EXCLUSIVE: Brauchler Says Colorado Should Not Legislate Through Litigation, AG Independence Critical
Colorado should not legislate through the courts, especially on environmental and energy issues, or push regulations that harm the state’s economy by targeting oil and gas, Republican George Brauchler said this week.
Brauchler, the district attorney for the 18th Judicial District, is running for attorney general this year after departing the hotly contested GOP gubernatorial primary. He faces Phil Weiser, a Democrat and former dean of the University of Colorado Law school and an Obama White House senior adviser.
Brauchler sat down with Western Wire ahead of the Club 20 candidate debate this weekend to discuss a wide range of energy and environmental issues facing Colorado, from a proposed 2,500-foot oil and natural gas setback on November’s ballot to donor-provided climate change legal fellows and a pair of critical lawsuits like the ‘Martinez case’ and Boulder’s climate lawsuit.
Western Wire has also reached out to Weiser for an interview.
The next attorney general will play a strong role in determining the proper role of the Colorado Oil and Gas Conservation Commission, as the so-called ‘Martinez case’ seeking to overturn the COGCC’s current balancing test in favor a much more restrictive permitting process goes before the Colorado Supreme Court. The state’s highest court picked up the case in January after last year’s 2-1 decision by the Colorado Court of Appeals ruled that COGCC must look at drilling effects on health and climate change before balancing a state mandate to “foster” oil and natural gas production.
Brauchler strongly opposes putting a regulatory and political question through the court system, echoing his March comments that he would “vigorously” defend COGCC’s position in the case.
“Policy regarding oil and gas development and permitting should not be decided by anyone wearing a robe,” Brauchler said. “It should be decided by the legislature or by the executive branch who is charged with the authority to make certain rulemaking decisions. It should not be made by a judge or judges.”
“What Martinez really did, and I think where—I respect how AG Coffman approached this—is attempted to rewrite a statute that had been implemented and interpreted for many, many years. Then all of a sudden, someone came along and said, ‘I think we ought to have this kind of a balancing test instead,’” Brauhler said, rejecting that interpretation. “That’s a debate for the legislature. That may be a debate on an initiative process for us. But that is not a debate that should be had in the courtroom and decided by a judge.”
“If we’re going to defend the constitution and our laws including the ones that establish the COGCC, then what AG Coffman did isn’t only the right thing to do, it’s mandated. She had to do it,” he said.
Brauchler said his opponent would not defend the current system, calling it an “abdication of duty.”
“[Weiser] would not take the same approach to defending Martinez, that he would withdraw from fighting Martinez. That is an abdication not only of his duty to protect the laws and the constitution, but it’s also an insight into how he thinks about policy and that’s more of an ends justify the means approach. ‘If I can accomplish this in court, I’ll just let the court figure it out,’” Brauchler said.
Brauchler said his approach relies more on Coloradans governing themselves through the democratic process, not through the decision-making of the courts.
“That is not what we want to do as Coloradans, it’s not what we want to do as Americans. We want to make decisions about how we govern ourselves with as much of a democratic process as possible,” Brauchler argued. “Regulatory rules? Far less democratic. The court is the least democratic way to govern ourselves.”
Attorney General Independence
Brauchler believes that the independently elected, constitutional office of attorney general provides much-needed oversight and a check on whoever wins the governor’s seat come November.
“I see the role the way the folks who drafted our [state] constitution see the role, and that is independent. We could have followed the same suit that east coast states have with appointed AGs by the governor. We don’t do that,” Brauchler said.
The battle over attorney general independence erupted in 2015, when Gov. John Hickenlooper, a Democrat, opposed Attorney General Cynthia Coffman’s decision to join a lawsuit against the Obama administration’s Clean Power Plan. Hickenlooper petitioned the Colorado Supreme Court to stop Coffman, but the court declined to hear the matter.
Brauchler said he agreed with Coffman’s comments that the governor and attorney general should be “separate and distinct.”
“We’re obviously not looking to have some sort of tacit agreement between the AG and the governor that they’re both going to do whatever one of them thinks is right,” Brauchler said. “What does that independence mean? I think what it means regardless of who is in the gold dome as governor, is that the AG is supposed to provide some oversight to the conduct of the executive branch.”
Brauchler vowed to work with any governor on “lawful and constitutional” matters but would provide a bulwark against any attempts by the executive branch to do otherwise.
“No Democrat or Republican governor has anything to fear from me if what they’re attempting to do is lawful and constitutional. In fact, I’ll be the guy that provides them with the best legal advice to help them accomplish their policy objectives because I don’t think I’m supposed to be involved in the idea of making policy,” Brauchler said. “But if what they want to do is a violation of our laws or our constitution, then I’m going to be the worst AG they can dream of, because I’m going to be the guy that stands between them and putting that in place.”
“My duty is to our laws and constitution, not to the governor,” he continued.
Attorney general independence has been a staple of Colorado’s legal past, Brauchler argued, thanks to divided government.
“The other reason this independence question matters with the oversight is, we’re the only state that has a Democrat as governor and a Republican AG. The only state,” Brauchler said. “When we had a Republican governor, we had Ken Salazar [as attorney general].”
Salazar, the former attorney general for Colorado and a Democrat, served for 6 years under Republican Gov. Bill Owens.
“When you talk about divided government and the benefit to the taxpayer, [Jared] Polis may want a Dem AG,” Brauchler said. “He wants someone to hold his hand as they walk down that green road all the way towards 100 percent renewable energy at the expense of hundreds of thousands of jobs, billions of dollars in tax revenue, and the economy of the state of Colorado.”
That’s not how the office should work, Brauchler said.
“It doesn’t matter if Walker [Stapleton] wins or Jared wins, I’m nobody’s lapdog. I will stand up for our laws and constitution, not an individual, not a party,” Brauchler said.
Attorney General Lawsuits
As Brauchler shifted to the question of lawsuits against the federal government, he noted the independence the state’s top legal officer should maintain with regard to multi-state lawsuits undertaken by state attorneys general and fighting federal overreach.
“If the federal government tried to overreach us on an issue like legalized marijuana, where we have decided to govern ourselves a certain way, as attorney general I would push back on that,” Brauchler said. “If someone tried to show up and start telling us how to govern or regulate our water, net neutrality, health care, those are things that as attorney general I would stand up and push back against too.”
Brauchler argued that the motivations for running for this particular office was one key area where he and Weiser differed substantially.
“There is a difference here between me and my opponent on our reasons for running for office. My opponent has said in his ad that he decided to run for attorney general because of who is in the White House. My decision to run for attorney general is because of who is in the state of Colorado and includes my family and every single thing that is important in my life,” Brauchler said. “And from that standpoint, I don’t care who is in the White House. I will continue to defend Colorado’s ability to stand up for itself, to represent itself wherever and whenever I possibly can.”
Brauchler argued that in contrast to the bipartisan attorneys general who sued the previous administration over energy and environmental issues of federal overreach in the Clean Power Plan or Waters of the United States rule, the current administration is facing a barrage of partisan lawsuits that invite more federal intrusion into states’ ability to govern themselves.
“If you look at just the first 20 months of President Trump’s administration, a purely Democratic, partisan group of AGs invariably led by Xavier Becerra from California, Maura Healey from Massachusetts, or then-New York attorney general Eric Schneiderman, they filed more than 47 legal actions,” Brauchler said, referring to members of the so-called ‘Green 20’ group of progressive attorneys general that had been led by Schneiderman and joined by at least one attorney general from the west, New Mexico’s Hector Balderas. “And it wasn’t to push back against federal overreach, it was to push back against federal underreach.”
“Everywhere that President Trump has sought to restore to the states some of their sovereignty and decision-making, you can count on these purely aggressive, activist AGs to show up and say, ‘we’re going to stop you,’” Brauchler said.
The politicization and ‘weaponization’ of the attorney general’s office has been brought to bear, not on pushing back on federal control, but to impose state power on industries, according to Brauchler.
“And that’s what’s made these AG elections so attractive to the other side. They have figured out these things operate like third U.S. Senate seats. That they can go to court and bring an administration or its rules to its knees,” he said. “And to make matters worse, they can crush an industry if they just link up arms and decide together, we’re going to file a lawsuit against big pharma. Or against big tobacco. Not that those suits aren’t warranted, but when you get 2, 3, 10, 20 states that say, ‘I’m going to bring the power of my state to drag you into court,’ other than now-trillion-dollar Amazon and Apple, who can withstand that?”
Given his opposition to politicized legal battles sought by activist attorneys general, Brauchler rejected the idea of accepting donor-paid legal fellows that would work exclusively on climate policy.
“I wouldn’t be open to it. As the only candidate in this race that has ever led government attorneys in the use of the massive powers of the state, I can tell you that the taxpayers of this state, just like my jurisdiction, want to be assured that they are the ones that hold all the purse strings for this, that they are the ones to whom that person exercising power is wholly accountable, not to some other group,” said Brauchler.
A new report from Competitive Enterprise Institute’s senior fellow Chris Horner found that as many as ten state attorney general offices from Maryland to New Mexico, accepted as many as 14 legal fellows since late 2017, supported by a $6 million grant to the New York University School of Law’s “State Energy and Environmental Impact Center by Bloomberg Philanthropies. The fund is directed by former New York City Mayor and billionaire Michael Bloomberg.
According to documents governing the placement of legal fellows, state attorney general office applicants must “demonstrate a need and commitment to defending environmental values and advancing progressive clean energy, climate change, and environmental legal positions.”
Brauchler said the notion that any outside group or philanthropy wishing to fund legal fellowships would be absurd.
“This is not the right approach. Taxpayers and citizens in general should be comforted by knowing that the attorney general’s office is funded entirely by dollars over which it has some oversight and control and not some third-party group no matter how philanthropic or altruistic,” Brauchler said. “We want to control the power of the state, and the purse strings is probably the first, best way to do that.”
Brauchler said that even “revolving door” hirings are viewed with suspicion. But that would not be as questionable as legal fellows provided by deep-pocketed, agenda-driven donors who are unaccountable to the citizens of Colorado.
“The test here too, what if the AG decided to go in a different direction than Bloomberg wanted on this issue? Is Bloomberg going to just say, ‘Oh well?’” Brauchler argued. “No, they’re taking it back. And that’s how you know who is calling the shots on this. That’s ridiculous.”
Boulder Climate Lawsuit
On the subject of the climate lawsuit brought by the City of Boulder, Boulder County, and San Miguel County, Brauchler pulled no punches.
“Obviously I’m opposed to this [lawsuit],” Brauchler said. “I really don’t think that these guys legitimately believe that there is a wrong to be righted in the court system by doing this. I think they’re looking for political points to score, media coverage, and trying to advance this idea that we can bend the judicial system to fit any issue that we want.”
Brauchler re-emphasized his opposition to judges making these types of decisions, as rulemaking should be left to legislative bodies and executive implementation, not the bench.
“The good news here is we have federal judges who have identified these frivolous lawsuits for what they are and rejected them. My hope is that is going to keep going,” Brauchler said. Climate lawsuits in Oakland and San Francisco were dismissed in June, and New York City’s climate lawsuit was rejected in July.
Brauchler rejected the idea of venue-hunting by pitching the cases to state courts, which has proved unsuccessful. Colorado’s lawsuit still faces a venue challenge, having first been filed in state court but subsequently moved to federal courts.
“Depends who is on the bench, the outcome could be different. I disagree with the idea that cities, counties, and even some states are going to make the decision that they’re going to solve whatever is going on with climate change through a lawsuit,” Brauchler said.
The attitude shared by activist attorneys general and communities bringing lawsuits is similar, according to Brauchler.
The idea is “we’re going to legislate through litigation. We might be able to convince a judge, and if we can convince a judge then we might be able to shut the world down when it comes to energy development until it accedes to our demands,’ Brauchler said.
The ultimate goal of the lawsuits is to discourage oil and gas development by investment unattractive in the state, should efforts like Initiative 97—now Prop 112’s 2,500-foot setback proposal on November’s ballot—fail to garner support.
“They want to freeze out investment. When you talk about things like Prop 112, talking to folks in the oil and gas industry, they say, ‘yes, we want to win, but winning isn’t enough anymore. Because if we’re going to have to have to do this every two years, it’s just easier to go to Oklahoma, Wyoming, or Texas. And that is devastating to the state of Colorado to hear that. But that’s the outcome that the progressive elites want,” Brauchler said.
“I’m unequivocal,” Brauchler added. “I think Initiative 97 is bad for Colorado across the board. If you give a hoot about lower income Coloradans as they struggle to meet their bills every single month, wanting to come up with a way to drive up the cost of their otherwise cheap energy is contrary to the best interests of those people.”
For oil and natural gas matters, Brauchler said opponents have carefully sought to adopt conservative concepts in order to push industry regulations.
“As a conservative, I’m a local control guy. I want my school board deciding about the education my kids receive, far more than some bureaucrat out in Denver making that decision, far more than I want someone from the U.S. Department of Education in Washington, D.C. making that decision. So local control is typically a conservative value,” Brauchler said.
However, creating a hodge-podge of regulation at the municipal or county level for oil and gas doesn’t make sense, and is a matter of settled law, thanks to the 2016 Colorado Supreme Court decision that reinforced the state’s authority superseding local measures, ruling them “invalid and unenforceable.”
“There are just some matters that lend themselves far more to a statewide approach and statewide policy that it doesn’t make sense to have them diminished in these very complicated, confusing city and county rules,” Brauchler said. “Can you imagine, not even just the towns and cities that could invoke this same idea, but 64 separate rules and regulations governing how we permit and explore for oil and gas and minerals? It would be so oppressive as to shut down the development of energy, and that really is the goal of this kind of approach.”
Gold King Mine and Beyond
Brauchler praised Coffman’s handling of the Gold King Mine incident in 2015, and the need for more private sector clean-up of hazardous waste sites.
“I respect Cynthia’s office and for them to make the decision that it’s not right for us to move forward with any kind of an action, it would be political recklessness to just jump up and say, ‘if you elect me I’m going to take it to the EPA,’” Brauchler said.
“There is a role for business to play in the clean-up of the environment. It doesn’t all have to be driven by [Colorado Department of Public Health and Environment] or other regulators,” Brauchler said, noting that private sector operators are able to move on clean-up more quickly than anything the state is able to do.
Beyond the Front Range, Brauchler argued, Colorado remains a vibrant state hungry for outside-the-box approaches that don’t just consider the wants and will of Denver.
“Everyone outside the Front Range, even as far south as Pueblo, views themselves as a second Colorado. They view themselves as an afterthought, and that was never that way when I was growing up,” Brauchler said. “They’ve articulated this to me in a bunch of different ways. Every issue that is debated under the gold dome starts and stops with an analysis of how this is going to impact Denver, and that Boulder-Denver corridor continues to exercise an undue influence over policy across the state. I’m not from Boulder or Denver. I want to be an attorney general for the entire state of Colorado.”
As attorney general, Brauchler said he would work for the entire state, not just those living along the Front Range. That includes being responsive to the needs of everyone in the state, and using technology and decentralization to make the attorney general more accessible.
“There are many different ways we can be effective and efficient with government without having to be in Denver. When I was in Iraq I was able to have Skype conversations with my boys. My idea is this, I want us to decentralize state government and I’ll start with the AG’s office,” he said.
Brauchler suggested regional offices to address issues from a public safety and environmental stance. That includes smaller environmental crimes that go unnoticed by EPA or CDPHE’s Denver offices, he added.
With Club 20’s debate coming up this Saturday in Grand Junction, Brauchler said he wanted to ensure that environmental issues like water aren’t overlooked on the drought-stricken Western Slope.
“I want to talk about my commitment to defending our water, which is a much bigger issue outside the Front Range,” Brauchler said. “You go west, or you go east, it’s a matter of life and death. They don’t want Denver taking another drop. I’m not going to let Boulder and Denver drive the narrative for what’s best for Colorado. Those are incredibly important parts of the state, but there is way more to Colorado than just that strip between Boulder and Denver. “
“They are worried they’re going to be bled dry by a Denver that just can’t stop drinking,” he concluded.