A group of frustrated Broomfield residents is asking the state court to halt oil and gas drilling in Colorado until state regulators update their rules for issuing permits.
Wildgrass Oil and Gas Committee, a group representing residents in Broomfield, filed a lawsuit in Denver District Court Tuesday arguing that the Colorado Oil and Gas Conservation Commission is issuing permits based on outdated rules rather than a new law. This, the group says, violates due process protections in the U.S. Constitution.
For that reason, permitting must be put on hold, argued Joe Salazar, a former state representative who is representing the residents.
“The constitutional law on this is very clear. I’m really sick and tired of the hubris,” Salazar said during a news conference at the state Capitol Wednesday.
Senate Bill 181, which was signed into law in April, changed the mission of the commission to give more consideration to public health, safety, welfare and the environment when deciding whether to issue permits for drilling. Before the law, the mission of the commission was to “foster” development.
The COGCC has been working to update its permit rules to reflect the changes required under the law. But the process is expected to take until the summer of 2020. And, until then, the state continues to issue permits for drillers — 1,853 so far in 2019. Of those, 1,076 were approved before Senate Bill 181 became law and 777 after.
Since late January, regulators have issued over 1,100 drilling permits within a Front Range area already suffering from poor air quality, an analysis by The Colorado Independent found.
Adams County is among the local governments to put in place a moratorium on drilling until new rules are written. The lawsuit essentially seeks to do the same statewide.
“Regarding the claim that the Commission must cease all permitting until rules are promulgated, it has repeatedly been stated publicly that the Commission will continue to conduct its business under SB 19-181 while the Commission conducts rulemaking,” said Megan Castle, the communications director with the COGCC.
A spokesperson for Gov. Jared Polis said he does not comment on pending litigation.
The lawsuit comes after Extraction Oil and Gas, a publicly traded company based in Denver, applied for a spacing unit permit in Broomfield. Such permits determine where a well is located and how mineral rights owners in the area are compensated.
Wildgrass Oil and Gas Committee sought additional information and clarity from the commission on how it considered various provisions in Senate Bill 181 during the permit review process, including impact on public health, safety, welfare, environment, and wildlife resources as well as cumulative health impacts, methane emissions, and assurance from Extraction that it has the money to pay for the clean up of its well sites.
According to the lawsuit, a hearing officer said the permits are being considered under “old regulations” with the “gloss” of Senate Bill 181. The group says its request for additional records related to the commission’s deliberations was denied.
Because it’s unclear whether regulators are implementing the new law, the lawsuit says, the state should pause “permitting in this case and in all cases involving permitting of any drilling, pooling, and spacing units until COGCC rulemaking is completed.”
Since taking the helm of the COGCC in January, Robbins has drafted a set of “objective criteria” used to assess permits with the mission of Senate Bill 181 in mind. The goal of these criteria was to continue issuing permits in a way that reflected the law’s new mandate while the rules were being drafted.
But the lawsuit alleges these criteria are insufficient. For example, there is no criterion regarding the cumulative health impacts of living near a well, which Senate Bill 181 requires the commission to consider.
That lawsuit is the latest episode in a series of escalating skirmishes between the administration and environmental advocates since Senate Bill 181 was passed. When signing the bill, Polis proclaimed an end to the “oil and gas wars.”
But the battles that for years played out at the ballot box and in the state legislature have now shifted to the COGCC hearing rooms. Through the summer, protesters have shut down hearings, wearing T-shirts displaying an F in reference to the region’s failing air quality grade by the American Lung Association.
Meanwhile, the administration is feeling pressure from drillers to approve more permits. The commission began the year with a 6,000-permit backlog. Many of these permit requests came in the last few months of 2018 before a vote on a setback ballot initiative, known as Proposition 112, and the election of Polis, who came into office with a record of having pushed for greater regulation of the industry.
The commission is also bogged down in the Senate Bill 181 rulemaking process. The scope of that work is broad. The rulemaking aims to write new regulations for flowlines, abandoned wells, the cumulative health impacts of emissions, the siting of drilling rigs, the structural safety of wellbores, worker safety and more.
Drilling permit approvals this year are down about 14% from last year. But Wildgrass Oil and Gas Committee is advocating for a total time out.
In response to The Colorado Independent’s previous analysis of ongoing drilling in the Front Range nonattainment area — a region long out of compliance with federal limits on ozone — Megan Castle, the COGCC’s communications director, said that Senate Bill 181 “did not tell the COGCC to stop, have a moratorium or ban oil and gas development, nor did it give operators and industry a free pass on permits.”
This is the first lawsuit filed against the Polis administration by environmental groups.
Said Salazar: “This is going to be a situation where the rubber meets the road for the administration on their environmental stance.”