Environmental groups are encouraging the governor not to appeal a Colorado Court of Appeals decision emphasizing health and safety in permitting drilling.
Gov. John Hickenlooper, a Democrat and former geologist, has until Thursday to decide whether to appeal the case, which could require state oil and gas regulators to take another look at a request to suspend fracking until drillers can prove it is safe.
The requests from environmental groups 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.
Environmental groups have delivered letters to the governor urging him not to appeal the case. More than 1,500 residents, 39 local elected officials and community leaders, and 13 state lawmakers signed onto the letters. Hickenlooper has often found himself at odds with anti-industry activists who believe the governor is too cozy with the industry.
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 took the case to Denver District Court, which sided with the state. The case was appealed, with the teenagers 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.
If the case is not appealed, then the proposal would go back to the COGCC to reconsider the petition. Hickenlooper’s administration can appeal to the Colorado Supreme Court by Thursday.
“We are aware of the requests from interested parties and are taking the time to give this case a thorough review,” said a spokeswoman for Hickenlooper on Tuesday.
The Colorado Oil and Gas Association said the appellate court ruling “disrupts decades of regulatory precedent.”
“We believe the state should appeal this decision to the Colorado Supreme Court. Through the Colorado Oil and Gas Act, the law directs the Colorado Oil and Gas Conservation Commission (COGCC) to balance a variety of development interests, including the environment,” said Dan Haley, president and chief executive of the Colorado Oil and Gas Association.
“The Appeals Court ruling disregards decades of precedent in utilizing the balance test described in statute. The COGCC, which voted unanimously to appeal this decision, has employed this balancing act on numerous occasions as evidenced by Colorado’s comprehensive regulations, which are among the most stringent in that nation.”
The association pointed out that Colorado was the first state in the nation to disclose the chemicals in hydraulic fracturing, and to require pre- and post-drilling groundwater monitoring.
The conversation intensified after the recent event in Firestone, where a home that sits 178 feet from a well exploded, killing two men. The bodies of brothers-in-law Mark Martinez and Joey Irwin, both 42, were discovered in the basement one day after the explosion. Martinez’s wife, Erin, was seriously injured.
Following the incident, Hickenlooper ordered a review of existing oil and gas operations. He also expressed interest in developing a database of older existing gas lines.
Lawmakers this year discussed setback legislation, in which wells would have been further setback from schools by mapping the distance from school property lines. After the Firestone explosion other efforts were discussed to map gas lines. The proposals died over industry and Republican objections.
“Several bills that would have done a better job of protecting Colorado communities from oil and gas failed in the state Senate during this past legislative session,” said Pete Maysmith, executive director of Conservation Colorado. “Now, it’s up to the governor to take this opportunity to protect public health and the environment and do all that he can to prevent tragedies like Firestone.”
“All the Martinez decision says is that Colorado must protect public health, safety, and the environment when approving oil and gas development,” said Mike Freeman, an attorney with Earthjustice. “But the Colorado Oil and Gas Conservation Commission has been telling Coloradans for years that it already does that. If the COGCC has been meeting its obligations to protect Coloradans, the State should have no objection to the court’s ruling.”