State appellate court rules oil, gas commission errs in trying to find balance between development and public safety
March 25, 2017
Plaintiff, 16, speaks out
Xiuhtezcatl Martinez, a 16-year-old plaintiff and youth director of Earth Guardians, said in a statement: “Our movement to fight for the rights of people and our environment is evolving. From the streets to the courtroom, the voices of the younger generation will be heard, and the legal system is a tool for our resistance. Small wins build up to create massive change. I’m very optimistic about the potential this lawsuit has to protect my Colorado. Now more than ever, we will see people reclaiming the power.”
The Colorado Court of Appeals on Thursday dealt a bit of a blow to the state's oil and gas regulation arm, siding with some Colorado children who sued the agency two years ago in their quest to create a rule halting all new oil and gas development in the state until it could be proven safe.
Six youth representing the Boulder-based group Earth Guardians had sought a rule-making from the Colorado Oil and Gas Conservation Commission in 2013. The COGCC rejected it because it stated it didn't have the authority under its mandate in the state, which required them to balance the needs of development and public safety. The six plaintiffs in the case are Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray.
The children appealed, and the court sided with them Thursday in a 2-1 decision.
"We … conclude that the commission erred in interpreting (their legislative mandate) as requiring a balance … " the court ruled. "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 ruling doesn't automatically mean the children will get their wish, however. They can resubmit their request to the commission, which is not bound by the appellate court ruling to create a new rule. It simply means the commission cannot reject their request because they don't have the authority to, said Dave Neslin, the former director of the Colorado Oil and Gas Conservation Commission, and a practicing attorney in Denver.
"The other issue that this raises is what does protection of public health, safety and welfare mean in this context?" Neslin said. "… I suspect all the oil and gas commission staff and commissioners believe they are already protecting the public health, safety and welfare, and can point to hundreds of pages of regulations, policies and instructions that require specific actions to protect public health, safety and welfare. Another reading of this would be that it doesn't really require much more than what the commission is already doing."
Neslin said he would expect the COGCC to appeal the ruling to the Colorado Supreme Court.
Julia Olson, attorney and executive director of Our Children's Trust, which is backing the lawsuit, issued the following statement Thursday: "By its decision today, the court has concluded that the Commission has full statutory authority to adopt Petitioner's proposed rule. The Commission can no longer decide to prioritize oil and gas development over the health and safety of Coloradans. This is an enormous victory for these youth. We look forward to helping the youth of Colorado go back before the commission on remand."
Tracee Bentley, executive director of the Colorado Petroleum Council, issued the following statement: "We are disappointed with today's split decision, which we believe is without sound legal basis. 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 natural resources in our state."
The commission issued a written statement Thursday, stating it disagreed with the decision, but agreed with Neslin that the ruling says nothing of the merit of the children's requests.
"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," the statement read. "We are evaluating whether to appeal this decision to the Colorado Supreme Court."