January 14, 2019 09:32 AM UTC

BREAKING: Colorado Supremes Say Big Oil Can Poison You

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• 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.

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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.”

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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…

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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]

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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.