Asserting that Colorado’s governor doesn’t have the authority to overrule a decision made by the state’s oil and gas commission, Attorney General Cynthia Coffman on Thursday appealed a lower court ruling that could effectively shut down drilling in the state despite Gov. John Hickenlooper’s request this week for her office to stand down.
The controversy surrounding the case — Martinez v. Colorado Oil and Gas Conservation Commission — pits Colorado’s Republican attorney general and the commission against the state’s Democratic governor and a raft of environmental groups and local officials, who asked Hickenlooper not to file an appeal by Thursday’s deadline.
At issue is whether the commission — its members are appointed by the governor but it operates independently — should be required to prioritize concerns about public health and the environment over its sometimes conflicting mission to encourage oil and gas development across the state.
The commission voted unanimously earlier this month to appeal the case to the Colorado Supreme Court, but on Thursday the governor’s office said he disagreed and had asked the attorney general to abandon the appeal. The same day, Coffman said she was going ahead.
“Today my office filed an appeal to the Martinez decision,” Coffman said Thursday in a statement. “The Colorado Oil & Gas Conservation Commission unanimously voted to defend its legal position in court, and I agree that the Colorado Supreme Court should review the case due to its legal significance. My office will continue to move forward with the case by seeking Supreme Court review.”
The governor said in a statement his office had asked the attorney general not to appeal the case, acknowledging that the attorney general had reached a different conclusion regarding statutory authority to initiate an appeal.
“While we understand and respect the commission’s desire for further clarity from the Supreme Court, we believe the court of appeals’ decision does not represent a significant departure from the commission’s current approach,” Hickenlooper said. “The commission already elevates public health and environmental concerns when considering regulating oil and gas operations.”
Even though the case is pending in the wake of a deadly house explosion in Firestone caused by abandoned drilling equipment, Coffman maintained that her decision isn’t meant to back a particular energy policy but to clarify the rules surrounding the state’s ability to set policy.
“I understand that sentiment runs high surrounding oil and gas development in our State, even more so in the wake of the tragic house explosion that claimed two lives,” she said. “This appeal is not intended to be a statement on complex energy policy issues. Rather it is a legal challenge to a court decision that stands to have a profound effect on regulation and administrative decision making by government entities.”
The case stems from a request by young activists in November 2013 that the commission “take immediate and extraordinary action” to adopt a rule halting all oil and gas production until an outside party could determine the activity could be conducted without “impair[ing] Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change.”
When the commission rejected the request, the group sued. A Denver District Court judge sided with the state, ruling that the commission’s governing statute required it to strike a balance “between the development of oil and gas resources and protecting public health, the environment, and wildlife.”
But a 2-1 Court of Appeals ruling issued on March 23 reversed the decision, holding that the Oil and Gas Conservation Act didn’t require the commission to achieve a “balancing act” between competing directives but to prioritize public health and the environment over all other objectives. The governing law, the majority wrote, “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.”
In the appeal filed Thursday representing the commission, the attorney general argues that the appeals court ruling could bring a halt to fossil fuel production in Colorado.
“Under this view, the Commission is permitted to disregard the Act’s directive to foster responsible oil and gas development and enact rules that would entirely prohibit oil and gas- related activity unless it can occur with zero direct or cumulative environmental impact,” the state says..
Coffman argued that it’s critical to put the question to the state’s highest court.
“In Martinez,” Coffman said in her statement, “a group of litigants has called into question an interpretation of the law that has governed the Commission’s functions for nearly 25 years. Whether the Colorado Supreme Court agrees or disagrees with that interpretation, the case should be heard and decided by our highest court to ensure consistency with its own case law and to confirm that the law, as enacted and intended by the General Assembly, is given effect.”