Title Board rehearing on 2/19/20

Title Board members David Powell (left) and Theresa Conley listen to an argument during the board's meeting of Feb. 19, 2020.

Six ballot initiatives that seek to increase setbacks for oil and gas wells and to hold extraction companies financially responsible for well cleanup survived a challenge from opponents on Wednesday.

“We believe that this initiative really is surreptitious in its presentation,” argued attorney Suzanne Staiert. Staiert represented objector John Justman, a Mesa County resident. “The real purpose of this initiative we believe is to stop oil and gas development in Colorado, not necessarily just to do a setback.”

The Colorado Initiative Title Setting Review Board at its Feb. 5 meeting greenlit the initiatives, using ballot titles virtually identical to the failed Proposition 112 from 2018.

“Despite this ten-point loss and a sweeping overhaul of oil and gas regulations enacted by the General Assembly in the 2019 session, the proponents are back with much the same initiative,” read the objection from Justman.

The majority of the measures would institute either 2,000 or 2,500-foot setbacks of oil and gas development on non-federal land from occupied structures and “vulnerable areas,” such as playgrounds or waterways. One variant would allow owners of single-family homes to waive the setback requirement for their property.

Staiert also filed a motion to disqualify board Chair Theresa Conley from participating in the matter based on her past employment and purportedly biased statements against the extraction industry on social media. Conley, the representative of Secretary of State Jena Griswold on the three-member panel, worked for five years at the environmental advocacy group Conservation Colorado.

“The alleged appearance of impropriety is not grounds for a rehearing or to disqualify a board member,” said Conley, adding that the motion reflects a “misunderstanding of the board’s narrow purpose.”

Martha Tierney, an attorney for proponents Anne Lee Foster of Boulder and Suzanne Spiegel of Lafayette, attempted to dismiss one of Justman’s challenges, pointing out that he failed to write his name on one of the motions submitted. Board members appeared bewildered at how to handle the request, eventually concluding that it was a typographical error without an intent to mislead.

The board denied all requests from Justman to reconsider the setback initiatives, including another proposal to mandate that oil and gas operators provide $270,000 in financial assurance per well, to be used for the cleanup, closure and remediation of the well.

Staiert turned to Chad Calvert, the manager of government relations for Noble Energy. He testified that his company plugged 838 vertical wells with cement in 2019, cut off the top of the well and removed all related materials from the surface. Noble then remediated the surface land, with a total cost for all activities averaging $90,000 per well.

“This measure requires three times that. It can’t be described as ‘financial assurance,’” Staiert maintained. Companies would find the cost of doing business prohibitive, and she estimated that extraction companies would collectively need $16.2 billion in assurance.

Tierney fired back that the opponents seemed to be debating the merits of the measure, which the Title Board cannot consider in its decision.

“The objector here seems to be arguing this is a bad idea, and that is not something the Title Board has jurisdiction to decide when setting a title,” she said. Companies would not necessarily need to spend the entirety of the $270,000 per well, just to demonstrate that they had the financial ability to remediate well sites. Furthermore, Tierney continued, although Calvert testified to vertical wells, that is not the only type of well in Colorado.

Calvert returned to state that plugging horizontal wells, in his experience, added $20,000 to the cost per well.

In addition to upholding the oil and gas measures, the Title Board also rejected objections to 17 fiscal measures whose titles were set as part of a large package of submissions from the Colorado Fiscal Institute. Rebecca R. Sopkin of Lakewood and Tyler Sandberg of Aurora argued that several proposals to redo the state’s income tax calculations and create a minimum corporate income tax contained multiple subjects.

While upholding their previous title-setting decisions, board members continued to express their aggravation to Edward Ramey, the attorney of designated representatives Carole Hedges and Steve Briggs of Denver.

“The sheer level of difficulty we’re having setting a title we’re comfortable with for a measure that is only a paragraph long is giving me pause,” said Gelender, referring to a proposed constitutional amendment entitling taxpayers to “a fair and just tax system.”

“They really have weaved a rather clever measure,” he continued, saying the board is supposed to inform the voters what the proposal does, but the effects are too vague to know.

Another measure which would require tax increases that affect only the bottom 90% of income earners to vote on the proposal — something that the Taxpayer Bill of Rights already guarantees for all tax increases — won the label of “surreptitious and confusing” from Sopkin.

“We have been clearly told,” countered Ramey, “that we cannot go into TABOR itself and start changing things because it contains multiple subjects.”

“I don't know if that is in fact true,” said Conley.

Hedges and Briggs have submitted separately an initiative to repeal TABOR in its entirety. Ramey took issue with the presumption of objectors that proponents are trying to adjust the scope of TABOR.

“If TABOR is repealed, this measure stands,” he said. “We’re not trying to be sneaky.”

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