Yesterday, the Colorado Supreme Court decided Colorado Oil and Gas Conservation Commission v. Grand Valley Citizens’ Alliance, No. 10SC532 (Colo. June 25, 2012), which involves the public’s right to a hearing before the Commission. In a 6 to 1 decision, the Supreme Court held that the Colorado Oil and Gas Conservation Act requires the Commission to hold a hearing in response to a public request only for rules, regulations, or orders. Other hearing requests by the public are governed by the Commission’s regulations, which do not entitle the public to hearings on applications for permits to drill (APDs).

The Grand Valley Citizens’ Alliance case arose out of a 2008 petition by organizations and individuals seeking hearings on APDs for wells located several miles from Project Rulison in Garfield County. Project Rulison was a 1969 underground nuclear detonation, and the petitioners alleged that the APDs accordingly raised issues of public health, safety, and welfare. Because Commission regulations did not authorize members of the public to request hearings on APDs the petition was treated as a complaint and no hearing was held. After the Commission conditionally approved the APDs, the petitioners filed a lawsuit. The District Court dismissed the lawsuit, but the Court of Appeals reversed. In a potentially sweeping decision, the Court of Appeals held that the Commission is statutorily required to hold a hearing in response to any petition involving a matter within its jurisdiction, including APDs.

The Court of Appeals based its decision upon Section 108(7) of the Oil and Gas Conservation Act, which states that “[o]n the filing of a petition concerning any matter within the jurisdiction of the [C]ommission, it shall promptly fix a date for a hearing thereon.” The Supreme Court concluded, however, that this provision is implicitly limited to rules, regulations, and orders. The Supreme Court based this conclusion upon other language in Section 108, as well as other provisions of the Act which mandate hearings in certain circumstances or distinguish permits from rules and orders. The Supreme Court further concluded that permits are governed by Section 106(1)(f), which grants the Commission broad authority to promulgate permitting procedures, including authority to specify who may request a hearing. Because the Commission’s regulations do not authorize members of the public to seek hearings on APDs the Commission properly denied the petition at issue.

The Supreme Court’s decision confirms that Commission hearings are not required in all instances. It also affirms the Commission’s longstanding practices of defining by regulation who may request hearings on matters not involving rules, regulations, and orders and not allowing members of the public to request hearings on APDs. These practices are prudent given that the Commissioners are volunteers who meet every five weeks, that thousands of APDs are submitted annually, and that the Commission’s jurisdiction is extensive. If any member of the public were entitled to a hearing on any APD or other matter, then this could overwhelm the Commission and impede the permitting process. As the Supreme Court noted, members of the public may still voice their concerns; but they must do so by submitting comments and complaints.