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January 14, 2019 09:32 AM UTC

BREAKING: Colorado Supremes Say Big Oil Can Poison You

  • 21 Comments
  • by: Colorado Pols

UPDATE #4: Gov. Jared Polis weighs in, and everyone seems to be on the same page:

While I’m disappointed by today’s ruling, it only highlights the need to work with the Legislature and the Colorado Oil & Gas Conservation Commission to more safely develop our state’s natural resources and protect our citizens from harm. I’ve made transitioning to renewable energy a top priority because it is the best way to protect Coloradans health and safety, reverse the harmful effects of climate change that threaten our economy and our way of life, and boost our state’s economy by creating green jobs that can never be outsourced.

—–

UPDATE #3: Conservation Colorado’s statement:

Kelly Nordini, executive director of Conservation Colorado, released the following statement:

“For too long, Coloradans asking for stronger health and safety protections have lost at the legislature, the Colorado Oil and Gas Conservation Commission, and in the courts. That needs to change.

“Today’s Martinez decision is yet another reminder that we need to tilt the balance back in favor of Coloradans’ health and safety. With a new administration in place, we look forward to working with Governor Polis, the Colorado Oil and Gas Conservation Commission, and legislative leaders to reform this broken system and put our communities first.”

—–

UPDATE #2: Statement on today’s ruling from the Colorado Senate Democratic Majority:

The Colorado Supreme Court today released its ruling on Martinez v. Colorado Oil & Gas Conservation Commission, reversing a Court of Appeals decision that state regulators must condition oil and gas development on ensuring protection of health, safety, and environment. In response, Senator Mike Foote released the following statement:

“While I am disappointed in the decision, it gives us at the legislature an opportunity to finally put health and safety first with oil and gas operations. It is well beyond time for us to protect Coloradans and our clean air and water. I am confident that my colleagues and I will come forward with legislation to do exactly that.”

Senator Mike Foote has been a champion of public health and safety when it comes to oil and gas operations in the legislature, sponsoring and cosponsoring legislation such as HB18-1352: Oil And Gas Facilities Distance From School Property. Unfortunately, many pieces of legislation that would have protected Coloradans died in the Republican-controlled Senate.

That won’t be a problem this year…

—–

UPDATE: The Colorado Sun reports:

This will hardly be the last word on oil and gas regulation in Colorado this year, though. The court’s ruling will likely motivate the Democratic-majority at the state Capitol to overhaul how oil and gas operations are permitted in Colorado…

“Communities all up and down the Front Range and on the Western Slope, they want to know that health and safety is getting a serious look,” said House Speaker KC Becker, a Boulder Democrat. “That goes for air quality, water quality, citing, smells, odors, and you know, explosions.”

“I don’t think the existing law right now — the way COGCC is implementing it — gives a strong enough consideration to those things,” Becker added. [Pols emphasis]

—–

Fracking near a high school in Greeley, Colorado.

Today the Colorado Supreme Court issued a long-awaited ruling in the landmark case of Colorado Oil and Gas Conservation Commission v. Martinez–a case brought to compel the Commission to only issue drilling permits once it has been determined that such drilling “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.”

Today’s decision reverses a lower court ruling that sided with the plaintiffs, and the oil and gas industry is celebrating–for now. Here’s the meat of the decision:

The court reaches this conclusion for three primary reasons. First, a court’s review of an administrative agency’s decision as to whether to engage in rulemaking is limited and highly deferential. Second, the Commission correctly determined that, under the applicable language of the Act, it could not properly adopt the rule proposed by Respondents. Specifically, as the Commission recognized, the pertinent provisions do not allow it to condition all new oil and gas development on a finding of no cumulative adverse impacts to public health and the environment. Rather, the provisions make clear that the Commission is required to foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers, [Pols emphasis] and in doing so, to prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, but only after taking into consideration cost-effectiveness and technical feasibility. [Pols emphasis] Finally, in declining to engage in rulemaking, the Commission reasonably relied on the facts that it was already working with the CDPHE to address the concerns underlying Respondents’ proposed rule and that other Commission priorities took precedence at this time.

Although the industry is celebrating this ruling as of this writing, the long-term consequences of this decision could be the energizing of opponents of oil and gas drilling just as the state comes under the unhindered control of Democrats. We’ll update with further legal analysis, but as we understand it the decision relies on the mission of the COGCC not just to regulate the production of oil and gas resources in Colorado, but to “foster the development” of oil and gas–a mission that under current law obliges the commission to rank public health and safety lower than the mission to promote the oil and gas industry.

All we can say is, if that’s the law, it’s law ripe for changing. Stay tuned.

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21 thoughts on “BREAKING: Colorado Supremes Say Big Oil Can Poison You”

  2. The ruling is unsurprising. The two judges in the Court of Appeals majority had to engage in some impressive contortions to support an outcome that made the Colorado Oil and Gas Conservation Act look like something other than corporate welfare for everyone's favorite welfare queens, the oil and gas industry.

    Time for the legislature to fix that abomination of a law.

  3. Together with voters crushing the 122 plan to ban drilling on 85 percent of colorado private land, this may create a possibility for some reasonable compromises that really do protect the public.  We'll see. 

    1. I hope you're right, V. O&G has a history of shouting disaster at the thought of any changes. Recall the massive rewrite of regulations a few years back. Today the industry brags about the toughest regs anywhere. They negotiate only when backed into a corner staring down a double-gauge shotgun — which is the situation today. They know that the guv and legislature are a much better bet, albeit distasteful, than repeated ballot measures designed to over-reach and shut them down.

      1. I participated in that rulemaking, Gertie. After 3 bills were passed by Ritter and the 68 blue wave, a long, laborious process of writing the actual rules in a series of interminable meetings began.

        It was an unbelievable process. As memory serves, I attended hearings and meetings for at least 32 hrs. /wk. for 5 weeks of a 7 week process. I learned a lot……and you are right.

        Negotiation to the Oily Boyz means: Sign this document giving us eternal rights to do anything we want on your land, take this token payment ($10/acre), and get the fuck out of our way. If we find something, we will let you know if we owe you anything….after you pay the expenses, of course.

        I have spent more time looking across a table at an Oily Boy (or one their hired legislators/commissioners/lobbyists…) than I can really remember. I learned how the industry works. I learned how it manipulates people and the law. I learned how dishonest it is as an industry.

        I worked in the gas patch in the early eighties. They fool a lot of people. They don't fool me. 

        I have just reviewed a document from a "seismic survey" company. The company that sent the document is a land company. Their $10/acre lease is a onetime fee giving them complete, fully assignable, access and egress to my friends' property… in perpetuity.

        They can build roads (they call pathways), move fences, fill in ditches, bulldoze hilltops, build facilities, invite sub-contractors, store equipment. All of which, you obligate forever to your assigns and successors.

        If you trust anything an oil and gas company representative tells you..that is on you.

         

         

  4. So, anyone know of states with regulatory regimes that would be better?  Somehow responsive to general community concerns without an absolute "taking" of the property holders' rights? Something which doesn't expand an unwavering universal measurement of distance that appears now to be too limited in many communities?

      1. Exactly. The law has always worked to protect mineral rights holders over surface rights holders. And those who own the surface generally invest far more of their money into that property.

    2. Make mineral rights holders responsible for any damages to land or people that occur as a result of their profit when their property is exploited by O&G.

       

      Bring bonding requirements for O&G operations more into the realm of reality of what damages can be, i.e. make the
      cost of 'walking away' more reflective of the eventual costs of restoration.

      Somehow, the age-old practice of profiting from poisoning people, land, air and/or water has to be ended.

        1. Does anyone know if Drumpf appointees running state agencies (FSA/USDA-RD) are considered essential or non-essential?  (I know the local offices are closed)

          Asking for a friend.  

      1. Every afternoon at Moddy's house at teatime.

        Do you promise to protect and defend the Constitution of the United States and of the State of Colorado?  I do, Moderatus.  More tea Governor Coffman? Why thank you, Moderatus. You are fun and cool.

    3. Right – there is a free market solution.
      If I want to buy oil or gas products with moral conscience – that ship sailed.

      Free range oil and gas?
      O&G from the surface owners?

      It's all or nothing – gotchya.

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