Closed meetings at well sites foster distrust

Oil and gas regulators violated open meetings rules during Western Slope visits

November 12, 2021 8:55 am

Oil and gas infrastructure is seen in the Western Slope of Colorado. (Courtesy of EcoFlight)

For decades, the state commission that keeps watch over Colorado oil and gas operators was at least as much an industry partner as it was a regulator. The law demanded it — a statute directed the Colorado Oil and Gas Conservation Commission to “foster” industry operations until the General Assembly in 2019 bolstered the commission’s regulatory function.

It was a long overdue change, particularly since the industry’s role in causing climate change has become indisputable and the risk that fracking poses to nearby communities has been convincingly established.

But some of the commission’s recent behavior suggests it can’t shake its cozy relationship with polluters. The five members of the commission recently traveled to the Western Slope and visited well sites on industry property. The visits themselves — which occurred in Gunnison, Garfield and Jackson counties — weren’t necessarily a problem. But the commission prohibited the public from attending.

That’s not just a problem. It’s illegal.


In October, the COGCC announced that commission members would visit the Western Slope and participate in one community listening session on Nov. 2 in Paonia and another listening session the next day in Glenwood Springs. A press release about the trip mentioned Senate Bill 19-181, the 2019 legislation that transformed the regulators’ mission in favor of public health and safety. Then the press release said, “In addition to these public meetings, the Commissioners will be visiting oil and gas sites during the Western Slope visit.”

Those oil and gas site visits were private, conducted on private property controlled by oil and gas operators, and the substance of the meetings was secret. Local and environmental activists justifiably objected.

“I want to know … what the commissioners will know. I want to see what they’re going to see. I want to hear what they’re going to hear because they’re going to base future decisions on that information,” Leslie Robinson, chair of the Grand Valley Citizens Alliance, told The Daily Sentinel. Robinson had a right to hear what the commissioners heard from industry representatives. Colorado’s Open Meetings Law says so.

“All meetings of two or more members of any state public body at which any public business is discussed … are declared to be public meetings open to the public at all times,” reads the law. A deputy state attorney general, Lauren Mercer, wrote to activists on behalf of the COGCC that the commission followed the open meetings law and had justification for shutting out the public, because the site visits were merely for “educational purposes” and that no state policies were discussed. She cited a 2004 Colorado Supreme Court case in which the court affirmed certain limitations to the application of the open meetings law.

But Mercer is wrong on the context and wrong on the law.

Steve Zansberg, a First Amendment attorney and president of the Colorado Freedom of Information Coalition, represents the Grand Valley Citizens Alliance. In a letter to Mercer, Zansberg explained how the COGCC attorney misinterpreted the Supreme Court ruling: While Mercer appeared to assert, based on the 2004 case, that an educational briefing not convened for policy-making purposes is exempt from open-meeting requirements, Zansberg noted that the court in fact determined that the meeting in the 2004 case did not even relate to the public business of the public body in question. Furthermore, the court determined that a “meeting is part of the policy-making process if it concerns a matter related to the policy-making function” of the public body, and as such is subject to open-meeting requirements.

Now consider the commissioner site visits.

The visits, even if they were simply “educational,” were led by the very entities that the COGCC regulates. Such a relationship implies a policy-making quality. The COGCC itself issued a public notice of the visits. Such notice itself confers an inherent public-business nature. The COGCC is still in the consequential process of formulating SB-181 rules, which apply to oil and gas producers throughout the state, and the COGCC press release that announced the site visits even alluded to SB-181. Any claim that a meeting between oil and gas commissioners and fossil fuel industry representatives had nothing to do with policy-making purposes is implausible. 

Part of the new mission of the oil and gas commission is to earn the trust of Coloradans who viewed it as complicit in massive and ongoing pollution. But every time the commission engages in secret meetings with industry representatives, the only thing it fosters is distrust.


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