Oil & Gas 360® has learned that the Colorado Supreme Court will hear the opening briefs for Martinez v. COGCC (docket number 2017SC297) on April 2, 2018.

It’s a meaningful case because the outcome could force a change to the criteria which Colorado’s oil and gas regulator—the Colorado Oil and Gas Conservation Commission (COGCC)—must use when approving or denying permits for oil and gas companies to drill wells, develop acreage and produce oil and gas in the state.

With post-downturn production taking off in the DJ Basin—anchored by dozens of oil and gas companies pad-drilling the Niobrara formation in Weld County’s Wattenberg field—a high court decision that results in changing oil and gas permitting is significant. Colorado ranks as the fifth largest state in the U.S. for production of natural gas by the U.S. Department of Energy and seventh for oil production.

Case background

The beginning of the Martinez v. COGCC case dates back to November 15, 2013, when petitioners Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray, minors appearing by and through their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray, petitioned the COGCC to impose a rulemaking as recapped on April 22, 2014,  in a memorandum to the COGCC commissioners from then COGCC Director Matthew Lepore.

Essentially Martinez and fellow petitioners sought to have COGCC impose a rule that would entirely prohibit permitting of oil & gas activity in the state unless the COGCC could assure zero environmental or climate impact from the activity.

The petition requested of the COGCC to promulgate “a rule to suspend the issuance of permits that allow hydraulic fracturing until it can be done without adversely impacting human health and safety and without impairing Colorado’s atmospheric resource and climate system, water, soil, wildlife, other biological resources.”

Lepore’s memo went on to say, “The Petitioners request the Commission to take the following specific actions ‘to protect the health and safety of Colorado’s residents and the integrity of Colorado’s atmospheric resource and climate system, water, soil, wildlife, other biological resources, upon which all Colorado citizens rely for their health, safety, sustenance, and security’:

(1) Evaluate the impacts of oil and gas drilling on trust resources and human health according to the best available science before issuing any permits for oil or gas drilling or exploration;

(2) Adopt a climate recovery plan by March 15, 2014, based on the best available science that fulfills the Commission’s duty to protect trust assets from impairment;

(3) Publish annual reports, which must be verified by an independent third-party, on statewide greenhouse gas emissions from the oil and gas industry on the Commission’s website for public review;

(4) Adopt any necessary policies or regulations necessary to implement the proposed action detailed in sections (1), (2), and (3) above.”

The COGCC rejected the Martinez petition. The COGCC said it was already carrying out its business as mandated by Colorado statute.

Martinez et al took the COGCC to court. The lower court ruling favored the Colorado Oil & Gas Conservation Commission, confirming that the commission did not have to comply with the Martinez et al petition for a rulemaking. The effect was that COGCC could continue permitting and regulating oil and gas in Colorado the way it always has—by balancing the fostering of responsible oil and gas development with safeguarding the public health, safety and welfare.

Martinez attorneys take the case up the food chain

Attorneys for the petitioners, a youth-led group of national climate activists, took the case to the Colorado Court of Appeals.

The Martinez petitioners and their attorneys argued that the COGCC had a separate duty to protect health, safety and welfare and environment, rather than providing a balance of the commission’s two mandates. Two of the three appellate court judges agreed with the interpretation and overturned the lower court in a two-to-one decision.

The decision by the appellate court, if allowed to stand, would change how the Colorado Oil and Gas Conservation Commission approaches its duty to carry out the law that created it.

To the Colorado Supreme Court

The Colorado Oil and Gas Conservation Commission voted to take the ruling to the Colorado Supreme Court. Amidst appeals by Gov. John Hickenlooper to not petition for the high court review of the ruling, Colorado Attorney General Cynthia Coffman nonetheless officially petitioned the high court to review the appeals court reversal of the lower court.

In late January 2018, the high court agreed to hear the case. Opening briefs will be heard by the court beginning April 2, 2018, according to a clerk at the state’s highest court.

Legislative update on a proposed piece of legislation that was inspired by the Martinez case–HB18-1071–“Regulate Oil Gas Operations Protect Public Safety”:

The bill was written so as to codify the result reached in the Martinez case by the Colorado appeals court. The bill passed the Colorado House and was sent to the Colorado Senate, landing at the Committee on Agriculture, Natural Resources, & Energy.  The committee has the bill’s last action On March 7, 2018 noted as “postponed indefinitely.”

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