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By Tripp Baltz
The Colorado Court of Appeals ruled in favor of six teenage activists who petitioned the state Oil and Gas Commission to consider a rule halting hydraulic fracturing until it can be proved the practice does not harm human health and the environment.
The ruling was the first time a higher Colorado court has said the commission has the authority to promulgate and enforce rules prioritizing public health, safety and the environment over oil and gas development, Julia Olson, attorney for the youths and executive director of Our Children’s Trust, told Bloomberg BNA March 23. The case has drawn intense interest in the oil and gas sector. ( Martinez v. Colo. Oil and Gas Conservation Cmm’n , Colo. Ct. App., No. 16CA0564, 3/23/17 ).
Recently rulings by the Colorado Supreme Court have sided with industry, including rulings in two cases on the question of whether local governments can ban fracking ( City of Fort Collins v. Colo. Oil and Gas Ass’n , Colo., No. 15-SC-668, 5/2/16 City of Longmont v. Colo. Oil and Gas Ass’n , Colo., No. 16-667, 5/2/16 ).
The appellate court said it disagreed with the commission’s conclusion that it lacked the authority to consider the petition because the state Oil and Gas Conservation Act “requires a balance between drilling and the protection of public health, safety and welfare.” It remanded the case to the commission for further proceedings.
The ruling means the commission has “full statutory authority” to adopt the youths’ proposed rule, Olson said. The court “is saying ‘don’t put oil and gas ahead of public health, safety and welfare,’” she said. “It is saying the commission is really the central entity to protect the people and the state.”
In finding the commission’s decision to reject the youth’s petition was erroneous, the appellate court focused on a section of the Colorado Oil and Gas Conservation Act, which states it is in the public interest of the state 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.”
The commission erroneously interpreted that section as requiring “a balance between oil and gas production and public health, safety, and welfare,” the court said. The commission said the youths’ petition would have required it to “readjust the balance crafted by the General Assembly under the Act,” something that was “beyond the Commission’s limited grant of statutory authority.”
The court disagreed, saying it was critical for the commission to put forward a proper interpretation of the phrase “in a manner consistent with.” That phrase does not require a balancing test, but rather “a condition that must be fulfilled,” the court said.
“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 said.
Additionally, amendments to the Act in recent years reflect “the General Assembly’s general movement away from unfettered oil and gas production and incorporation of public health, safety, and welfare as a check on that development,” the court said. The clear language of the Act “mandates that the development of oil and gas in Colorado be regulated subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources,” it said. In a dissent, Judge Laurie A. Booras said the commission has consistently recognized its duty to balance health and environmental concerns with the promotion ofoil and gas development. It has “promulgated an exhaustive set of rules and regulations ‘to prevent waste and to conserve oil and gas in the State of Colorado while protecting public health, safety, and welfare,’” she said, quoting a ruling by the Colorado Supreme Court striking down local bans on fracking ( City of Fort Collins v. Colo. Oil and Gas Ass’n , Colo., No. 15-SC-668, 5/2/16 ).
“Small wins build up to create massive change,” lead plaintiff Xiuhtezcatl Martinez, 16, said in a March 23 statement. “Our movement to fight for the rights of people and the environment is evolving.”
Tracee Bentley, executive director of the Colorado Petroleum Council, a division of the American Petroleum Institute, said in a statement the council was disappointed by the “split decision,” saying it was “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,” she said. “This sweeping decision imperils jobs, incomes, and development of natural resources in our state.” CPC and API were interveners in the case, and some 29 state agencies and interest groups were amicus curiae parties.
Todd Hartman, spokesman for the Colorado Department of Natural Resources, which houses the oil and gas commission, told Bloomberg BNA the state is reviewing the ruling.
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