A judge dismissed Weld County’s suit challenging new state rules aimed at reducing air pollution from oil and gas development, raising questions about the chances of Garfield, Mesa and other counties prevailing in a similar case.
Chief Judge Michael A. Martinez of the Denver District Court ruled that Weld County lacks legal standing to sue the state over the rules adopted by the state Air Quality Control Commission, so the suit can go no further.
The ruling is being cheered by citizen and conservation groups that intervened in the case, including the Western Colorado Alliance, based in Grand Junction, and Paonia-based Citizens for a Healthy Community.
“We are heartened to see that these protections are not going to get challenged by Weld County,” said Emily Hornback, executive director of the Western Colorado Alliance. “We think they’re really common-sense (rules). It’s discouraging to see any local government spending taxpayer money trying to fight common-sense regulations.”
But she said she doesn’t know what the ruling might mean for the suit brought by Garfield and other counties.
The two suits are being handled by different judges but include some similar claims by the counties.
Garfield County is leading a coalition of 10 counties, which in northwestern Colorado include Mesa, Moffat and Rio Blanco counties, in challenging the state in its adopting of the new air rules.
The rules were adopted in December to help implement regulatory reforms required by the Senate Bill 181 oil and gas measure passed last year.
Recently, the judge in the Garfield coalition case granted the activist groups the right to intervene in that case, over the objection of the coalition. Activists also were allowed to intervene in the Weld County case over that county’s objection.
The Garfield coalition argues the air rules improperly impose a one-size-fits-all regulatory approach across the state, with unnecessary impacts in rural areas on the industry and local governments reliant on the industry’s contribution to the economy and tax base.
Among other issues raised in the suit, the county coalition challenges a rule requiring more frequent leak detection and repair for wells and other facilities within 1,000 feet of occupied areas including homes, neighborhoods, parks and playgrounds.
That provision was proposed by Western Colorado Alliance, the Grand Valley Citizens Alliance and the League of Oil & Gas Impacted Coloradans. The Garfield coalition says regulators included that provision at the last minute without following their rules and regulations and considering economic impacts versus benefits.
Weld County also says regulators broke laws and rules in adopting the citizen groups’ provision, and in its suit cites other concerns including potential impacts to its tax base.
Martinez ruled that Weld County hasn’t shown it will suffer any direct harm or cost from compliance with the new regulations.
“Instead, the Plaintiff points to indirect and incidental impacts that will flow from the subsequent, intervening business decisions that third party oil and gas producers will make in response to an increased regulatory burden. Even if the Court grants that these harms will result, such indirect injuries are insufficient to confer standing (to sue),” he wrote in his ruling.
Martinez also found that the county, as a “subordinate state agency” when it comes to air quality regulation, can’t sue the state absent specific statutory authority to do so.
He disagreed with Weld County’s contention that it has such authority.
“We are pleased by the district court’s ruling,” Andrew Bare, a spokesman for the state Air Pollution Control Division, said in a statement. “We have said from the beginning that the Air Quality Control Commission’s December 2019 rules — as well as the process that led to them — were consistent with state law. We will continue to aggressively pursue new rules and regulations that reduce emissions of greenhouse gases and air pollutants.”
Garfield County Commissioner Tom Jankovsky called the ruling “not good for us.”
“It adopts certain of the state’s arguments made in both cases,” he said.
“We think that Weld County will appeal, and we hope that they consider doing so,” he said.
He sees a difference in the two cases in that the Garfield-led challenge emphasizes economic impacts to rural areas from the rules that are proportionally greater than impacts to the Front Range.
He said the law requires regulators to look at, and where possible avoid, negative economic consequences.
“We don’t believe that they did that and so we’re going to move forward, see how it goes,” he said.
He voiced hope that due to some differences in the cases, and different judges being involved, the Garfield coalition’s case may have a different outcome.
Natasha Léger, executive director of Citizens for a Healthy Community, in a statement called the ruling “a victory for citizens groups and the State in their efforts to enact stronger air quality regulations that protect all Coloradans. It should send a signal to Weld County and other similarly minded counties to stop using taxpayer dollars to undermine strong public health protections.”