The Colorado Supreme Court has upheld the ballot titles of six initiatives seeking to regulate the oil and gas industry, putting them back on track for placement on the November ballot.

John Justman, a Mesa County commissioner, challenged the Title Board’s approval of Initiatives 173-177, which would establish minimum setbacks of 2,000 or 2,500 feet between oil and gas operations and occupied structures or “vulnerable areas,” while also permitting localities to go further. Justman, represented in his brief by attorney Suzanne Staiert, also objected to Initiative 178, which would mandate that oil and gas operators provide at least $270,000 of financial assurance per well for cleanup costs. 

During the Title Board’s initial consideration of Justman’s objection, board Chair Theresa Conley refused to consider his request that she recuse herself from participating in the deliberation. Conley, the representative of Secretary of State Jena Griswold on the three-member panel, made what Justman considered to be prejudicial statements against the extraction industry during her previous job at Conservation Colorado.

“The Petitioner is legitimately entitled to a fair and unbiased decision maker,” Justman argued to the Supreme Court.

The Title Board must consider whether an initiative pertains to a single subject and, if so, set a ballot title to appear before voters that is brief, yet also encompasses the central features of the measure. Justman claimed that the initiatives contained subjects other than increased setbacks. He identified the extraneous topics as “the shuttering of new oil and gas development” and “stripping away the ability of home-rule municipalities to govern themselves” by potentially overriding localities’ existing setback regulations.

Justman added that the measures effectively ban new oil and gas development and create an unallowable coalition between people who favor uniform setback standards and those who favor local control of oil and gas operations.

Michael Kotlarczyk, the attorney for the Title Board, responded in a brief that the various features Justman had identified were necessarily connected to the subject of increasing setbacks. The speculation from Justman that the measures would bring about a de facto ban on extraction was not something the board is allowed to consider in its decision.

“The powers of home rule municipalities changed only with respect to how they affect oil and gas setback provisions, the measure’s single-subject,” he argued.

As to the attempted disqualification of Conley, Kotlarczyk said that the Title Board does not allow such challenges, and that there is a presumption of impartiality in the absence of any evidence that the decision-maker has a personal or financial stake in the decision.

“This Court has rejected that such statements” – those made by an official before they took office – “demonstrate a biased decision maker,” he wrote.

Justman advanced similar arguments for Initiative 178, and added that the measure “misleads voters into believing that actual costs to close and remediate a well is $270,000,” despite testimony at the Title Board that this number was excessive. Kotlarczyk reiterated that this was not a single-subject matter for the board’s consideration.

The court affirmed the Title Board’s actions in all six cases without elaboration.