Governor faces heat to respect drill ruling
A fatal home explosion linked to a natural gas well is prompting heavy pressure for Gov. John Hickenlooper not to appeal a recent ruling holding that the state must protect public health and safety as a condition of allowing oil and gas development.
Hickenlooper faces a court deadline of Thursday to decide whether to ask the Colorado Supreme Court to consider the matter. The Colorado Oil and Gas Conservation Commission, the defendant in the case, voted unanimously May 1 in favor of proceeding with the appeal.
A day later, authorities said an investigation into an April 17 explosion that killed two men in a home in Firestone revealed that it was caused by gas originating from a cut, abandoned flow line that remained attached to a nearby oil and gas well and hadn’t been capped. The same day, Hickenlooper ordered a statewide review of oil and gas flowlines, including inspections and pressure-testing of lines within 1,000 feet of occupied buildings, with his office declaring in a news release, “Public safety is paramount.”
Appealing the recent Colorado Court of Appeals ruling “will telegraph to the public you don’t mean what you say,” a letter submitted Monday to Hickenlooper and including signatures from a number of local government officeholders said.
“Specifically, it will show that oil and gas development is more important than public health and safety to your administration,” the letter said.
Signers included officeholders from Boulder, Adams and La Plata counties, and cities including Boulder, Broomfield, Lafayette, Fort Collins, Erie, Commerce City, Longmont, Thornton, Westminster and Louisville.
“We are reviewing the case carefully,” Hickenlooper spokesman Jacque Montgomery said Tuesday.
The case involves a lawsuit brought by six youths, including lead plaintiff Xiuhtezcatl Martinez, who have asked the oil and gas commission to suspend oil and gas development until it can be shown that the activity wouldn’t harm public health, wildlife and the environment or contribute to climate change. A three-judge appeals court panel decided 2-1 that the commission erred in its rationale for rejecting the youths’ rulemaking petition.
That rationale was based on 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. The court instead found that the court is mandated to protect health, safety and welfare as a prerequisite of allowing development.
“This well-reasoned statutory interpretation emphasizing the primacy of public and environmental welfare will help to protect state residents in general and is critically important in light of the Firestone disaster,” the elected officials said in their letter.
The environmental groups Conservation Colorado and Earthjustice this week also called on Hickenlooper not to ask the high court to consider the case.
“By appealing the court ruling, the government and the COGCC would be making the case that public health and safety are not the commission’s top priority in managing oil and gas development,” attorney Mike Freeman of Earthjustice said in a news release.
The American Petroleum Institute and its Colorado Petroleum Council are intervenors in the case.
Tracee Bentley, the council’s executive director and a former legislative director and senior advisor in Hickenlooper’s office, said in a prepared statement, “Colorado’s Governor would be well-supported in standing up against blatant efforts that threaten the state’s economy, property rights, jobs, and state revenue — and lack sound legal basis. Strong environmental stewardship at the state level has produced effective, state-specific regulations around the country, and Colorado is leading the way.
“A new rule making process is unnecessary, time consuming, and could be a distraction with many out of state interest groups involved, possibly diverting agency resources from their mission to protect public health and the environment,” Bentley said.
The appeals court ruling didn’t require the oil and gas commission to adopt the youths’ proposed rule or even take up the rulemaking, but only found that the rulemaking can’t be denied based on the standard the commission applied, state Department of Natural Resources spokesman Todd Hartman has noted.
David Neslin, an attorney and former director of the commission, said it’s not clear to him that it would be particularly consequential if the state doesn’t appeal.
“When I was the director in my view we prioritized the protection of public health and safety and the environment and that’s why we comprehensively updated the state’s regulations and adopted the hydraulic fracturing and took a number of other actions,” he said.
Since he left the agency, it has been if anything even more active in adopting rules and policies and guidance to protect the environment, Neslin said.
“So it’s not clear to me that if the court of appeals decision were to remain in force, that that would lead to any change in the way that the commission conducts its business,” he said.
Freeman makes a similar point in arguing against an appeal, saying that the recent ruling simply says “that Colorado must protect public health, safety, and the environment when approving oil and gas development. But the Colorado Oil and Gas Conservation Commission has been telling Coloradans for years that it already does that. If the COGCC has been meeting its obligations to protect Coloradans the State should have no objection to the court’s ruling.”
The commission voted to appeal after hearing from some Front Range residents who questioned taking that action in light of the Firestone situation. Commission members pointed to the split appeals court decision and said an appeal could allow it to get clarity and guidance from the high court in how to interpret the state’s oil and gas law, but doesn’t reflect an indifference to public safety.
Said Bentley, “Our industry remains committed to working with state and local officials to ensure that we address issues of concern as Colorado responsibly partakes in America’s energy renaissance.”
In a news release, state Rep. Mike Foote, D-Lafayette, pointed to the defeat of oil and gas measures he sponsored during the recent legislative session, including one requiring a minimum 1,000-foot setback between oil and gas operations and school property lines.
“Governor Hickenlooper and the COGCC say public safety is their highest concern. Allowing the Martinez decision to stand is one important step in showing that commitment,” he said. “… Coloradans are facing the impacts of oil and gas development from Durango to Windsor. They deserve to have their health and safety come first.”
The group League of Oil and Gas Impacted Coloradans, or LOGIC, says it has given Hickenlooper letters signed by 13 state lawmakers, 39 local elected officials and community leaders, and more than 1,500 impacted residents.