Gov. John Hickenlooper is on a collision course with Republican Attorney General Cynthia Coffman over an appeal of a Colorado Court of Appeals decision emphasizing health and safety in permitting drilling.
The Democratic governor chose not to recommend an appeal in the case, while Coffman is moving forward with an appeal, despite the governor’s decision.
“We notified the Attorney General that we did not want to pursue an appeal of the Martinez case. We believe that the statute governing the commission’s powers does not include the authority to initiate an appeal in this case,” read a statement from the governor’s office.
“However, the Attorney General reached a different legal conclusion. 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. The commission already elevates public health and environmental concerns when considering regulating oil and gas operations.”
The Republican attorney general received pressure from the oil and gas industry and business interests to appeal the case.
“This case has serious implications across the economy, not just the energy sector, and it deserves to be heard by the state’s highest court,” said Loren Furman, with the Colorado Association of Commerce and Industry. “The members of the COGCC unanimously called for an appeal and their recommendation should be honored.”
Without the appeal, state oil and gas regulators would take another look at a request from a group of teenagers backed by high-profile environmental groups to suspend fracking until drillers can prove it is safe.
The back-and-forth over the case comes at a politically charged time for the oil and gas industry. A recent home explosion in Firestone linked to natural gas leaking from an old pipeline spurred debates in the legislature, as well as renewed talks of ballot initiatives.
But Coffman said in a statement that despite the emotions surrounding the case, legal clarification is necessary.
“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,” Coffman said.
The initial 2013 case involved Xiuhtezcatl Martinez of Boulder and other teenagers, who asked state regulators to adopt regulations stating that drilling permits could not be issued without a finding that operations would not impact Colorado’s air, water and wildlife and that public health would be protected.
The Colorado Oil and Gas Conservation Commission, which oversees regulations of the oil and gas industry in Colorado, denied the request, arguing that it lacked the authority.
The COGCC’s mission has been set by the legislature to foster “responsible, balanced” energy development “in a manner consistent with public health, safety, and environmental and wildlife impacts.”
The appeals court ruling said, “Critical here is the proper interpretation of the phrase ‘in a manner consistent with.’ We agree with Petitioners that ‘in a manner consistent with’ does not indicate a balancing test but rather a condition that must be fulfilled.”
In the 2013 request, the group of teenagers asked the state to deny drilling permits “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 in 2014 denied the request following a hearing. The proposal has drawn opposition from powerful oil and gas industry interests, as well as the state.
The group of teenagers – with help from attorneys that represent environmental groups – took the case to Denver District Court, which sided with the state. The case was appealed, with attorneys arguing that the lower court misinterpreted the mission of the COGCC.
In March, the three-judge appellate panel said the COGCC’s mission “was not intended to require that a balancing test be applied.”
“The clear language … 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,” the appellate court wrote.
The COGCC board voted unanimously to recommend an appeal. With the governor declining to push for an appeal to the Colorado Supreme Court, the oil and gas industry and business interests asked Attorney General Coffman to take action.
Environmental groups this week pushed the governor – who has often been criticized as a former geologist for being too cozy with the industry – not to appeal the decision. Those groups were dismayed that Coffman would move forward with an appeal.
“We are pleased that the governor doesn’t see merit in appealing this case, but it is essential that he do everything in his power to ensure that his commission follow his legal lead and make it clear to the Attorney General that this case should not be appealed,” said Pete Maysmith, executive director of Conservation Colorado
But even left-leaning Boulder County District Attorney Stan Garnett said an appeal to the Colorado Supreme Court would be prudent. In a Facebook post he stated: “I am 100% pro environment and as concerned about fracking as anyone. But as a lawyer who has practiced for 35 years and appeared many times in the Colorado Appellate courts, I think it is a mistake not to seek Colorado Supreme Court review of the court of appeals decision in the Martinez v. COGC[C] case and the pressure being put on the Governor in that regard is misdirected.
“A court of appeals opinion is of some value as precedent, but not nearly as valuable as a Colorado Supreme Court Opinion. We have a good supreme court who may well uphold the Court of Appeals. Moreover, the Supreme Court will address this issue eventually one way or another and this looks like a pretty good record to present to them. Political pressure with regard to court opinions and decisions is rarely a good idea and would be much better focused at electing a legislature more inclined to listen to the public’s concerns.”