Small Laws, Great Crimes: The Colorado Oil and Gas Conservation Act, by Phillip Doe [Opinion]

It’s been said that small laws breed great crimes.  The Colorado Oil and Gas Conservation Act is such a law.  The crimes committed against the people in its name are legion.

But it got even more criminal last week when the Colorado Supreme Court decided the protection of public health and the environment was not the purpose of the law and that, instead, the public must share their lives and fortunes with the economic interests of the oil and gas industry. Indeed, the public’s interests might have to be sacrificed if protecting them proves too costly for the industry.  

The implication, it could be argued, is that the state constitution got it wrong, and that a court dominated by corporate lawyers is setting it right. The first provision in the Colorado Constitution’s Bill of Rights says quite clearly:

“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.” Colo. Const. Art. II, Section 1.

Colorado Constitution, screenshot, via colorado.gov/pacific/archives/constitution

In reaching out to smack down the rights of the people — the constitution’s “good of the whole” over the rights of money — the High Court also took a meat axe to Section 3, which says:

“All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.” Art. II, Section 3

 

It’s also a fact that the constitution can only be changed by a vote of the people, but perhaps I’m becoming tedious. Still, when the lawless are the men and women festooned in black preaching from a high bench in a marbled palace that Albert Speer would envy, a word of bemusement may be warranted.

The man writing the unanimous decision for the Court was Richard Gabriel. A former corporate lawyer appointed to the court by the recently departed and little lamented Governor Hickenlooper, Gabriel has cut a wide swath for the oil industry since his appointment. It was he who wrote the opinion a couple of years back denying the citizens of the small city of Longmont the right to ban industrial fracking within their city. As intended, that decision has been regarded as a towering wall barring other citizens from seeking relief from neighborhood fracking.

In the view of Mr. Gabriel and the majority in the Court, the people have the right to ban pot shops, chemical plants, spitting-cobra festivals, cars with triangular wheels, and flying laundromats, but they have not the right to ban 40 fracked wells belching tons of poisons onto a nearby neighborhood.

In the Longmont opinion, he wrote that the legislature had, with the passage of the Colorado Oil and Gas Conservation Act, COGCA, made it unlawful for the city to ban fracking. What he didn’t address, but surely knew, was that the ban was not an act of city government, but a law drafted by citizens using the right of initiative. Once again the right of citizens to legislate is a constitutional right. It cannot be revoked by the legislature or the courts; only the people can deny themselves that right. Sometimes called direct democracy, the initiative has long been seen as a necessary tool in the face of corrupt or unresponsive government. It is why it was added to the Colorado Constitution in 1910, with almost 80 percent of the people voting for its adoption.

In writing last week’s freshly minted opinion, Gabriel reversed the Appeals Court’s Martinez decision, named after one of the youth challenging the state’s oil and gas rules. These youth asserted quite accurately that the industry was befouling the air we breathe, and that the state’s oil and gas regulations were inadequate to the task of protecting the state’s air quality. As a result, their rights to a healthy and prosperous future were being denied. They submitted a mountain of corroborative evidence and expert opinion to the court.

The Appeals court, in reversing an earlier lower court decision, had sided with the youth. They didn’t have to invoke the constitutional provisions Gabriel so cavalierly defied. They just said the clear language in the Oil and Gas Act established, undeniably, that public health, wildlife, and the environment must be protected as a condition for granting a drilling permit.

Without even a hint of irony, the state, in defense of its rules governing drilling, had argued, from the first days of this case dating back five years, that it only had to protect public health some of the time. The rest of the time it had to foster oil and gas development. Irremediable conflict be damned. Gabriel did them one better: he said damages from oil and gas only had to be mitigated if it was shown to be economically feasible for the industry to do so. He also invoked a loopy legal theory that great deference must be given to the agency administering a law, for within those agencies are the experts. In the Martinez case, the experts are the Colorado Oil and Conservation Commission. By statute the commission is loaded down with oil and gas groupies. The deference argument makes the challenge by the youth nearly impossible to win, to say nothing of the rights of the people to successfully challenge corrupt or damaging government actions. As one wag remarked, Gabriel should have been Pol Pot’s defense attorney, for he, too, was an expert — on genocide.

For the most part, Gabriel seemed to be channeling the arguments of Judge Laurie Booras who wrote the minority Martinez opinion for the Appeals Court. She apparently is full of minority opinions. She described her fellow judge, Terry Fox, the author of the Appeals Court’s majority opinion on Martinez, which Gabriel overturned, as the “little Mexican.” She described her ex-husband’s wife, who is Native American, as “the squaw.” She is also accused of stalking her married lover of 10 years and sending their love emails to his wife. She has been suspended with pay for almost a year, but the creaky wheels of the justice system for people in high places were closing in. Somewhat symbolically, she resigned the day before the Supreme Court issued its decision channeling her minority opinion.

Many people opposed the building of the new state judicial center which houses the Appeals Court, the Supreme Court, and the Attorney General’s office, The old building was a more than adequate home in a state where there are more than a few without homes. It was full of high benches and dark wood symbolizing the sober issues being deliberated and decided there, Judge Booras’ emails not withstanding. Moreover, lavish public spending for government buildings is the hallmark of authoritarian and fascist governments, and you don’t have to go all the way back to Nazi Germany or Mussolini’s Italy for verification.

Still, the state found a way to build the glittering new monument to judicial toil at a cost of about $250 million, without going to the people for a vote or their money. Termed “certificates of participation” by the legislature in the authorizing act, the people get the bill via higher fees or “certificates of participation” for every document or activity conducted by the various courts throughout the state. One should not be surprised therefore to learn that the furnishings in Justice Gabriel’s office cost $24,000. The desk alone, upon which he may have composed the Martinez reversal, cost $5,000. But fear not, these were not paid for with taxpayer dollars, but with “certificates of participation.” Who knew? And when the center opened in 2013 the Denver Post offered a front page story and picture with the caption, “Make Room for Justice.” Maybe not.

The issues of protecting public health and the environment now go back to the legislature where they properly belong. All we’ve learned so far is that a quarter of a billion dollars doesn’t buy fealty — and that a tax is not a tax if you call it a “certificate of participation.”

In truth, the Colorado Oil and Gas Conservation Act is the legislature’s mess. They made it. They need to clean it up. Representative Kerry Donovan said last year, in voting against a bill to give local control of drilling back to cities, that she thought the court should tell them what they, the legislature, meant by the law. A puzzling remark indeed, but she apparently no longer holds that view. In fact, the new democratic majority has promised to reform the act. The Gabriel decision demands it. Jared Polis, the new governor, has also chimed in.

There are other hopeful signs. Indeed, the tea leaves read better than they have for over a decade. Hickenlooper, of course, is gone. He is exploring a presidential bid and has dubbed the pursuit, Giddy Up. Many people in the Fracking Fields of Colorado have wished him a strong wind at his back, and giddy up, please!

Gone, too, is Dr. Larry Wolk, the head of the Colorado Department of Public Health and Environment. Like Hickenlooper, he is a denier of fracking’s many injuries. Quite fittingly, he has taken a position in California as house doctor for the Wonderful Company, the makers of POM Wonderful pomegranate juice and other magic elixirs. He is also reportedly advocating for the use of liquid fracking waste to irrigate Wonderful products. That is definitely not wonderful.

On the other hand, troubling signs exist to the post-election, feel-good atmosphere. The Democratic leadership has warned, a little too fervently and way too often, that the people shouldn’t expect too much. This is the flip side of the incessant corporate and Republican warning to the Dems that they shouldn’t overreach. Somehow we are asked to believe that protecting people’s health and safety is a form of overreach.

Some of Polis’ early appointments are dreadful to arched eyebrow raising. His appointment of former state legislator and Summit County Commissioner Dan Gibbs to head up the Department of Natural Resources is a disaster. As head of the DNR he will also sit on the Colorado Oil and Gas Commission and its professional staff is under his jurisdiction. Great doubt as to his suitability and trustworthiness in the job is raised because Gibbs was also the oil industry’s paid Democratic mouthpiece in its $25 million successful attempt to limit the public’s right to legislate, and especially the people’s right to legislate against the oil industry’s dictatorial reign over their lives and liberties. Their $25 million victory is being challenged in court on constitutional and voter fairness grounds.

Some think Gibbs’ appointment is a bone to former Secretary of Interior Ken Salazar’s aging, neoliberal wing of the Democratic Party and that Gibbs is being groomed to run against Republican Congressman Scott Tipton in the next general election. No one should be pleased.

In the arched eyebrow category, Cary Kennedy has been made Polis’ Advisor for Fiscal Policy. According to the announcement she will be responsible for “long-term creative fiscal policy solutions.” This may be another political payoff. She was Ken Salazar’s pick to run against Polis in the primary. Let us hope that she’s learned a tax by any other name is still a tax. It was she, as Secretary of the Treasury, who praised the creative financing for the justice center as “not-debt” but bonds to rebuild America. Apparently, to her thinking, government bonds are not debt.

Polis’ selection of Jill Ryan to head the Department of Public Health and Environment, an extremely important post, may prove a worthy counterweight to the airy Gibbs. She, like Gibbs, is a county commissioner [Eagle County], but earlier she had been a public health administrator. More importantly, she is the president of Colorado Communities for Climate Action. Neither Polis nor the Democratic leadership seems willing to admit the inseparable link between fracking and climate change. She apparently gets it. The hope is she has the freedom and moxie to clean house in a department that for over a decade has toed the line under Wolk and Hickenlooper that fracking is safe.

One thing is for sure, as many have said, the Golden Dome is owned by the oil and gas industry. It will take tremendous pressure and presence for the people to beat them back. The masses of people who have suffered sickness and pain in the Fracking Fields will show up, as will those who understand their obligation to protect the “good of the whole.” But the oil industry already has a leg up. It gave over $100K to a PAC that included Conservation Colorado and EDF to support the campaigns of Senate Democrats. This is according to records at the Secretary of State’s office. It appears from early reports out of the senate, where the margin for real reform is thin, that oil money may still work wonders.

Nathaniel Hawthorne wrote that the unpardonable sin was to break the magnetic chain of humanity. That language may be too foreign to our modern sensibility, but many people feel a bond with the earth and future generations, and that that bond must be protected and strengthened. It is imperative that they convince the legislature of the soundness of their convictions. If that doesn’t work, they can always bring up the Colorado Constitution’s Bill of Rights again. It says:

“The people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness,” Art. II, Section 2.

 

The Bill of Rights is the only great law of this state.  The British writer G.K. Chesterton warned that if “you break the great laws, you don’t get liberty, you don’t even get anarchy.  You get the small laws.”  It is time the small law and its great crimes was destroyed, and the people’s right of “enjoying and defending their lives and liberties” was restored.  Everything depends on it.