Colorado AG Appeals Court’s Oil and Gas Drilling Decision, Despite Governor’s Objections

Published July 20, 2017

Colorado Attorney General Cynthia Coffman (R) is appealing a decision made by a panel of the state’s Court of Appeals in Martinez v. Colorado Oil and Gas Conservation Commission (COGCC), which Coffman says could effectively shut down oil and gas drilling in the state.

The Colorado legislature has charged COGCC with fostering “responsible, balanced” development, production, and use of oil and gas “in a manner consistent with protection of public health, safety, and welfare,” which COGCC has interpreted as a requirement to balance oil and gas production with the latter concerns.

In the Martinez case, a group of teenager activists led by Xiuhtezcatl Martinez requested in 2013 COGCC adopt a new standard and not issue any new oil and gas 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.”

COGCC denied this request in 2014, saying it was outside the scope of its authority. The teens sued COGCC in a Colorado District Court in Denver in an attempt to force the commission to adopt the new rule. In a 2015 ruling, the District Court sided with the commission and Coffman, who represented it, concluding the language of the commission’s charge is “clear and unambiguous” in requiring a balancing of interest between the development of oil and gas resources and protecting public health, safety, and welfare. The youths appealed the decision.

On March 23, in a 2–1 decision, the Colorado Court of Appeals overturned the District Court’s decision, siding with the plaintiffs. It ordered COGCC to do more to protect public health when considering permits for oil and gas production operators in the state.

Governor Fights Appeal

COGCC requested Coffman appeal the Court of Appeals decision. Gov. John Hickenlooper (D) requested Coffman not appeal the decision. Rejecting Hickenlooper’s request, on May 18, Coffman filed an appeal to the Colorado Supreme Court, saying Hickenlooper lacked the authority to overrule the COGCC’s decision to appeal.

“The Commission’s vote to proceed with the Martinez appeal was within its statutory authority,” Coffman wrote in a letter to Hickenlooper. “The General Assembly expressly granted the Commission power to ‘make and enforce rules, regulations, and orders … and to do whatever may be reasonably necessary to carry out the provisions of [the Act].'”

In a statement issued upon filing the appeal, Coffman said, “The Colorado Oil & Gas Conservation Commission unanimously voted to defend its legal position in court, and I agree that the Colorado Supreme Court should review the case due to its legal significance.”

Business Groups Support Appeal

Mike Kopp, CEO of Colorado Concern, an alliance of 120 private-sector CEOs and civic leaders across the state, said the Martinez case was driven by out-of-state, anti-fossil-fuel special-interest groups.

“The legal challenge to COGCC’s mission was led by an activist group that has filed petitions across the country,” said Kopp. “This case is not about how Colorado is managing its natural resources, but rather the agenda of activists who want to see an end to oil and gas production and use everywhere. Coffman should be applauded for appealing the decision.

“COGCC’s rules strike the right balance between protecting the environment and public safety with the need for economic progress and the rights of property owners,” Kopp said. “Colorado has been a leader in fostering responsible development of oil and natural gas in the United States.”

Attorney Peter Moore, chairman of Vital for Colorado, which asked Hickenlooper to challenge the appellate court decision, said Coffman made the right choice in rejecting Hickenlooper’s request to let the appellate court decision stand.

“Coffman showed real leadership, and the business community is thankful for it,” said Moore. “The activists behind this lawsuit have said themselves they want to ban oil and gas production, one of Colorado’s most important economic sectors, not change the way it’s regulated. The Appeals Court’s decision was wrong and must be challenged.”

Michael McGrady ([email protected]writes from Colorado Springs, Colorado.