Youth petitioners win appeal against COGCC

The Colorado Court of Appeals has ruled that the Colorado Oil and Gas Conservation Commission erred in its rationale for rejecting a rulemaking petition by youth activists.

In the process, the court disagreed with the agency’s longstanding position that its mandate under state law is to strike a balance between energy development and protection of public health, safety and welfare. Instead, the court said, the agency is mandated to protect health, safety and welfare as a condition of development.

The 2-1 ruling released Thursday came in a case in which the six Colorado youths have sought to have the commission initiate action on a rule to suspend oil and gas development until it can be shown that it wouldn’t harm public health, wildlife and the environment or contribute to climate change.

The ruling overturns a district court ruling affirming the commission’s rejection of the rulemaking petition. The commission had concluded it lacked the authority to enact such a rule under the state Oil and Gas Conservation Act because the law requires a balance between oil and gas development and protection of public health, safety and welfare.

The appeals court said the law “provides that fostering balanced development is in the public interest when that balanced development is completed ‘in a manner consistent with’” protecting public health, safety, and environmental and wildlife impacts.”

It adds, “Critical here is the proper interpretation of the phrase ‘in a manner consistent with.’ We agree with Petitioners that ‘in a manner consistent with’ does not indicate a balancing test but rather a condition that must be fulfilled.”

The court didn’t rule on the merits of whether the commission should adopt the proposed rule. Nor, it said, did it rule on the petitioners’ claim that the commission’s interpretation of the law unconstitutionally infringes on their rights to enjoy “their lives and liberties, protect their property, and obtain their safety and happiness.”

The petitioners in the case include Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter and Emma Bray, acting through their legal guardians.

The American Petroleum Institute and Colorado Petroleum Association intervened in the case to support the district court ruling. The Colorado Department of Public Health and Environment also filed a brief in support of the COGCC, while 28 interest groups filed two briefs supporting the petitioners.

Judges Terry Fox and JoAnn Vogt ruled in favor of the youths, while Judge Laurie Booras dissented.

The six petitioners are members of the Boulder-based youth group Earth Guardians.

Xiuhtezcatl Martinez, 16, is youth director of Earth Guardians. He said in a news release, “Our movement to fight for the rights of people and our environment is evolving. From the streets to the courtroom the voices of the younger generation will be heard and the legal system is a tool for our resistance. … I’m very optimistic about the potential this lawsuit has to protect my Colorado.”

Martinez also is one of 21 youth plaintiffs in a federal climate case headed to trial in Oregon this fall. The case accuses the government of discounting greenhouse gas emissions from fossil fuel development, thus making young and future generations vulnerable to their impacts.

Bruce Baizel, energy program director for the group Earthworks, said in a news release that Thursday’s ruling “is good news for Coloradans who care about their health. Up until now, the state of Colorado has claimed that fracking and drilling can occur in your backyard, no matter if you don’t want it there or if it’ll harm your health.”

Last year the Colorado Supreme Court rejected Longmont’s ban on hydraulic fracturing in oil and gas development and a five-year fracking moratorium in Fort Collins, saying such community measures are pre-empted by state regulations.

Said Baizel, “Now the state of Colorado, after removing communities’ power to ban fracking and drilling themselves, might have to effectively ban fracking inside cities to protect residents’ health.”

Dave Neslin, a practicing attorney and former COGCC director, said by email that the ramifications of the decision remain unclear. He wonders whether the court is contending the agency must protect health and the environment without qualification, or is allowed to consider other factors.

“As the dissent notes, the part of the statute that addresses environmental mitigation specifically requires the agency to consider cost effectiveness and technical feasibility. This could potentially give rise to further litigation over how much environmental ‘protection’ is required in this context, analogous to similar issues regarding how ‘clean’ is ‘clean’ that courts have long wrestled with,” Neslin said.

He added, “It is ironic that the decision suggests the agency has not been sufficiently protective of the environment, when it has been a national and even international leader in mitigating the environmental effects of oil and gas development through things like chemical disclosure, groundwater monitoring, community consultation, wildlife protection, and site reclamation. The many hundreds of pages of regulations, policies, and guidance that the agency has issued during the past decade tangibly demonstrate the importance that it has placed on environmental protection.”

He said he suspects the state will appeal to the Colorado Supreme Court, and that court may reach a different conclusion than the appeals court did.

Todd Hartman, a spokesman for the state Department of Natural Resources, said by email that the state is evaluating whether to appeal. He emphasized that the court didn’t rule on the substance of the proposed rule the petitioners requested.

“This decision does not require the Commission to adopt the proposed rule or necessarily take up the requested rulemaking, only that the rulemaking can’t be denied on the standard the Commission applied. That said, we disagree with the majority and believe the District Court and the dissenting opinion have it right,” he said.


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