How Colorado’s Democratic candidates for governor would handle this important oil-and-gas court ruling

Gov. Hickenlooper will decide by May 18 whether his Oil and Gas Conservation Commission will appeal a court decision saying the COGCC must give more weight to health and safety than to development.

How Colorado’s Democratic candidates for governor would handle this important oil-and-gas court ruling

Colorado Democratic Gov. John Hickenlooper, who leaves office next year because of term limits, said he will decide by May 18 whether to appeal a state Court of Appeals ruling against the Colorado Oil and Gas Conservation Commission.

The case, one that could dramatically change the way the state regulates the industry, stems from a 2013 lawsuit brought by 16-year-old Boulder hip-hop artist Xiuhtezcatl Martinez and a handful of other youth environmentalists. Specifically they petitioned the COGCC to withhold new permits for drilling in Colorado, “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.”

The COGCC was created by lawmakers more than a decade ago to regulate Colorado’s booming oil and gas industry. The agency’s mission and values statement describes a balancing of public health, economic, and oil and gas industry interests. “We are as committed to protecting public health and the environment as we are to fostering the responsible development of Colorado’s oil and gas resources,” the statement reads in part.

The nine-member commission appointed by the governor balked at the teenagers’ petition, so the youth took their case to court. Denver’s District Court sided with the COGCC’s interpretation of its mission, and the teenagers appealed again— this time to state Court of Appeals. In late March, the Appeals Court, ruling 3-2, overturned the lower court’s decision.

Justices for the Court of Appeals looked at how lawmakers have amended the state’s Oil and Gas Conservation Act over the years and found the amendments “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.”

More from the ruling:

This understanding supports our conclusion that the Act was not intended to require that a balancing test be applied when agencies charged with carrying out and enforcing the intent behind the Act, like the Commission, make decisions on regulation, including a decision denying a petition for a proposed rule. Rather, the clear language of the Act — supported by the Act’s legislative evolution and the Commission’s own enforcement criteria — 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.

Members of the Colorado Oil and Gas Commission discussed how they would respond to the ruling during a May 1 meeting, according to a published agenda. “At this time, the Commission is still deciding whether to pursue an appeal to the Colorado Supreme Court,” reads a May 1 COGCC staff report.

Asked by The Colorado Independent this week if Hickenlooper has the sole authority to decide whether or not to appeal, Hickenlooper said he was reviewing the court’s ruling and would have a decision by May 18. On Monday, May 15, Conservation Colorado and Earthjustice, two prominent environmental groups in the state, urged the governor not to appeal the case. The following day, dozens of state and local elected officials in the state signed onto a letter urging the same.

The pending decision looms large in the wake of revelations that a home explosion that killed two men in Firestone in April was caused by an abandoned, but still active gas well flowline that had been severed near the home’s foundation. The governor has called the accident a tragic, “freak occurrence,” and ordered operators to inspect all flowlines within 1,000 feet of homes. During the legislative session that just wrapped up Wednesday, a bill sponsored by Democrats that would have called for mapping of all lines from oil and gas operations failed.

While the governor weighs his decision, The Colorado Independent asked four big-name Democrats running for his job how they would decide on the appeal if they were currently in office.

Only former State Treasurer Cary Kennedy said explicitly that she would not appeal. “Public health and safety must be our top priority,” she added.

Former Sen. Mike Johnston indicated he agrees with the Appeals Court ruling. “I don’t see why anyone would fight the state’s commitment to ensure that public safety,” he said.

Congressman Ed Perlmutter didn’t say whether he would appeal or not, and in a statement said: “It is important that the priority of the state is the environment and health of the people.”

Likewise, businessman Noel Ginsburg did not speak to an appeal, but said regulations should be “clear.”

Below are their full statements on the issue:

“Public health and safety must be our top priority. We can and must do more to protect public health and our communities. Given the information that is publicly available I don’t believe appealing the court’s ruling is consistent with that priority. This is an important industry to Colorado and I’m confident together we can do more to improve safety for workers and communities and protect public health and safety. This court ruling presents an opportunity to address the conflicting mission of the oil and gas commission and clarify the priority is public health and safety.” — Cary Kennedy

“These student leaders have made the important point that seems so clear in light of the Firestone catastrophe: Our first responsibility is to protect the health and safety of all Coloradans and then balance the reasonable extraction of our state’s natural resources against that public safety. The appellate court made clear that is the plain language of the statute, and I don’t see why anyone would fight the state’s commitment to ensure that public safety.” — Mike Johnston

“We need to do what’s right for Colorado. We should have clear oil & gas regulations that allow for the development of our natural resources while protecting our land, air, and health. Ensuring that Colorado has those kinds of regulations will be a continuing process, and I am committed to ensuring that all voices have a seat at the table as we work together to protect public safety, preserve Colorado’s beauty for future generations, respect property rights, and promote reasonable regulations.” — Noel Ginsburg

“The proposed rule seems overly broad, but it is important that the priority of the state is the environment and health of the people.” — Ed Perlmutter

 

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About the Author

Corey Hutchins

is a journalist in Colorado, and Columbia Journalism Review's Rocky Mountain correspondent for the United States Project. Follow him on Twitter @CoreyHutchins and email him at CoreyHutchins [at] gmail [dot] com.

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