Legal Updates

The November Ballot Can Still Affect the Energy Industry

For those interested in Colorado’s energy economy, ballot initiatives concerning oil and gas regulation have rightly taken center stage. (See [4/27/16 blog post]). As of today, however, none of those public initiatives appear destined for the ballot this November.  The Colorado Secretary of State found that proponents of the two measures did not collect the requisite number of signatures to make the ballot. Though proponents turned in slightly more than the nearly 100,000 necessary signatures, the Secretary of State must conduct a random sampling of the signatures to assure that those signing are registered voters and the signatures authentic.  The Secretary concluded that both submitted measures lacked enough valid signatures, so they would not appear on the ballot (unless proponents successfully challenge the ruling).

But despite the fact that there will be no explicit challenge to the industry, another initiative could also significantly though indirectly affect regulation of the energy industry via initiative going forward. Initiative 96 would “raise the bar” – to quote the group promoting the measure – that must be cleared to amend the Colorado Constitution through the public initiative process.  If adopted by Colorado voters in November, it would become far more difficult for public initiatives and referendums, including those concerning energy regulation, to supplant or bypass the decisions of the General Assembly and, in this case, the Colorado Oil and Gas Conservation Commission.

Specifically, Initiative 96 targets the public constitutional amendment process in two ways.  First, it bolsters the signature requirements by requiring at least 2% of the total ballot signatures come from each of the state’s 35 senate districts.  This component appears to target the increasingly common practice of (often paid) signature collectors standing outside major events like games and concerts in metropolitan areas to generate signatures quickly and easily.  Proponents of the measure allege that such strategies leave rural districts with little input into the public ballot process.  Second, a constitutional amendment would require a 55% majority, not the 50% currently required.

Of course, these procedural changes would make it more difficult for the public to directly regulate the energy industry and, in turn, the state’s economy. As Governor Hickenlooper stated, Initiative 96 “is going to ensure that our constitution is not held captive by the whims of the day.”  Therefore, although it appears that the November 2016 ballot will not directly threaten radical change to the energy industry, the outcome of the election will still have a long-term impact on energy production and regulation in Colorado.

For some background on the use and management of the initiative process see “Citizen Initiatives: Power to the People or More of the Same?”, Rebecca W. Watson & Jennifer Cadena.