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The Colorado Supreme Court announced this week it has decided to take up a case brought by a group of teenagers that sued the state’s oil and gas regulatory agency and would alter the state’s relationship with energy development.
The so-called Martinez case, brought by Xiuhtezcatl Martinez and a half-dozen other young people and sponsored by Our Children’s Trust, alleges that the Colorado Oil and Gas Conservation Commission (COGCC) did not sufficiently consider public health and safety over “balancing” those concerns with oil and gas permitting.
In March 2017, a 2-1 decision from the state appeals court said COGCC must consider how drilling activities “adversely impact human health” or “contribute to climate change” before the agency may issue a drilling permit.
“[T]he Act 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, including protection of the environment and wildlife resources,” the appeals court said.
The Colorado Supreme Court said it would determine “[w]hether 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,” the court said Monday.
Mark Mathews, an attorney for Brownstein Hyatt Farber Schreck, and the Colorado Oil and Gas Association’s (COGA) outside regulatory and litigation counsel, told Western Wire that the way the state’s oil and gas regulator interprets statute is at the center of the appeal and a strong reason for the state’s highest court to consider the case.
“They obviously recognize it’s an important decision and an important issue. It was a 2-1 decision with a forceful dissent,” Mathews said.
“Agency decisions are given a great deal of discretion and an agency determination or interpretation of a statute or regulation is overturned by a court only if it’s a completely unreasonable interpretation,” Mathews explained.
COGA’s President and CEO, Dan Haley, said the 2017 decision “ignored decades of regulatory precedent.”
“[W]e are glad to see the Colorado Supreme Court accept this important case,” said Haley in a statement. “Through the Colorado Oil and Gas Conservation Act, current law directs the Colorado Oil and Gas Conservation Commission (COGCC) to balance a variety of development interests, including the environment.”
Haley defended the agency, saying COGCC “has employed this strict balancing act on countless occasions as evidenced by Colorado’s comprehensive regulations, which are among the most stringent in that nation.”
COGCC unanimously appealed the decision, with support from the state’s Republican Attorney General, Cynthia Coffman. Gov. John Hickenlooper, a Democrat, had suggested that the case not be appealed.
“[T]he court of appeals’ decision does not represent a significant departure from the commission’s current approach. The commission already elevates public health and environmental concerns when considering regulating oil and gas operations,” Hickenlooper said last year.
Upon hearing that the Colorado Supreme Court had taken on the appeal, Hickenlooper’s office told the Denver Business Journal, “We look forward to increased clarity from the court.”
The seven young plaintiffs and members of Earth Guardians, led by Martinez, are part of a nationwide slate of “children’s” lawsuits supported by Our Children’s Trust, a legal center that has backed lawsuits and other regulatory challenges in several other states, including many in the West.
Our Children’s Trust has listed judicial actions pending in eight other states: Alaska, Colorado, Maine, Massachusetts, New Mexico, North Carolina, Pennsylvania, and Washington, with ongoing legal action and other rulemaking efforts in all 50 states.
Not all youth lawsuit or regulatory efforts have been successful.
In New Mexico, the state Environmental Improvement Board voted 4-1 in August 2017, denying a request for a hearing on a proposed rule on CO2 and greenhouse gas emissions reductions. The petition was initiated by 28 young people aged 4 to 20, with the help of the anti-fossil fuel WildEarth Guardians.
In March 2017, the Pennsylvania Supreme Court dismissed a similar youth case that had asked the state to consider “adverse impacts of climate change.”Other states, such as Maine and North Carolina, have pending regulatory petitions brought by children and teenagers under review by the state environmental commissions.
The Oregon case appeared before the 9th Circuit Court of Appeals in December 2017, with Our Children’s Trust Executive Director, Julia Olson, arguing the case. Martinez is also a plaintiff in the Oregon case.
Olson said she hoped “public health and safety” would be prioritized over “profits.”
“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,” Olson said in a statement. “The General Assembly was wise to require the Oil and Gas Commission to prioritize public health and safety.”
Olson defended the appeals court victory.
“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.
Olson’s organization is underwritten by several deep-pocketed foundations with an environmental focus Western Wire revealed, such as the Leonardo DiCaprio Foundation (LDF) and Rockefeller Brothers Fund. Other donors include more than a dozen institutional funders including the Cottonwood Foundation, Charles Engelhard Foundation, Elizabeth Lafayette Fund, Global Greengrants Fund, Jubitz Family Foundation, Libra Foundation, MRG Foundation, Northwest Fund for the Environment, Oregon Community Foundation – Evergreen Hill Fund, Patagonia, and Wallace Global Foundation.
The foundations have focused on the youth-generated lawsuits to force action on climate change.
“LDF believes in supporting innovative approaches to galvanize action on climate change. Our Children’s Trust (OCT), is taking a novel litigation approach by representing the voice of youth in a groundbreaking climate change lawsuit against the U.S. federal government. The case has achieved notable success thus far and will be heading to trial shortly. OCT hopes to secure a legally binding ruling wherein the federal government would be required to act on climate change,” LDF wrote.
As for Colorado, Mathews said, the state’s highest court would consider how courts review agency actions, the language of the conservation statute, and weighing multiple goals versus a single focus, such as environmental protection.
“Anyone who reads the Oil and Gas Conservation Act is going to realize there are indeed a number of other important provisions and that the act has multiple goals that must indeed be balanced,” Mathews said.
“Prevention of waste and protection of correlative rights in addition to the efficient production of oil and gas and environmental protection,” he suggested, would play a large role.
Mathews argued that “looking at the overall act it certainly suggests the COGCC was right in balancing and not just focusing on environmental aspects.”
Mathews told Western Wire a decision in the case before the 4th quarter of 2018 was unlikely.
