Martinez case could force the state to prioritize health and safety over drilling rights

From Times-Call/Denver Post

The state’s highest court announced Monday that it will review the Colorado Court of Appeals’ ruling in favor of the plaintiffs in what’s commonly referred to as the Martinez case, a lawsuit headed up by a Boulder teen Xiuhtezcatl Martinez.

Six youth, including Xiutezcatl Martinez, and attorneys from Our Children’s Trust, filed a lawsuit against the Colorado Oil and Gas Conservation Commission against fracking and recognizing climate change as well as to protect constitutional rights to a stable climate system. They claim the commission is abusing its power by permitting the fossil fuel industry to extract further oil and gas before protecting the health and future of its citizens.

The Colorado Supreme Court will have the final say on whether or not state oil and gas regulators must consider public health and the environment to be paramount when issuing new drilling permits.

Industry leaders have argued the Martinez’s case emphasis on health and environment would prioritize one policy at the expense of others and undo the decades-old regulatory permitting process that has led to today’s drilling of more than 55,000 active wells in Colorado.

And while the review by the Supreme Court is viewed as a step in favor of the industry, 17-year-old Martinez is optimistic.

The Supreme Court’s role in the case comes after years of legal back and forth.

The case began in November 2013 when Martinez, an indigenous climate activist and hip-hop artist, and a group of other teenagers asked that the Colorado Oil and Gas Conservation Commission not issue new permits “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.”

In May 2014, the commission denied Martinez’s request, resulting in the group appealing the decision in July 2014 to Denver District Court. The American Petroleum Institute and the Colorado Petroleum Association joined the Colorado Oil and Gas Conservation Commission on the case.

The district court in February 2016 affirmed, as the commission also did, that adopting the request would have been contrary to the commission’s authority.

But last March, the Colorado Court of Appeals sided with the teens, reversing the lower court’s decision. The ruling did not require the state to adopt the proposal, but it meant that the commission illegally rejected it.

From the Colorado Supreme Court



Case No. 17SC297, Court of Appeals Case No. 16CA564

Petitioners: Colorado Oil and Gas Conservation Commission, American Petroleum Institute, and Colorado Petroleum Association, v. Respondents: Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez; Sonora Binkley, Aerielle Deering, Trinity Carter, Jamirah DuHamel, and Emma Bray, minors appearing by and through their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray.

Petitions for Writ of Certiorari GRANTED. EN BANC.

[REFRAMED] Whether the court of appeals erred in determining that the Colorado Oil and Gas Commission misinterpreted section 34-60-102(1)(a)(I), C.R.S. as requiring a balance between oil and gas development and public health, safety, and welfare.


From Oil & Gas 360

Direction of state’s oil and gas regulator awaits high court review of Martinez decision

Martinez v. COGCC Decision Could Upend Colorado Oil & Gas Permitting

In May, the Colorado Attorney General petitioned the Colorado Supreme Court to review the appellate court’s ruling in the case of Martinez v. Colorado Oil and Gas Conservation Commission, after the appeals court overturned a lower court ruling.

The lower court ruling favored the Colorado Oil & Gas Conservation Commission (COGCC), confirming that the commission did not have to comply with the Martinez et al petition for a rulemaking.

The effect of the lower court ruling 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.

The petitioners, a group of climate activist youths, 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 (COGCC) approaches its duty to carry out the law that created it.

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, climate impact

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 COGCC Director Matthew Lepore.

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.”

Martinez v. COGCC Decision Could Upend Colorado Oil & Gas Permitting

Boulder’s Earth Guardians behind the Martinez case

The memo said the eight petitioners describe themselves as “youth, who represent the youngest living generation of public trust beneficiaries, and have a profound interest in ensuring that the climate remains stable enough to ensure their right to a livable future.” Six of the eight petitioners identified themselves as members of Earth Guardians, a Boulder, Colorado-based climate activist organization. Xiuhtezcatl Martinez, Earth Guardians youth director, is described on the Earth Guardians website as a 17-year-old “indigenous climate activist.”

The website says that Martinez has been involved with “moratoriums on fracking in his state and is currently a plaintiff in a youth-led lawsuit against the federal government for their failure to protect the atmosphere for future generations.”

Colorado AG steps in, requests that appellate court decision be reviewed by Colorado Supreme Court

The Colorado Oil and Gas Conservation Commission (COGCC) 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.

Martinez v. COGCC Decision Could Upend Colorado Oil & Gas Permitting

Adding more background in the AG’s request for a supreme court review, Coffman’s petition contains the following statement regarding the appeals court decision:

“… the court of appeals rejected the Commission’s long-settled interpretation [of its mandate as set forth by the Colorado Oil and Gas Conservation Act].

“In a published 2–1 decision, the court held that rather than balancing competing public policies, the Act prioritizes one policy at the expense of others. Under this view, the Commission is permitted to disregard the Act’s directive to foster responsible oil and gas development and enact rules that would entirely prohibit oil and gas related activity unless it can occur with zero direct or cumulative environmental impact.”

By petitioning the Colorado Supreme Court for Writ of Certiorari, Attorney General Coffman and the COGCC are asking the high court to review the appellate court ruling.

Supreme Court’s review of Martinez v. COGCC appeals court ruling could have significant impact on the oil and gas industry

If the Supreme Court either refuses to review the case, or if it does review and subsequently allows the appeals court decision to stand, the result would deliver wide-ranging consequences as to how the COGCC could permit oil and gas activity in Colorado going forward.

A Colorado Supreme Court ruling that supports the appellate court’s decision would essentially introduce a new interpretation of the COGCC’s longstanding mandate to balance responsible oil and gas development with public health, safety and welfare.

In plain language, new oil and gas development in Colorado could grind to a halt if the appellate court decision on Martinez v. COGCC stands.

What’s next in Martinez v. COGCC?

The Colorado Supreme Court is the court of last resort in the Colorado court system. According to the Colorado Supreme Court website, “An individual who has appealed to the Court of Appeals and is still dissatisfied may ask the Supreme Court to review the case. In most situations, the Supreme Court has a right to refuse to do so. In some instances, individuals can petition to the Supreme Court directly regarding a lower court’s decision.”

In the Martinez v. COGCC case, it is the COGCC that petitioned the Supreme Court directly, following the appellate court ruling that would change how it approaches the mandate it has to carry out the provisions of the Colorado Oil and Gas Conservation Act.

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