By Karen Savage
The Colorado Supreme Court has agreed to hear an appeal in a case that could force the oil and gas industry to prove that new drilling and fracking in the state won’t contribute to climate change, harm the environment or endanger public health.
The appeal arises from a dispute between a group of teenagers and the Colorado Oil and Gas Conservation Commission (COGCC). The teens proposed a rule to the commission in 2013 that would require companies to prove that new drilling won’t “impair Colorado’s atmosphere, water, wildlife, and land resources, adversely impact human health and does not contribute to climate change.”
In its response to the petition, the COGCC said it did not have the authority to approve the proposal. It said much of what was proposed involved air quality and falls outside its jurisdiction. It also said “such a rule is beyond the Commission’s limited statutory authority under the Oil and Gas Conservation Act.”
The young people say the commission has the authority, but is lacking the will.
“The COGCC is violating our statutory and constitutional rights by placing profit above the health of Coloradans,” said Xiuhtezcatl Martinez, an Indigenous climate activist and hip hop artist who is one of the six who proposed the rule. He is also one of the 21 young plaintiffs in the landmark federal climate case, Juliana v. United States, which seeks to force the federal government to enact policies to protect a safe climate.
In recent years, fracking has become a contentious issue in Colorado, where the number of active oil and gas wells nearly doubled. More than 43,000 wells are currently in operation.
Citing potential health impacts and the impact drilling has on climate change, Colorado citizens have attempted to slow or stop the practice. A proposed ballot initiative would require a 2,500-foot buffer between new oil and gas development and certain buildings and public areas. The City of Boulder recently announced its intention to file suit against the fossil fuel industry for damages caused by climate change.
Joined by several environmental organizations, the teens appealed the commission’s response to the Denver District Court, whose 2016 decision sided with the COGCC and the Colorado Petroleum Institute and the American Petroleum Institute, after the trade associations joined the suit.
The teens appealed to the state court of appeals, where the COGCC argued it was required by statute to balance oil and gas development with protecting public health, the environment and wildlife resources. They are led by the same nonprofit advocacy group, Our Children’s Trust, that is leading the federal climate case.
“The climate crisis and other oil and gas dangers exist because government agencies have
illegally used balancing tests and discounting to put oil and gas development above the safety of our children,” said Julia Olson, attorney and founder of Our Children’s Trust.
The appeals court sided with the young people, ruling that the Commission erred in its interpretation of the statute and ruling that oil and gas development in the state can be approved only if it is consistent with the protection of public health, safety and the environment.
“The plain meaning of the statutory language indicates that fostering balanced, nonwasteful development is in the public interest when that development is completed subject to the protection of public health, safety, and welfare,” the court wrote, but did not address the merits of the proposed rule.
Despite objections by Colorado Governor Hickenlooper, state Attorney General Cynthia Coffman subsequently petitioned the Colorado Supreme Court on behalf of COGCC. On Monday, the Supreme Court announced it would hear the case.
“We appreciate the Court’s decision to hear this appeal, and provide the necessary legal clarity on this important issue that has the potential to affect numerous state agencies, said Coffman in an emailed statement. “We look forward to having the opportunity to present this case to the Court.”
Olson said the General Assembly was wise to require the Oil and Gas Commission to
prioritize public health and safety.
“We hope the Colorado Supreme Court will affirm the well-reasoned decision of the Court of Appeals so that the safety of young people and future generations of Coloradans will always come first over the profits of oil and gas interests,” Olson said in a statement.
Briefs by both sides are expected to be filed in the coming months.