Fracktivists: Oil and gas group’s new rule blocks opponents

The Colorado Oil and Gas Conservation Commission plans to change its rules regarding how the public can challenge the group’s decisions – a change opponents claim will shut out opposition to the oil and gas industry.

The commission, a part of the Department of Natural Resources, has been in the headlines for several years, as the oil and gas industry has clashed with communities opposed to fracking, a controversial high-pressure water method of extracting natural gas.

The rule in question is on complaints. Currently, the COGCC director’s decisions on oil and gas violations can be challenged. The commission must then hold an “Order Finding Violation” hearing to review the decision.

Those who tend to appeal COGCC decisions include mineral-rights owners, land-owners, state agencies, local governments or any people who believe they are harmed by the decisions.

According to Boulder County Commissioner Elise Jones, only four appeals have been filed in recent memory, and only one went to hearing, in 2014. That hearing was on Redwine Resources in Montrose County, a drilling operation that went bankrupt and failed to follow a number of state oil and gas regulations. The company was fined $60,000. The commission ordered its well capped.

The proposed rule change says people cannot force the commission to hold a hearing on a director’s enforcement or settlement decisions.

The commission announced the rules change on May 21. It accepted prehearing statements through June 8, and allowed for responses to those statements through June 16. All of the statements are available on the commission’s website.

Five oil & gas companies and associations filed statements regarding the rule change with the COGCC last week. The American Petroleum Institute said the “clarification of the rules will streamline the complaint process and permit more efficient use of COGCC resources.”

Representatives from the Bill Barrett Corporation said that a year ago they had pointed out that the rule allowing private parties to file for an “Order Finding Violation” hearing was beyond the scope of the COGCC’s legal authority.

The attorney general agreed with Bill Barrett and advised the commission to make the rule change. It’s an issue that oil and gas companies have been raising for the last several years.

According to commission spokesman Todd Hartman, the change would still allow a private party to ask for a full commission review of a director’s enforcement decision. But that private party would no longer have the authority to force a hearing if they disagreed with the director’s enforcement decision or settlement agreement. “The difference is nuanced, but important,” Hartman said.

These hearings require expert witnesses, competing presentations and hours of COGCC staff time and major costs, he explained.

It’s akin to the way the Supreme Court operates. The court decides which cases to hear rather than automatically hearing every case that comes its way.

Since the rule change was announced, the cities of Boulder and Longmont have both filed formal statements opposing the change. Jones told The Colorado Independent the cities are very concerned about the rules change. “We feel the commission should be finding ways to increase transparency and community involvement. This proposal will only disenfranchise Boulder County residents.”

Jones said the rules change did not make sense and would only further silence the voices of concerned citizens. The process “didn’t seem to be abused or onerous,” Jones said. The rules change is “the opposite of a solution.”

Those opposed to the rules change also don’t buy the necessity for it.

In their formal response, Boulder County representatives said the commission staff had not made a compelling argument for the rules change. The county also disagreed with the industry’s argument that the current rules illegally transfer the commission’s enforcement authority to the public. “But even if that were true, the proposed rules go far beyond what is needed to address that issue by drastically reducing the rights of Complainants to be heard before the Commission,” the county response said.

The City of Longmont went a little further. The right of the public to challenge the director’s decisions becomes a “mere formality” under the rules change, according to the city. When the commission director settles with an operator over a violation, the public today can still appeal that decision. However, under the rules change, the commission would be able to change the settlement only if the director abused his discretion.

The rules changes favor the industry over the public and communities that want to protect themselves, the city statement claimed. And when a city or other local government wants to challenge the director’s settlement decision, the commission can only look at evidence that was presented prior to that decision. But the rules do not allow a city or local government to know what evidence the director had – a process that is neither fair nor logical, the city statement said.

Finally, the rules-change limits just who can file an appeal to those entitled to legal protection under the Oil and Gas Conservation Act, which the city called a “hazy standard” that is undefined in state law.

“These new rules would instead signal to communities that their voice means nothing, that only the industry’s wishes matter.”

As part of their response, representatives from  the Bill Barrett Corporation addressed the issues raised by Boulder and Longmont, stating that the few number of hearings does not legitimize the current rule.

A formal hearing on the rules is scheduled for Monday, July 20, at the COGCC offices at 1120 Lincoln Street, Suite 801, Denver. Those who want to testify at the July 20 hearing must notify them by Monday, June 22. That can be done by contacting the COGCC at 303-894-2100.

Photo credit: Erie Rising, Creative Commons, Flickr.