Proponents to narrow scope of Colorado initiative that would impose joint-and-several liability on oil-and-gas operators

Proponents of proposed Colorado initiative 3-10 told legislative staff on April 2 that the measure’s purpose is to impose joint-and-several liability on current and previous oil-and-gas operators for damages resulting from oil-and-gas operations.

Samantha Falco, Legislative Council staff, read the memorandum’s summary: “The major purpose of the proposed amendment to the Colorado Constitution appears to be to apply joint and several liability to current and previous oil and gas operators, owners, and producers for any damages resulting from oil and gas operations.” Claire Hafner of the Office of Legislative Legal Services then raised constitutional concerns, including whether the draft could run afoul of the U.S. Constitution’s prohibitions on ex post facto laws and impairing obligations of contracts.

The proponents’ counsel, Martha Tierney, responded that the drafters will remove the initiative’s ex post facto element and relocate the operative language so it is not framed as an ex post facto provision. “Because of the issues raised here, we are going to eliminate the ex post facto element of the proposed language,” Hafner said; Tierney later confirmed, “We will make that change.”

Staff also pressed the proponents to clarify the scope of liability language that currently reads broadly as liability for “any damages resulting from oil and gas operations.” Staff warned that without limiting language the provision might be read to reach operators who never participated in or profited from particular operations. Proponents said their intent is to impose joint-and-several liability only on operators, owners, and producers of the oil-and-gas operations that resulted in the damages and agreed to revise the text to make that clear.

The memorandum included multiple drafting suggestions: rely on existing statutory definitions (for example, use the statutory term “operator”), remove redundant or conflicting penalty provisions that could create federal–state conflicts, and add an applicability clause so the measure applies only to conduct occurring on or after the measure’s effective date. Proponents agreed to consider these changes and to return with revised language.

The hearing contained no formal vote; staff concluded their technical review and proponents will update the draft language for subsequent filings or hearings.