Title Board meeting 4/15/20

Colorado Title Board members considered 25 ballot initiatives at a meeting on April 15, 2020.

Sixteen proposals received ballot titles on Wednesday, more than half of which advanced ideas to regulate the oil and gas industry and, in some cases, protect it from regulatory excesses.

Five measures sought to replace the Colorado Oil and Gas Conservation Commission, which regulates the extraction industry, with an independent body intended to have minimal partisan pressure. Other features of the proposals included requiring the new board to establish minimum setback distances from oil and gas operations, prohibiting the weakening or repeal of various rules, and granting local governments the authority to regulate the industry in a manner that protects public health.

However, board members were initially skeptical of the detailed concept's ability to adhere to the legal single-subject requirement.

“It seems like there’s at least two subjects here,” said David Powell, the representative of Attorney General Phil Weiser. “One has to do with this board. The second subject has to do with you guys wanting local governments to do certain things. I’m seeing that as two separate subjects.”

In order to set a ballot title that appears before voters, the Title Board's principal task is to find the existence of a single subject. Sarah Mercer, an attorney for the designated representatives, responded that these initiatives were patterned after other successful ballot measures that set up a congressional redistricting commission and the state’s Independent Ethics Commission. She also pointed to a 2019 law that altered the role and the makeup of the COGCC while establishing local control over oil and gas operations.

“This [initiative] seeks to build off of what SB181 does,” Mercer said.

“181 set the parameters of the board,” countered board Chair Theresa Conley, the representative of Secretary of State Jena Griswold. “This is a much bigger overhaul. It creates a new board.”

Jason Gelender, representing the Office of Legislative Legal Services, said that he was inclined to see it Mercer’s way. “I think that while it is a close call, this measure fundamentally deals with one thing: oil and gas operations,” he explained.

The Title Board ultimately agreed that the measures pertained to the single subject of oil and gas regulation. As is customary when proponents put forward several proposals with minor variations between them, the designated representatives agreed that they would seek to place only one on the ballot.

Nevertheless, two initiatives, 312 and 313, might be offered separately, as they pertain solely to the prohibition on the COGCC weakening its own standards or those of the Colorado Air Quality Control Commission. That latter provision surprised Gelender, who observed that one regulatory body cannot alter the rules of another.

“The problem is that by putting in the measure language that says the board cannot repeal these certain AQCC rules, it implies the board has power to do that,” he argued. “But the board doesn’t.” Mercer and her co-counsel, Gwen Benevento, agreed with the observation.

The board also set titles for two initiatives from Greg Brophy and Sam Bradley, one of which would allow municipalities or counties to assume regulatory authority from the COGCC over oil and gas operations if they so choose. The initiative would not, however, give those jurisdictions the right to enact moratoriums on drilling.

“We wanted to ensure that this new section of the constitution would not allow a local government to abridge the property rights of an oil and gas company who has the lease on mineral rights in their jurisdiction,” Brophy said, of the moratorium provision.

The other initiative would require the COGCC to perform an analysis of the impact proposed rules would have on the oil and gas industry and employment within the state, then allow for comment on the analysis prior to the adoption of a rule.

Other business

In other business, the Title Board advanced to the signature-gathering stage an initiative that would phase out extreme confinement conditions for farm animals and prohibit merchants from trafficking in animal products that violate those standards. There would be a fine of $1,000 per animal per day for violations.

“There’s still going to be confinement, right?” asked Powell. “You’re talking about prohibiting confinement without adequate space.”

Christopher Jackson, the attorney for the proponents, agreed, and added that there is a distinction between a cage without adequate space and an enclosure where animals can move freely.

“Certain kinds of enclosures or pens are larger. There are ways to enclose an animal that still gives that animal a significant amount of space,” he said. “Those are distinct from cages, which suggest a very small and confined space.”

Board members also set a title extending the period of time from one year to eight years after an alleged violation that a person may file a complaint against a government official with the Independent Ethics Commission. Suzanne Staiert, one of the designated representatives, said that she chose an eight-year period to align with state-level term limits. 

Three other initiatives related to political proceedings would end the caucus and assembly process that allows candidates to appear on a primary election ballot, and only allow ballot placement by petitioning. Mark Grueskin, the attorney for the proponents, noted that parties could still hold assemblies to select delegates for national conventions or other purposes. Board members briefly heard a concern about signature thresholds potentially exceeding the number of registered party voters in some jurisdictions, but dismissed it as outside of their purview.

In fiscal matters, the board greenlit a proposal to reallocate over $100 million in tobacco and cigarette tax money to preschool programming and institute a 10% tax on tobacco-derived nicotine vapor products, plus another to lower the state income tax rate from 4.63% to 4.55%.

The board unanimously voted on procedural grounds to dismiss two proposals: Initiative 301, which intended to establish a minimum age to work at “sexually-oriented businesses,” and Initiative 302, which intended to require investigation for unexpected child deaths. Board members found that the designated representatives, Megan Augustine and Wendy Augustine, submitted their paperwork to the secretary of state’s office two hours past the deadline and that differences existed in the versions submitted to the office and to the Colorado Legislative Council.

Moreover, Megan Augustine said that Wendy was working at a nursing home and could not join the call. Conley was sympathetic, but noted that “the Supreme Court has been very firm in holding to that requirement” that all designated representatives appear for a hearing.

This was the final Title Board meeting of the 2019-2020 election cycle, unless the body receives a motion to rehear an initiative by April 22.

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