Mountain States

Decision in Martinez Case Imminent, Could Greatly Impact Colorado’s Oil and Gas Industry

The Colorado Supreme Court is expected to release its final decision on the Martinez vs. Colorado Oil and Gas Conservation Commission (COGCC) case, which could have far reaching effects on the state’s oil and gas industry.

The Denver Post is reporting that the ruling will be made public Monday.  There’s not a clear indication of which way the decision may go, but what is clear is the potential impact it may have on the state and industry.

It all started back in 2013 when youth activist Xiuhtezcatl Martinez and several other teenagers filed the lawsuit, backed by the lawyers at Our Children’s Trust (OCT).  OCT is funded and backed by deep-pocketed anti-fossil fuel foundations and has legal action brewing in all 50 states similar to Martinez vs. COGCC.  Their goal is to ban or suppress fracking and fossil fuel development wherever they can.

The plaintiffs sued the COGCC after the agency denied their request to pause all oil and gas development “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.”

Currently, Colorado statute delineates a balancing test between the development of oil and gas and protection of health and safety.  The plaintiffs claim that the law doesn’t actually call for balance.

Shifting from a balance toward an exclusive focus on health and safety could mean the law will be interpreted more expansively to effectively shut down oil and gas production in the state that already has many regulations to mitigate health and safety concerns.  Imagine if activists were in charge of determining what an “adverse” effect is? And with a new framework, couldn’t any and all permits be challenged on the grounds of a possible “adverse” effect—real or imaginary?

The plaintiffs lost the first court battle, but got a favorable 2-1 ruling by the Colorado Court of Appeals. Afterward, then- Attorney General Cynthia Coffman appealed and asked the Supreme Court to hear the case, which it did in October.

During last year’s state legislative session, then-State Rep. Joe Salazar introduced a bill that would have codified the Court of Appeals decision.  Proponents of the bill cited half-baked studies to suggest concerns about health impacts.  Energy In Depth published an op-ed in the Denver Post explaining how these oft-cited studies are misleading and how Colorado’s own regulators and experts have called most of these studies “low quality.”  Ultimately, the bill died in committee by a bipartisan 8-3 vote.

Colorado’s newly elected governor Jared Polis said at the time that he supported Salazar’s bill and the Court of Appeals ruling at a rally last year.

“[O]f course I support the Martinez decision that says health and safety should be the primary concern for the COGCC [Colorado Oil and Gas Conservation Commission] in siting oil and gas. They need, and they are, operationalizing the Martinez decision. If the legislature wants to put that in statute, I would certainly sign that as well,” Polis said.

Voices from all over Colorado have spoken out against Salazar’s bill and the Martinez lawsuit.  An editorial in the Colorado Springs Gazette called the plaintiff’s position “unreasonable.”

“What the students asked for in their petition is beyond unreasonable. …  If we required as much of all other human activities, the state would need to forbid marijuana cultivation and consumption, farming, bicycling and most other forms of transportation. All human activity has a cumulative effect on the environment.”

Boulder District Attorney Stan Garnett, a Democrat, said that not appealing the Court of Appeals decision would be a “mistake.”

“I am 100% pro-environment and as concerned about fracking as anyone. But as a lawyer who has practiced for 35 years and appeared many times in the Colorado Appellate courts, I think it is a mistake not to seek Colorado Supreme Court review of the court of appeals decision in the Martinez v. COGC[C] case and the pressure being put on the Governor in that regard is misdirected. A court of appeals opinion is of some value as precedent, but not nearly as valuable as a Colorado Supreme Court Opinion. We have a good supreme court who may well uphold the Court of Appeals. Moreover, the Supreme Court will address this issue eventually one way or another and this looks like a pretty good record to present to them. Political pressure with regard to court opinions and decisions is rarely a good idea and would be much better focused at electing a legislature more inclined to listen to the public’s concerns.”

When asked by the Colorado Independent, Democratic U.S. Representative Ed Perlmutter said, “The proposed rule seems overly broad.”

After five years, the Colorado Supreme Court will seal the fate of the COGCC’s mandate and scope. Let’s hope it doesn’t hand over the reins to the activists.

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