Colorado Appeals Court Ruling Calls For State To Consider Halting Oil And Gas Permits

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Above Photo: Denver Business Journal

The Colorado Court of Appeals said Thursday the state’s oil and gas commission must consider a petition from a group of Boulder teenagers to stop issuing permits for new wells until an independent third party proves that drilling can be done without harming public health or the environment.

The three-judge panel, all women, heard the case involving the Colorado Oil and Gas Conservation Commission (COGCC) in February.

The ruling was split, 2-1. The opinion was written by Judge Terry Fox, with Judge JoAnn Vogt concurring and Judge Laurie Booras dissenting.

A spokesman for the COGCC said state officials were reviewing the ruling.

The case started in November 2013 when six children petitioned the COGCC to “not issue any permits for the drilling of a well for oil and gas unless the best available science demonstrates, and an independent, third-party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.”

The petitioners are two brothers Xiuhtezcatl Martinez and Itzcuahtli Roske-Martinez, as well as Sonora Brinkley, Aerielle Deering, Trinity Carter and Emma Bray. The group currently ranges in age from 16 to 13.

The COGCC rejected the request to consider making such a regulation, saying that it was outside the agency’s authority. Denver District Court Judge sided with the COGCC’s interpretation.

The two judges that wrote the majority opinion ordered the case back to the district court, and ordered the COGCC to consider the children’s petition. The dissenting judge, Booras, sided with the COGCC’s decision to not consider the petition.

Two of the judges, Fox and Vogt, said the COGCC’s mission says that “fostering balanced development is in the public interest when that balanced development is completed ‘in a manner consistent with’ public health, safety, and environmental and wildlife impacts.”

But in an analysis that read like a detailed lesson in grammar, the ruling agreed that developing oil and gas “in a manner consistent with” environmental and public safety “does not indicate a balancing test but rather a condition that must be fulfilled.”

In essence, the two judges put public and environmental health and safety ahead of oil and gas development, whereas the COGCC traditionally has sought to balance the two sides of the equation.

Booras turned to the dictionary, specifically Webster’s Third New International Dictionary, to support her dissenting opinion, which focused on the COGCC’s goal of balance.

The dictionary, she noted, defines “consistent with” as “to be consistent, harmonious, or in accordance,” Booras said in her opinion.

“Contrary to the majority’s supposition, these definitions signify a balancing process,” she wrote.

Booras also said her two fellow judges should have focused on the statutes governing the COGCC that followed the legislature’s statement of intent to create the agency. She noted that the agency’s mission, in statute, says the COGCC must regulate oil and gas in a manner that prevents and minimizes environmental impacts and protecting public health “taking into consideration cost-effectiveness and technical feasiblity.”

Dave Neslin, an attorney with Denver’s Davis, Graham, Stubbs and former director of the COGCC, said the majority’s ruling could direct the oil and gas agency into murky waters.

“It’s unclear what the court means when they say the act mandates that the development of oil and gas be regulated subject to the protection of public health, safety and welfare. It’s analogous to the dispute of ‘how clean is clean,’” Neslin said.

The COGCC has “hundreds of pages of regulations that protect public health, safety and welfare,” Neslin said.

The ruling was hailed by attorneys for the teenagers and criticized by the Colorado Petroleum Council, the local chapter of the American Petroleum Institute, which was an intervenor in the case.

Julia Olson, an attorney with Oregon-based Our Children’s Trust, said she was delighted by the ruling.

“The court has clarified that the commission can only authorize responsible oil and gas development IF it’s protecting public health, safety, welfare, the environment and wildlife resources,” Olson said. “It’s a huge condition for the people of Colorado and their right to health and safety in light of all the adverse impacts from the oil and gas industry.”

Tracee Bentley, executive director of the Colorado Petroleum Council, called it a sweeping decision that could endanger the state’s multibillion-dollar oil and gas sector.

“The Colorado oil and natural gas industry’s long record of environmental stewardship belies the need for additional onerous rules and restrictions. This sweeping decision imperils jobs, incomes and development of critical natural resources in our state,” Bentley said.

Attorneys familiar with the case expect the COGCC to appeal the ruling to the Colorado Supreme Court.

Todd Hartman, a spokesman for the COGCC, said in a statement that the court didn’t address the substance of the children’s proposed rule.

“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,” Hartman said.

“That said, we disagree with the majority and believe the District Court and the dissenting opinion have it right. We are evaluating whether to appeal this decision to the Colorado Supreme Court,” he said.