Brad Levin, Western Wire

Deference to federal authority, state supremacy in oil and gas regulations, and attorney general independence were among the issues contested between candidates vying for Colorado’s open attorney general seat come November.

Denver attorney Brad Levin, a Democrat, and George Brauchler, a Republican and prosecutor, squared off at an attorney general forum sponsored by the Colorado Oil and Gas Association earlier this week.

The two candidates covered a wide range of topics including a current lawsuit against the state’s oil and gas regulatory agency and a potential climate lawsuit from Boulder, Colo., in addition to attorney general independence, and local vs. federal approaches for the state’s top legal officer.

Levin, a specialist in commercial litigation, has criticized the sitting Attorney General, Cynthia Coffman, for being “politically driven.” Unlike other Democrats in the role, he told the Denver Post he would not be “running against Trump.”

Brauchler spent much of 2017 running for his party’s nomination for governor, but abandoned that effort to run for attorney general. He currently serves the state’s 18th Judicial District and was brought to prominence as the prosecutor of the Aurora, Colo. theater shooting.

The legal battle over the proper role of the Colorado Oil and Gas Conservation Commission’s authority to issue drilling permits to the state’s oil and gas operators dominated the discussion from the outset.

The so-called ‘Martinez case’ received a 2-1 decision in the Colorado Court of Appeals last March. The court ruled the COGCC must consider drilling activities’ effects on human health and climate change prior to any ‘balancing’ with a state mandate to “foster” oil and natural gas production as currently exists in state statute.

In late January, the Colorado Supreme Court took up the Martinez case. But a recent extension in the briefing phase of the case would put the Supreme Court’s decision after the November midterm election and squarely in the lap of the next attorney general. The current administration and staff will be briefing the case, however, not the newly-elected officers, Levin said.

“One word: vigorous,” said Brauchler. “I’m vigorously going to defend the COGCC’s position.”

“The way we govern ourselves best is when we vote for something,” Brauchler said. He said that elected representatives articulated a mission for the regulatory agency, and the agency is following that statute.

“That is good. The bad part is when we turn to the courts to come up with an answer for us,” Brauchler continued. The role of attorney general is to “defend those laws, those policies, those rules that we put in place upon ourselves,” he said.

“Representing the commission, it’s going to be the responsibility of the attorney general of the state to argue on behalf of the commission,” Levin said. “What that means is to sustain the position that the dissent in that case held that the commission got it right.”

Levin said he would defend the commission’s decision.

Local control—regulating oil and gas development at the county or municipal level—was strongly opposed by both candidates as a matter of settled law.

“I would defend the state infrastructure,” Brauchler said. “These are not local rules that are designed for anything other than to drive industry out of their counties.

The Colorado Supreme Court ruled in 2016 that the state’s authority supersedes local municipal measures in overturning a Fort Collins moratorium and a Longmont ban on fracking, ruling them “invalid and unenforceable.”

“That really is a matter of state concern,” Levin said. “The last thing you want to do is litigate,” he continued, pointing to the cost and the “tumult” that results when local control measures are launched.

Shifting from local to federal matters, Brauchler drew a sharp line on the role of defending the state’s interests.

“What we are seeing across the country the past couple years is the idea we are going to legislate through litigation,” Brauchler said. “Activist attorneys general get together and decide, ‘Hey, if we band together as 10, 15, 20 states, we can knuckle under some industry and bend them to our will,’” he said.

Brauchler was referring to members of the so-called ‘Green 20’ attorneys general, led by New York’s Eric Schneiderman, California’s Xavier Becerra, and recently joined by New Mexico’s Hector Balderas.

The difference, Brauchler explained, between the attorneys general who sued the Obama administration and the current pushback against the Trump administration was a question of federal power.

Under Obama, the attorneys general sued “largely to protect the independence of states, to fight federal overreach,” Brauchler said. What the current Democratic attorneys general are doing instead, according to Brauchler, “is to sue over federal underreach—they are suing the government for playing less of a role in our state” on issues like energy and the environment.

Levin and Brauchler were deeply divided over whether the next attorney general should accept outside help and counsel in the form of law fellow from the New York University School of Law, as many states have, most notably attorneys general who form part of the ‘Green 20.’

While Levin indicated that he would be ‘okay’ with outside help, Brauchler opposed ideologically-driven fellowships, especially if outside groups stand to benefit.

“What we want are people that are answerable to you and only you. No other outside interests,” Brauchler said.

NYU’s School of Law launched the new State Energy and Environmental Impact Center last year. The center has provided law fellows to state attorney general offices courtesy of a $6 million grant in August 2017 from Bloomberg Philanthropies, named for billionaire and former New York City Mayor Michael Bloomberg.

New Mexico’s attorney general office was among the first seven states last October to receive NYU Law fellows. Other states such as Illinois, Maryland, Massachusetts, New York, Oregon, Pennsylvania, Virginia, Washington, and Washington, D.C. have received at least one law fellow from the program.

These “special assistant attorneys general” will “fight against regulatory rollbacks,” the center said.

“Each of the attorney general offices chosen to participate in the initial phase of the fellowship program has demonstrated a commitment to advancing progressive policies on clean energy, the environment and climate change,” said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center.

The two candidates also addressed a possible climate lawsuit against oil and gas producers in the state being considered by the City of Boulder.

“We can’t have a patchwork,” Levin said. “When it comes to the viability of the industry, you can’t have these localities imposing” their will, he continued.

Brauchler opposed an ideologically-driven climate lawsuit, and said he would defend the state’s interest if litigation necessitated the state to weigh in on the case. Both candidates deferred further comment pending knowledge of the climate lawsuit’s formal details. They were, however, quite clear on the debate’s final issue.

Maintaining the independence of the attorney general is paramount.

“The attorney general is the attorney for state government,” Brauchler said, but also “separately elected.” That means “not answerable to the governor,” Brauchler said. “I am not going to be intimidated or browbeat by any other elected official” that is contrary to the law.”

“We agree with each other,” Levin said. “I find it bordering on being unseemly. What I see is just out-and-out pure politics.” He added that the race should be non-partisan.

In 2015, Gov. John Hickenlooper, a Democrat, challenged Coffman’s ability to join a lawsuit against the Obama administration’s Clean Power Plan. The Colorado Supreme Court, however, declined to hear Hickenlooper’s petition to stop Coffman.

Colorado Attorney General’s Office

At the time, Coffman said in a statement, “The roles of the governor and the attorney are separate and distinct. The two executive officers must work independently to best serve all the citizens of Colorado.”

Colorado’s attorney general is independently elected, and is one of four statewide offices in play this midterm.

Coffman, a Republican, declined to run for re-election as attorney general last November to a second term as the state’s top legal counsel and law officer in favor of a gubernatorial bid in 2018. She won in 2014 by a nine percent margin, according to the Colorado Secretary of State’s election result records.

Brauchler is running unopposed for the GOP nod, while Levin battles a four-way primary race on the Democratic ticket. He is joined by Amy Padden, a Denver attorney and former state and federal prosecutor; Phil Weiser, a former dean of the University of Colorado Law School and a senior adviser to the Obama White House; and State Rep. Joe Salazar, an attorney who represents part of the north suburbs of Denver, and a former investigator for the Colorado Department of Regulatory Agencies.

According to state candidate campaign finance disclosure reports through the end of December, Brauchler has raised nearly $220,000 in his bid for attorney general. Levin has raised more than $334,000, which includes a loan of $100,000.

Among Levin’s rivals and not in attendance at the debate was Salazar, who is a fierce opponent of oil and gas development. He has criticized Coffman for her decision to sue a county over an ongoing moratorium on oil and gas production, as well as her joining a multi-state lawsuit in 2015 that challenged the implementation of the Obama administration’s Clean Power Plan.

At a fracking ban rally in early 2017 prior to announcing his run for attorney general, Salazar told the crowd he would “bring bills to go after the oil and gas companies” and would “support those who bring bills to go after the oil and gas companies.”

“I don’t want to be in the spirit world thinking to myself that I did absolutely nothing to … help clean up this planet. … That would be something that would relegate me to the depths of hell, and I don’t want to be relegated to that,” said Salazar in a video captured by Energy In Depth.

One of those bills, sponsored by Salazar in the 2018 legislative session, died Wednesday in the Senate Agriculture, Natural Resources & Energy Committee, 3-8, with two Democrats joining the Republican majority. Salazar’s bill would have fundamentally altered the way the state’s oil and gas regulatory body, the COGCC, issued permits for drilling. The inspiration for the legislation, the Martinez case, has yet to be fully adjudicated.