Colorado oil and gas regulation: is the State’s task to balance oil & gas development with public health, safety and welfare?
Colorado’s high court will soon hear oral arguments in a case whose outcome could reshuffle the criteria the COGCC must use in granting permits to drill oil and gas wells
Fall of 2018 will be remembered as the season of considerable uncertainty, at least for the Colorado oil and gas industry. Two events loom large. Depending on the outcomes, either one could seriously affect drilling activity going forward in Colorado.
Up next: Martinez case – oral arguments to be heard by the Colorado Supreme Court on Oct. 16
The Colorado Supreme Court will soon begin the next phase of proceedings on the Martinez case. The Colorado high court has set the date on which it will hear oral arguments as October 16, 2018, at 1:30 p.m. Mountain Time. Exactly three weeks prior to election day.
“Oral arguments are currently set for Oct. 16 at 1:30 p.m.,” the Supreme Court clerk confirmed with Oil & Gas 360® on Tuesday. The clerk reported that the arguments last one hour, total—each side gets 30 minutes.
Live-streamed
The oral arguments for case number 17SC297 are scheduled to be live-streamed at 1:30 MT, Tuesday Oct. 16, 2018 on the CSC website.
The official notice, which is found in a long document for case announcements on the Colorado Supreme Court website, reads as follows:
GRANTED PETITIONS FOR WRIT OF CERTIORARI – 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.
Case background
The beginning of the Martinez v. COGCC case dates back almost five years, 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 Colorado Oil and Gas Conservation Commission (COGCC) to impose a rulemaking that would essentially prohibit permitting of oil & gas activity in the state unless the COGCC could assure zero environmental or climate impact from the activity.
Our Children’s Trust
Originally, the six youth climate activists, working with a national climate organization called Our Children’s Trust, submitted to the COGCC their “Request for Adoption of a Rule” (referred to as “the Request”).
Our Children’s Trust’s mission statement says, “Our mission is to protect earth’s atmosphere and natural systems for present and future generations. We lead a game-changing legal campaign seeking systemic, science-based emissions reductions and climate recovery policy at all levels of government. We give young people, those with most at stake in the climate crisis, a voice to favorably impact their futures.”
The Request was part of the “Atmospheric Trust Litigation,” a nationwide effort organized by Our Children’s Trust. At the time, the effort had spawned rulemaking petitions in 38 states, all of which were rejected.
The number of petitions has grown. Our Children’s Trust appears to have submitted at least 46 requests for rulemaking with state agencies. According to information published on the organization’s website www.ourchildrenstrust.org, today, pending state actions exist in Alaska, Colorado, Florida, Maine, Massachusetts, New Mexico, North Carolina, Oregon and Washington.
The Martinez petition to the COGCC was recapped on April 22, 2014 in a memorandum to the COGCC commissioners from then COGCC Director Matthew Lepore. The COGCC rejected the petitioners’ proposed rulemaking on the grounds that the commission was already fulfilling its mandate as prescribed by Colorado law—the Oil and Gas Conservation Act.
At that point, 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 petition for a rulemaking.
A question of balance – it’s for the Colorado Supreme Court to decide
The effect was that COGCC would 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 Martinez petitioners and their attorneys appealed the lower court decision, taking their case to the Colorado appeals court. They 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 Colorado Oil and Gas Conservation Commission voted to take the ruling to the Colorado Supreme Court. Colorado Attorney General Cynthia Coffman officially petitioned the high court to review the appeals court reversal of the lower court.
In January the high court agreed to hear the Martinez case, opening briefs were presented April 2, 2018 and oral arguments are right around the corner.
The Colorado Supreme Court’s seven justices appointed by the governor pursuant to Colorado’s merit selection process are Chief Justice Nancy E. Rice; Justice Nathan “Ben” Coats; Justice Monica M. Márquez; Justice Brian D. Boatright; Justice William W. Hood, III; Justice Richard Gabriel; and Justice Melissa Hart.
Oral arguments will be heard by the full bench on Oct. 16.
The crux of the case decision for the justices is this: [REFRAMED BY THE COURT] 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.
[Additional background on the Martinez case is available on Oil & Gas 360®.]
Prop 112 grabbing the headlines
The Martinez case has in recent months fallen under the shadows of the more recently publicized forward march of another attack on Colorado’s oil and gas industry–ballot Proposition 112, which will appear on the Colorado ballots on Nov. 6. Prop 112 is the official ballot designation for initiative 97, the initiative seeking to increase all new drilling/fracing setbacks to 2,500 feet or larger from just about anything—occupied structures, water, dry creek beds, open space.
Its backers include climate-movement professionals whose goal is to stop the development of fossil fuels worldwide, and specifically to end drilling in Colorado. But the language is written for voters who don’t do a lot of research before marking their ballots. It tells voters that oil and gas development has health risks and asks if they want to increase the buffer zone with a 2,500 foot setback from things like homes, schools, hospitals and vulnerable areas for all new oil and gas development. To quote one random voter interviewed by Oil & Gas 360®, “Why would anybody vote ‘no’?”
Instead of calling for a ban or moratorium on drilling and fracing in the name of climate change as had been attempted in previous election cycles, for proposition 112 the backers (global anti-fossil fuel activist 350.org and Colorado Rising) avoided using those words in favor of language that emphasizes only that the measure is seeking to protect health and safety.
If only a few more voters mark “yes” than “no” for Prop 112 on their mail-in ballots or at the Colorado polls on Nov. 6, new drilling and development activity will be off limits in 85% of the state’s non-federal lands, according to a COGCC GIS study—places like the Wattenberg field in Weld County, the Piceance Basin, most of the Colorado Front Range. And as a change to existing statute referred by the citizens, the governor has no veto power over it.
The legislature could attempt to pass another bill revising the statute and send it to the governor, but how long will it take to craft a bill through the legislative process and then gather bipartisan support to undo or revise the changes resulting from Prop 112, and will the governor’s desk be occupied by lame duck sitting Gov. Hickenlooper, or a newly elected governor by either the name Polis (D) or Stapleton (R)?
Both leading candidates for Colorado’s next governor have come out strongly opposed to Proposition 112 (formerly known as initiative 97).
