Description: Rulemaking petition and subsequent litigation seeking to require Colorado Oil and Gas Conservation Commission to deny drilling permits unless they would not adversely impact human health and the environment or contribute to climate change.
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Colorado Oil & Gas Conservation Commission v. Martinez
Case Documents:
Filing Date Type File Action Taken Summary 01/28/2019 Order Download Colorado Supreme Court denied motion to vacate the dissenting opinion of Judge Laurie Booras and vacate this court’s orders, or at a minimum, reconsider and modify the Supreme Court's court’s opinion in light of the vacated dissent. On January 28, 2019, the Colorado Supreme Court denied the youth activists’ motion to vacate the intermediate appellate court’s dissenting opinion on which the Supreme Court relied in its decision and to vacate or reconsider and modify the Supreme Court decision. 01/24/2019 Motion Download Motion filed by Martinez et al. to vacate dissenting opinion of Colorado Court of Appeals judge and vacate the Supreme Court's orders or, at a minimum, to reconsider and modify the Supreme Court's opinion in light of the vacated dissent. Activists Ask Court to Vacate or Reconsider Decision Due to Reliance on Suspended Judge’s Dissent. On January 24, 2019, the youth activists moved to vacate the intermediate appellate court’s dissenting opinion on which the Colorado Supreme Court relied in its decision. They also asked the Supreme Court to vacate or reconsider and modify its decision. The basis for these requests was new information received by the plaintiffs about an email sent by the judge who authored the dissent and judicial discipline proceedings related to the email. The judge sent an email about this case, using a “racial epithet” to refer to another judge on the panel, the day after oral argument before the intermediate appellate court. The email formed part of the basis for a recommendation by the Colorado Commission on Judicial Discipline that the judge, who was already suspended, be removed from the bench. The report adopted by the Commission on Judicial Discipline wrote that the judge’s email about the case, in which the lead plaintiff is of Native American and Latino lineage, “creates a double-barreled appearance of impropriety undermining the public’s trust that she acted without racial bias when dissenting in the case.” The youth activists contended that they had been harmed by the Colorado Supreme Court’s “disregard of [the dissenting judge’s] lack of independence, integrity and impartiality in deciding this case of significant public importance.” 01/14/2019 Opinion Download Opinion issued upholding Commission's determination. Colorado High Court Said Agency Properly Turned Down Youth Activists’ Rulemaking Petition. Reversing an intermediate appellate court, the Colorado Supreme Court ruled that the Colorado Oil and Gas Conservation Commission (COGCC) properly declined to consider a rule proposed by youth activists that would have precluded COGCC from issuing permits for drilling oil and gas wells “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.” First, the Supreme Court noted that its review of agency decisions regarding whether to engage in rulemaking was “limited and highly deferential.” Second, the court concluded that COGCC had correctly determined that the Colorado Oil and Gas Conservation Act did not allow COGCC to condition new oil and development on the absence of cumulative adverse public health and environmental impacts. Third, the Supreme Court found that COGCC reasonably relied on the facts that it was already working with the Colorado Department of Public Health and Environment to address the concerns to which the rulemaking petition was directed and that other COGCC priorities took precedent over the rulemaking requested by the youth activists. 01/29/2018 Order Download Petition for writ of certiorari granted. Colorado Supreme Court Agreed to Consider Whether Oil and Gas Commission Correctly Interpreted State Law in Denying Kids’ Rulemaking Petition. The Colorado Supreme Court agreed to review a ruling by the Colorado Court of Appeals that held that the Colorado Oil and Gas Conservation Commission (COGCC) had incorrectly concluded that it lacked statutory authority to undertake a proposed rulemaking sought by six children. The children submitted a rulemaking petition in 2013 asking COGCC to promulgate a rule “to suspend the issuance of permits that allow hydraulic fracturing until it can be done without adversely impacting human health and safety and without impairing Colorado’s atmospheric resource and climate system, water, soil, wildlife, other biological resources.” A district court affirmed COGCC’s denial of the petition, but the Court of Appeals rejected COGCC’s assertion that the requested rule was beyond the limited authority conferred by the Oil and Gas Conservation Act. The Court of Appeals concluded that the Act mandated that oil and gas development “be regulated subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” The Colorado Supreme Court granted petitions for writ of certiorari filed by COGCC and American Petroleum Institute and Colorado Petroleum Association. The court said it would consider the issue of “[w]hether the court of appeals erred in determining that the Colorado Oil and Gas Commission misinterpreted section 34-60-102(1)(a)(I), C.R.S. as requiring a balance between oil and gas development and public health, safety, and welfare.” 06/29/2017 Opposition Download Opposition filed to petitions for writ of certiorari. 05/18/2017 Letter Download Letter sent to Colorado governor by Colorado attorney general. In response to a request from the governor’s office not to pursue the appeal, the attorney general sent a letter asserting that the governor did not have authority to direct COGCC’s decision-making and that the attorney general had independently determined that the issues raised in the case should be determined by the Colorado Supreme Court. 05/18/2017 Petition Download Petition for writ of certiorari filed by COGCC. Colorado Oil and Gas Conservation Commission Sought Colorado Supreme Court Review of Appellate Division That Reversed Denial of Youth Activists’ Rulemaking Petition. The Colorado Oil and Gas Conservation Commission (COGCC) asked the Colorado Supreme Court to review an intermediate appellate court’s decision holding that COGCC had wrongly denied a rulemaking petition on the grounds that the requested COGCC to take action outside its statutory authority. The rulemaking petition, which was submitted by a group of young people, sought to bar issuance of permits for oil and gas drilling unless best available science demonstrated that there would not be adverse impacts to the environment or human health or a contribution to climate change. COGCC said that the appellate court’s interpretation of the Oil and Gas Conservation Act improperly required the agency to prioritize environmental concerns over other policy considerations that the Act required COGCC to take into account. COGCC said this “novel interpretation” conflicted with Supreme Court and other appellate court precedent, was at odds with the Act’s actual language, and implicitly endorsed the public trust doctrine, which had not been adopted in Colorado. The particular issue COGCC asked the court to consider was whether, “[w]hen the Commission engages in rulemaking, is it permitted to disregard the Act’s policy of fostering oil and gas development in Colorado?” COGCC and the Colorado Attorney General decided to pursue the appeal despite objections by Governor John W. Hickenlooper. 05/18/2017 Petition Download Petition for writ of certiorari filed by intervenors American Petroleum Institute and Colorado Petroleum Association. -
Martinez v. Colorado Oil & Gas Conservation Commission
Case Documents:
Filing Date Type File Action Taken Summary 03/23/2017 Opinion Download Denial of rulemaking petition reversed. Colorado Appellate Court Said Oil and Gas Commission Had Misinterpreted Its Statutory Authority in Denying Children’s Rulemaking Petition. The Colorado Court of Appeals ruled that the Colorado Oil and Gas Conservation Commission (COGCC) had incorrectly concluded that a proposed rulemaking sought by six children was outside its statutory authority. The proposed rulemaking would have required COGCC to deny drilling permits unless “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 determined—and a district court agreed—that the rule was outside its statutory authority because it would have required readjustment of the balance between oil and gas production and public health, safety, and welfare required by the Oil and Gas Conservation Act. The Act declares that it is in the public interest to “[f]oster 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 appellate court said that “[i]nterpreting the phrase ‘in a manner consistent with’ as a balancing test disregard[ed] the plain meaning of the phrase,” which “denotes more than a mere balancing.” The court concluded that the statute provided that promotion of oil and gas development was in the public interest “when that development is completed subject to the protection of public health, safety, and welfare.” The court said that other sections of the Act were not contrary to this interpretation and that the interpretation was supported by the “evolution” of legislation regulating the oil and gas industry. The appellate court also said the administrative record would not support an affirmance of COGCC’s decision on other grounds such as the need for other COGCC priorities to take precedence over the proposed rulemaking or COGCC’s reference to the proposed rule’s impermissible delegation to third parties. One judge dissented from the majority’s conclusion that the statutory scheme required consideration of public health, safety, and welfare “as a determinative factor,” noting that the language relied on by the majority was in the Act’s “legislative declaration,” which the dissenting judge said should not have overridden language in other sections of the statute. -
Martinez v. Colorado Oil & Gas Conservation Commission
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Petition to Colorado Oil & Gas Conservation Commission & Colorado Department of Natural Resources for Rule Suspending Issuance of Hydraulic Fracturing Permits