Colo. Gov. John Hickenlooper (D) has until tomorrow to decide whether or not to appeal a March 2-1 court decision that would change how the state’s oil and gas regulatory agency has reviewed drilling projects for decades. The lawsuit was filed by teenage environmentalists, backed by national activist organizations, and on May 1, the nine-member Colorado Oil and Gas Conservation Commission (COGCC) voted unanimously to appeal the decision. The governor is currently reviewing the case.
The petitioners sued the COGCC after the agency denied their request to suspend approving oil and natural gas development unless it can be demonstrated that drilling “does not adversely impact human health and does not contribute to climate change.”
Here’s what you need to know about the case:
#1: Even a leading Boulder Democrat says the governor should appeal the rule.
In a Facebook post yesterday, Boulder District Attorney Stan Garnett (D), who had previously run for Colorado Attorney General, said not appealing the Court of Appeals decision would be a “mistake,” that the pressure placed on the governor on the issue is “misdirected,” and that “[p]olitical pressure with regard to court opinions and decisions is rarely a good idea” (emphasis added):
“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, U.S. Rep. and gubernatorial candidate Ed Perlmutter (D-Colo.) “didn’t say whether he would appeal or not,” but said, “The proposed rule seems overly broad.”
#2: National “ban fracking” groups are spearheading the entire effort.
The Denver Post reported earlier this week that green groups are speaking up and lobbying the governor not to appeal the decision – but, as Energy In Depth covered weeks ago, these groups have been driving the lawsuit from the very beginning.
Although reporters have described the petitioners in the case, aged 13 to 16, as “a group of teenagers,” “six underage plaintiffs,” “some Colorado children,” the real parties involved are national “ban fracking” groups, like 350 Colorado, Sierra Club, Earthworks, Food & Water Watch (F&WW), and F&WW-affiliate Frack Free Colorado, that have a track record of using children to get press and lobby the state legislature – and are now pushing this lawsuit after failing spectacularly in previous legal challenges or their efforts to put anti-fracking measures on the ballot.
In fact, the attorneys arguing the case are not only the same attorneys used by big national green groups, but some even have a history of pushing the “ban fracking” agenda in the state and using children in lawsuits:
Dan Leftwich has built his practice supporting extreme “ban fracking” activists in the state, advising Sierra Club and Sierra Club-affiliate Frack Free Boulder, arguing that fracking “threatens our lives and liberties,” and speaking at anti-fracking rallies. Leftwich also represents Be the Change, a political group that has compared the oil and gas industry to slavery and industry supporters to Nazis, and is an associate of self-styled “Fractivist” Shane Davis, who has encouraged the anti-fracking campaign to draw inspiration from “revolutionary humanitarian” Che Guevara, the Argentine Marxist guerrilla leader who figured prominently in the communist overthrow of Cuba.
Fellow attorney Julia Olson founded Our Children’s Trust, which partners with Greenpeace and Sierra Club, based on “[t]he idea of having children front the campaign” against climate change and “the idea of signing up multiple children to be plaintiffs in the various lawsuits,” according to E&E News.
#3: The Appeals decision did not hand green groups the victory they claimed.
Although a teenage petitioner told the press, “We won,” and environmental activists have called the ruling a “decisive legal victory,” the decision “does not mean the COGCC now must adopt the teenagers’ proposal to restrict new drilling,” the Denver Post has explained. It merely means that the COGCC has to reconsider the proposal.
In the dissenting opinion, Judge Laurie Booras wrote that the COGCC had “consistently recognized” its duty to balance the responsible development of oil and natural gas with the protection of health, safety, and the environment:
“The Commission has consistently recognized its duty to balance health and environmental concerns with the promotion of oil and gas development.”
The Grand Junction Daily Sentinel reported yesterday that “it’s not clear” to former COGCC Director David Neslin that the Appeals decision, if not appealed, “would be particularly consequential”:
“David Neslin, an attorney and former director of the commission, said it’s not clear to him that it would be particularly consequential if the state doesn’t appeal.
“‘When I was the director in my view we prioritized the protection of public health and safety and the environment and that’s why we comprehensively updated the state’s regulations and adopted the hydraulic fracturing and took a number of other actions,’ he said.
“Since he left the agency, it has been if anything even more active in adopting rules and policies and guidance to protect the environment, Neslin said.
“‘So it’s not clear to me that if the court of appeals decision were to remain in force, that that would lead to any change in the way that the commission conducts its business,’ he said.”
#4: Leading voices in Colorado oppose the Appeals decision.
In an editorial this morning, the Colorado Springs Gazette wrote that the petitioners’ request is “beyond 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. …
“Hickenlooper understands the importance of energy and the jobs provided by oil and gas production. We trust that he will consult with his best legal advisers and determine a course of action that protects this vital industry.”
When the Court of Appeals issued its ruling in March, Grand Junction Sentinel interviewed Neslin and reported that he “suspects the state will appeal to the Colorado Supreme Court, and that court may reach a different conclusion than the appeals court did.”
Neslin called the decision “ironic,” considering the many environmental safeguards the agency had put into place over the past decade:
“The many hundreds of pages of regulations, policies, and guidance that the agency has issued during the past decade tangibly demonstrate the importance that it has placed on environmental protection.”
#5: Prominent industry leaders question the legal basis of the Appeals decision.
Tracee Bentley of the Colorado Petroleum Council, which intervened in the case, said the decision “threatens the state’s economy, property rights, jobs, and state revenue” and lacked “sound legal basis”:
“The governor would be well-supported in standing up against blatant efforts – that are without, we believe, sound legal basis – that threaten the state’s economy, property rights, jobs, and state revenue.
“In Colorado, the Oil and Gas Conservation Act was enacted to ‘foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources,’ to ‘protect the public and private interests against waste,’ and to ‘enforce the coequal and correlative rights of owners.’”
Dan Haley, president and CEO of the Colorado Oil and Gas Association, said the Appeals ruling “disrupts decades of regulatory precedent”:
“We believe the state should appeal this decision to the Colorado Supreme Court. Through the Colorado Oil and Gas Act, the law directs the Colorado Oil and Gas Conservation Commission (COGCC) to balance a variety of development interests, including the environment. …
“The Appeals Court ruling disregards decades of precedent in utilizing the balance test described in statute. The COGCC, which voted unanimously to appeal this decision, has employed this balancing act on numerous occasions as evidenced by Colorado’s comprehensive regulations, which are among the most stringent in that nation.”