The Colorado Court of Appeals has recently ruled 2-1 in favor of six teenage activists who had petitioned the Colorado Oil and Gas Conservation Commission to consider a rule that places public health and environment before oil and gas development instead of seeking a ‘balance’ between resources development and people’s health.
Although the appeals court ruling can be further challenged at Colorado’s Supreme Court, it gives environmentalists and green activists a reason to rejoice in this victory and potentially a new tool in seeking to oppose fracking in Colorado, which has been a battleground state for activists and counties opposing oil and gas drilling. On the other hand, the recent appeals court decision just remands the case of the proposed rule to the Colorado Oil and Gas Conservation Commission, which now has to consider it again in light of the appeals court ruling.
The court saga began in November 2013, when the teen activists petitioned the Commission to consider a rule that it “not issue any permits for the drilling of a well for oil and gas 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.”
In April 2014, the Commission denied the petition, saying that “the Proposed Rule, if adopted, would have required the Commission to readjust the balance crafted by the General Assembly under the Act, and is therefore beyond the Commission’s limited grant of statutory authority.”
The district court later upheld the Commission’s denial of the petition, saying that the Commission lacked authority to consider such a proposal.
Now the appeals court agrees with the petitioners and says that the district court and the Commission erroneously interpreted the Oil and Gas Conservation Act. It has reversed the district court ruling and returned the petition to the Commission for further examination. The appeals court found that a section in the Act “supports the conclusion that the Commission has authority to promulgate rules regulating oil and gas development in the interest of protecting public health, safety, and welfare.”
Driving its decision, the appeals court drew the attention to the interpretation of the phrase “in a manner consistent with” in the Act’s wording that rules should “foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.”
The appeals court agreed with petitioners that the phrase “in a manner consistent with” “does not indicate a balancing test but rather a condition that must be fulfilled,” the ruling said.
The appeals court, however, is neither addressing nor recommending whether the Commission should adopt the rule as proposed by the petitioners. It just opens the discussion again, remanding the petition back to square one.
The Colorado Appeals Court decision is the latest chapter of legal battles concerning oil and gas development in the state.
In February, Colorado Attorney General Cynthia Coffman filed a lawsuit against Boulder County following weeks of threats over the county’s refusal to remove a moratorium on oil and gas exploration in unincorporated areas.
Boulder’s ban stipulates that the local authorities will not accept and process any new oil and gas exploration permit applications.
The moratorium was first introduced back in 2012, and since then has been extended eight times. According to the Attorney General’s press release, Boulder “continues to operate in clear violation of Colorado law” and the AG is suing to “compel compliance”.
Legal battles will always surround the health-vs.-wealth debate in oil and gas development, especially as far as fracking is concerned.
By Tsvetana Paraskova for Oilprice.com
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