of homes. Operators have also been tasked with reporting the beginning and endpoints of all active flowlines, though a typical lack of straight lines makes such information of little use to homeowners wondering whether their homes are near such lines. In the case of Firestone, the responsible line was considered inactive.
Commissioner Wolk, who said he considers health and safety concerns when voting on matters that come before the COGCC, told The Colorado Independent, “These type of incidents would not have been prevented by actions of the commission.”
But, he added via email, “We may be able to address some of these issues in the future through rule making and legislation.”
Photo credit: Adam Stielstra