Oil and Gas Lobby Thwarts Reform in 2013 Legislative Session

conservation coloradoDENVER — In the closing hours of the 2013 Colorado legislative session the oil and gas lobby thwarted efforts of concerned citizens statewide to meaningfully reform drilling and fracking regulations in Colorado. HB 1267, the bill to increase fines and institute mandatory minimum fines for the worst violations, was considered today. Unfortunately, after a conference committee reinstated mandatory minimum fines at a reduced level, the Senate balked and adopted a weak version of the bill without mandatory minimums. House bill sponsors rightly let it die in the House.

The demise of HB 1267 marked the end of oil and gas legislation this year. The session was disappointing for the many Coloradans who called for increased protections for our environment and public health from the impacts of heavy industrial oil and gas development.

“Today, Coloradans rightfully concerned about the increasing impacts of drilling and fracking on our children, communities, public health and environment were pushed aside by an aggressive lobbying effort from the multibillion dollar oil and gas industry. At times working in concert with the Hickenlooper Administration, the industry was able to defeat, or significantly weaken, measures that would have brought greater transparency and accountability to their operations and given equal weight to protection of environment, public health, and communities,” said Pete Maysmith, Executive Director, Conservation Colorado. “Even with the defeat of these common sense bills, Coloradans will continue our work to make sure the oil and gas industry takes responsibility for its actions, just like the rest of us do, and is held accountable for its impacts on our state and our neighborhoods.”

Conservation Colorado sincerely thanks our legislative champions who have been responsive to constituent concerns about drilling and fracking. Champions have included: House Majority Leader Dickey Lee Hullinghorst (DBoulder), Rep. Mike Foote (DLafayette), Rep. Jonathan Singer (DLongmont), Rep. Joe Salazar (DThornton), Rep. Diane MitschBush (DSteamboat Springs), Senator Matt Jones (DLouisville), Sen Jessie Ulibarri (DCommerce City) and many others.

Below are quotes from a number of Coloradans as they testified and commented on legislation to set mandatory minimum fines for polluters, close loopholes omitting the largest oil and gas field in the state from groundwater testing and eliminate conflicts of interest on the Oil and Gas Commission.

Eva Henry, Adams County Commissioner, on closing Greater Wattenberg Area Loophole (HB 1316):

“In recent months, Adams County has seen increasing public concern about oil and gas development happening close to homes and neighborhoods. In our community, we see areas with very tight development across our entire county, yet the Greater Wattenberg Area is exempt from this rule. Why should the wells be treated differently when it comes to monitoring groundwater just because they are on the wrong side of our county? We are relying on the state to create baseline monitoring, which is not possible with two different standards all of Adams County deserves the same level of protection.”

Peg Perl, Staff Counsel, Colorado Ethics Watch, on reducing conflicts of interest on the Oil and Gas Commission (HB 1269):

“This measure will increase transparency of the Commission, bolster accountability and strengthen public confidence in oversight of the oil and gas industry in Colorado.

Members of the Commission currently are forced to choose between what is best for the health of the public and what is best for their employer.

Having commissioners who are on the payroll of the regulated companies erodes the public’s trust in this public governing body.

The public expects unbiased public officials to hold the oil and gas industry accountable – this legislation provides the accountability and transparency the public deserves.”

Bruce Baizel, Executive Director, of Durango, CO based Oil and Gas Accountability Project, stated on increasing fines and inspectors (HB 1267):

“Compared to other major oil and gas producing states, Colorado’s fines for oil and gas violations are weak and as a consequence public health and the environment in Colorado are not being adequately protected.

Setting the minimum fines will begin to change both the perception that violations of regulations have no monetary consequence and how companies operate in Colorado.”

Elena Nunez, Executive Director, Colorado Common Cause, on reducing conflicts of interest on the Oil and Gas Commission (HB 1269):

“Asking members of the Commission to regulate the industry that employs them creates an inherent conflict of interest. When considering regulations, Commissioners must be able to prioritize the protection of public health and environment without the burden of balancing financial interests of their employers.

The adoption of strong conflict of interest policies is not an indication of corruption, but is meant to prevent a situation where competing interests could influence decision making. Good conflict of interest provisions promote public trust in an institution’s governance and enhances public confidence in the decision making process.”

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2 Comments on “Oil and Gas Lobby Thwarts Reform in 2013 Legislative Session”

  1. Carl Mc Williams Says:

    I assert the time is ripe for challenging the very constitutionality of the COGCC itself.

    To reiterate; it is my layman’s opinion the legislative statutes that created the COLORADO OIL & GAS CONSERVATION COMMISSION are unconstitutional and will never stand constitutional muster in federal district court.

    I have extensive experience in California (2000-2003) as the “Lead Representative Plaintiff” in a federal class action, not unlike this “Constitutional Controversy” with the COGCC. Based upon that experience, I believe that the only strategy that has a chance of success is to challenge the constitutionality of the COGCC statues in federal district court. [NOTE: FEDERAL DISTRICT COURT, NOT COLORADO STATE COURT.]

    Here is the COGCC statute that I hold is unconstitutional: C.R.S. 34-60-105; “Powers of COGCC Commission”

    “(1) The commission has jurisdiction over all persons and property, public and private, necessary to enforce the provisions of this article, and has the power to make and enforce rules, regulations, and orders pursuant to this article, and to do whatever may reasonably be necessary to carry out the provisions of this article. Any delegation of authority to any other state officer, board, or commission to administer any other laws of this state relating to the conservation of oil or gas, or either of them, is hereby rescinded and withdrawn and such authority is unqualifiedly conferred upon the commission, as provided in this section. Any person, or the attorney general on behalf of the state, may apply for any hearing before the commission, or the commission may initiate proceedings upon any question relating to the administration of this article, and jurisdiction is conferred upon the commission to hear and determine the same and enter its rule, regulation, or order with respect thereto.”

    As you know: Within the preamble of the July 4, 1776 Declaration of Independence, the legal doctrine of “Consent of the Governed” is established. Therefore, as you read (above) the unfettered legal and political powers “the commission has jurisdiction over all persons and property, public and private to enforce the provisions of this article'” granted by an act of the state legislature to the COGCC, without a vote of the people of Colorado (Consent of the Governed) it becomes quite apparent where the unconstitutionality of the COGCC is found.

    Certainly, this legal action must start with competent counsel: I suggest the legal strategy is structured as a “Constitutional Controversy-Class Action” seeking temporary injunctions halting all existing and future COGCC permitted drilling activities until the constitutional controversy is settled. Use federal class actions (FRCP #23 (b) (2)) and 28 USCS, Sec. 1331-1332, (et seq). to frame the case. [NOTE: It is extremely important to choose legal counsel who is an expert in federal rules of civil procedure, (FRCP) and that the original complaint is “well-pleaded”. The “class certification” is absolutely dependent on a “well-pleaded-complaint”.]

    Moreover, I hold the controlling precedent that will prevail in a federal constitutional challenge to the COGCC statutes is: MARBURY V. MADISON(1803) [US SUPREME COURT] Chief Justice John Marshall: “An act of the legislature that is repugnant to the constitution is void”.***

    Furthermore, a Colorado case that will concur is: SPEER V. PEOPLE ex rel, Rush, 52 Colo, 325, 122 P. 768 (1912) “A change in the plan of government-power is granted only to the people”. [NOTE: If properly pleaded SPEER, ( which is unequivocally Colorado black letter common law) will make apparent during the class certification phase, that C.R.S. 34-60-105; (Powers of COGCC Commission) “changed the plan of government and that power is held only by the people”.

    Carl Mc Williams
    Silt, Colorado

    *** MARBURY V. MADISON: In the framing of the class action/constitutional controversy “well pleaded complaint” against the COGCC, it is essential that John Marshall’s most eloquent opinion be paraphrased to mirror the constitutional controversy at bar: “Supposed to be long and well established”………..”The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.”………………..”Those, then, who controvert the principal that the constitution is to be considered, in court, as the paramount law, are reduced to the necessity of maintaining that courts must close their eyes to the constitution and see only the law.”…………….”This doctrine would subvert the very foundation of all written constitutions.”…………………”It would be giving to the legislature a practical and real omnipotence”…………”The constitution is superior to any ordinary act of the legislature”.

  2. Carl Mc Williams Says:

    As a follow-up to my comment in Peggy’s blog (above): I have been asked to “connect the dots” between MARBURY V. MADISON and the unconstitutionality of the COLORADO OIL & GAS CONSERVATION COMMISSION.

    The Preamble of the 1876 Colorado Constitution states:

    “We, the people of Colorado, with profound reverence for the Supreme Ruler of the Universe, in order to form a more independent and perfect government; establish justice; insure tranquility; provide for the common defense; promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the ‘State of Colorado'”. And;

    Article II, Sec. 1 of the Colorado Constitution under Bill of Rights “VESTMENT OF LEGAL POWERS”.

    “In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare: All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.” And:

    In a 1938 Colorado “well settled” case law: “All governmental departments must answer to the people. It is well that all departments give pause, that they may not offend. All must answer to the people, in and from whom, as specifically set forth in this section, all political power is invested and derived. Hudson v. Annear, 101 Colo. 551, 75 P.2d 587 (1938).”

    Therefore, based upon the above and the unthinkable political and legal powers granted to the COGCC by an act of the legislature, and not by the consent of “We the people of Colorado”, the unconstitutionality of the COLORADO OIL & GAS CONSERVATION COMMISSION is quite apparent. In federal district court, use MARBURY V. MADISON as the controlling precedent and SPEER as Colorado case law precedent.

    Carl L. Mc Williams
    Silt, Colorado

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