HomeMy WebLinkAbout20241155.tiffMay 3, 2024
OFFICE OF THE BOARD OF COMMISSIONERS
PHONE: 970-400-4200
FAX: 970-336-7233
1150 O STREET
P.O. BOX 758
GREELEY, CO 80632
To: Governor Jared Polis, Colorado Legislators and Concerned Stakeholders
Re: Senate Bill 20-229 Provisions of Great Concern and Little Demonstrated Need
This bill may represent a grand compromise on certain items, as touted by the Governor and key
stakeholders in recent press statements, but its many provisions contain some very troubling and
unprecedented revisions that have not been discussed or justified by the Governor or involved stakeholders.
These provisions are in Sections 10, 11, 4, 5 and 6 of the bill, and some are not even mentioned in the bill
summary. They concern judicial review of final agency action by ECMC, the great expansion of cease and
desist order authority for ECMC, and removing subsection 3 from both 25-7-121 and 25-7-122 which
prohibit injunctive relief and civil penalties from being imposed by CDPHE if an entity is operating in
conformance with an existing renewable operating permit.
Section 10 of the bill amends the judicial review provisions of the APA (24-2-106(5)), but just for the
ECMC and no other state agency. It changes the requirements for obtaining a stay of an ECMC order
pending judicial review of final ECMC action, adding that the appellant must demonstrate a likelihood of
success on the merits, and also changing the mandatory language of "shall" issue a stay of the order to
"may" issue the stay. This is a preliminary injunction standard, but used in reverse to thwart the ability of
an appellant to stay the effect of an ECMC order to be able to pursue an appeal, i.e., to get their day in court
while preserving the status quo. This allows the Commission by unilateral order to financially hobble an
operator to the point they can't fund operations and pursue an appeal. This is achieved primarily through
the suspension of certificates of clearance that preclude the transport of oil or gas off lease to market. If
such a sanction is ordered by the ECMC company -wide, it is a death knell for the operator and this provision
would disable their ability in most cases to survive long enough to appeal the ECMC action, no matter how
egregious that ECMC action may be. And there is no effective check on the breathtaking discretion this
would afford the ECMC Director, no Office of Inspector General in ECMC, for example.
Section --I I--of-the-bill greatly -expands the Commission's -cease -and desist authority. The current cease -and
desist authority is limited to emergency situations. The revision would add such authority "under
circumstances that cause or that threaten to cause a significant adverse impact ...that require immediate
action." Almost any non-compliance with ECMC rules can be characterized as a threat of significant
adverse impact, so this greatly broadens the Commission's C&D order authority, arguably when no need
for broadening it has been established. This language vests the Director with even broader discretion and
no objective criteria for exercise of the authority, again with no effective check other than a highly
deferential commission. It also allows for revocation of an operator's license to operate for violation of
any corrective action or cease and desist order, effectively allowing business -ending sanctions for isolated
non-compliance that may be limited to a single location. There is no check on potential abuse of this
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authority, and coupled with the judicial review provisions of Section 10 this insulates the ECMC from any
effective appeal opportunity.
Finally, Sections 4, 5 and 6 of the bill remove subsection 3 from both 25-7-121 and 25-7-122 which prohibit
injunctive relief and civil penalties from being imposed by CDPHE if the entity is operating in conformance
with an existing renewable operating permit. By allowing penalties to be sought for operating in
conformance with a renewable operating permit, the bill removes the safe harbor of a permit and sets
operators up for unprecedented enforcement disputes. It also retroactively changes the economic calculus
for all of the regulatory reforms of the last five years and vastly increases the level of scrutiny that the
APCD, AQCC, and Attorney General will need to apply to future rules as it raises the specter of a regulatory
taking with each new rule change.
These provisions are unnecessary, unjustified, and unprecedented in Colorado administrative law. They
threaten to deprive operators of fundamental fairness, certainty in permitting and equal protection under the
law. They must be stricken from the bill.
Sincerely,
ID
Kevin D. Ross
Chair, Weld County Board of Commissioners
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