Citizens who were denied a public hearing on drilling take their arguments to court; justices must decide between conflicting statutes
By Summit Voice
SUMMIT COUNTY —Colorado citizens who were denied hearings by the state’s oil and gas conservation commission have taken their arguments to court, and this week, the Colorado Supreme Court heard arguments in what could be a precedent setting case.
The Grand Valley Citizens Alliance is contesting a drilling permit issued several years ago, claiming that state law empowers citizens to request public hearings — even if local governments don’t request a hearing on their behalf.
Another group, Citizens for Huerfano County, is also currently enmeshed in a lawsuit in a similar case.
“We are fighting for the right to be in the room when matters concerning our health, safety, air and water are being decided,” said the Huerfano group’s attorney, Julie Kreutzer, who was also in attendance for the November 30 oral arguments before the Colorado Supreme Court. The Huerfano County case is currently pending in Denver District Court.
Attorneys for the state argued that state law lets the Colorado Oil and Gas Conservation Commission decide who is allowed to request a public hearing, and that those requests are limited to drilling applicants, local governments and surface owners.
On behalf of the Grand County citizens group, attorney Martha Tierney argued that another state statute allows for “any interested party” to be granted such a hearing.
The State Supreme Court must decide which statute takes precedence. A ruling is expected by the end of this year and the Huerfano group’s lawsuit, filed in July against the COGCC, is partly dependent on that ruling.
“The Colorado legislature has a history of making it possible for citizens to be part of decision-making in public policy matters that affect us,” said Kreutzer. “ The Commission has decided that they do not want citizens to be there, and it is up to the Colorado Supreme Court to decide if the legislature has changed it’s mind about citizen involvement.”
Colorado Supreme Court Justice Gregory J. Hobbs Jr. asked COGCC attorney Dan Domenico to explain the basis for the COGCC recognizing some interested parties and not others.
Domenico answered that the COGCC is “charged with balancing local concerns and charged by the legislature to deal with thousands of permits” and that allowing local governments, but not citizens, to request a public hearing is a “perfectly rational” way to exclude those who have “only a passing interest in an area.”
“How can they say we have only a passing interest when we live here?” said Sandy Borthick, vice president of the Huerfano County citizens group. “If anyone has only a passing interest, it’s the state agencies that seem to work hand-in-hand to issue as many permits as they can without adequately safeguarding our air, water, health and safety.”
When Justice Hobbs pressed GVCA attorney Martha Tierney to speculate about the COGCC’s general motivation to deny citizens a public hearing on contested applications to drill, Tierney said, “There is some resistance to the rabble, if you will, getting in the way.”
Justice Hobbs also asked both sides what happens if citizens want a hearing, but the local government does not request one on their behalf.
Domenico said citizens have many opportunities to provide information to the COGCC and that they can petition the COGCC at any time for a rule-making, but that “they just can’t step in at the tail end of the process, at the APD (application for drilling permit) stage.”
Tierney said that requiring local governments to request the hearings on behalf of citizen groups would be an unfunded mandate to the counties, and that it would be unwarranted to make he rights of citizens contingent on the views of the county commissioners.
In neither case did the local governments request a public hearing for the citizens. In the Grand Valley case, Garfield County filed an amicus brief with the court on the side of the citizens, while the Huerfano County commissioners have filed on the side of the COGCC against the citizens.
“(Y)ou are saying that an interested person should get the same rights to a hearing as the local government?”said Justice Nathan B. Coats.
‘Yes, your honor,” Tierney answered.
Following up, Justice Hobbs asked rhetorically what could be in the COGCC’s mind, and then asked Tierney if she thought that the COGCC was “picking and choosing” whom to consider as interested parties.
Again, Tierney answered yes, adding that the COGCC’s fear of a deluge of public hearing requests is unfounded, inasmuch as only three have been requested since the Court of Appeals ruling in the Grand Valley case.
“We must get some power back for the people,” said Kreutzer. “Or we will be facing the same problems people are having in Wyoming and Pennsylvania: Polluted air and contaminated groundwater, and no means to regain what they have lost.”