AG Coffman files first brief in defense of oil and gas industry in landmark state Supreme Court case

Xiuhtezcatl (Shoo-tez-cat) Martinez showed support for a bill to regulate the oil and gas industry during a press conference in the Capitol on Feb. 2, 2018. Photo by John Herrick

Colorado Attorney General and Republican gubernatorial candidate Cynthia Coffman this week filed an opening brief in support of the oil and gas industry in a landmark Colorado Supreme Court case, the outcome of which could have major implications for how the industry does business in Colorado.

The case, Martinez v. Colorado Oil and Gas Conservation Commission (COGCC), focuses on whether the state oil and gas regulatory agency is obliged to first and foremost consider the impact of drilling on public health.

In 2013, a group of young plaintiffs aided by attorneys for anti-fracking and environmental groups and led by 17-year-old Xiuhtezcatl Martinez, petitioned the state oil and gas regulatory agency to pass a rule prohibiting new drilling permits unless it can be scientifically demonstrated that such drilling will not harm human health or Colorado’s ecological resources or contribute to climate change. But the COGCC, which is funded largely by the oil and gas industry, declined, arguing that such a rule would undermine its dual mission: to protect health and safety, and to promote drilling.

Coffman’s brief, filed Monday, argues that the Commission was well within its rights to turn down the teenagers’ request. Noting that state agencies have “broad discretion” in the rulemaking process, Coffman said in a news release, “The Commission…could have denied the request summarily, as other state agencies have done when presented with similar rulemaking requests.”

Former COGCC Director Matt Lepore, who resigned from the agency in March for a private energy consulting gig, said in 2012 of the agency’s dual mission, “Those things have to be done in balance.” In other words, concerns about health effects or climate change, in his mind, cannot override the mandate to extract Colorado’s fossil fuels. A spokesman for the COGCC said the agency currently does not have any comments on the case.

Coffman’s brief echoes Lepore’s sentiments.

“State law creates a balance between development of Colorado’s oil and gas resources—which are tremendously important to our economy and serve as a source of reliable energy—and our other core values, including environmental protection,” she said in the news release. “As Coloradans, we should continue to engage in public debate on issues of statewide significance.” Her office did not respond to requests for further comment. Martinez was also not available for comment before publication.

Last May, the state Court of Appeals ruled that the COGCC does have a responsibility to protect human welfare and the natural environment — even if that responsibility hampers oil and gas extraction.

The COGCC mission, the Court of Appeals argued, “was not intended to require that a balancing test be applied.” Rather, it “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.”

Despite repeated calls from environmentally-minded Coloradans —  and a request from Governor John Hickenlooper — to let the decision stay, the COGCC called for an appeal of the ruling. Coffman appealed the decision on the agency’s behalf last summer. In late January, the Colorado Supreme Court agreed to hear the appeal.

Coffman is open about her support for the oil and gas industry. In February 2017, she said at a gubernatorial breakfast roundtable that nobody has “stepped up and done more on behalf of the oil and gas industry than I have as attorney general.” The industry, in turn, has contributed significantly to her campaign for governor.

The full text of the COGCC’s current mandate is available here.

Photo: Xiuhtezcatl (Shoo-tez-cat) Martinez showed support for a bill to regulate the oil and gas industry during a press conference in the Capitol on Feb. 2, 2018. (Photo by John Herrick)