Colorado Court: Oil, Gas Drilling Decisions Can't Hinge on Public Health

By Nicholas Kusnetz, InsideClimate News

17 January 19

Young activists wanted regulators to make oil and gas development contingent on protecting health and curbing climate change. Now they hope to change the law.

n a case that had threatened to sharply curtailed oil and gas drilling in Colorado, the state Supreme Court ruled Monday that state regulators cannot put health and environment above all other considerations when approving new fossil fuel development under the current state law.

It's another setback for young activists and others in Colorado and across the country who have been pushing legal challenges and ballot measures to limit fossil fuel development in order to rapidly cut the nation's climate-warming emissions.

But the plaintiffs in Colorado vowed to continue their fight, and they could see some help from the state legislature.

"There are two options now," said Julia Olson, executive director of Our Children's Trust, an advocacy group that is representing the plaintiffs who challenged how regulators were interpreting the state's oil and gas law. They can pressure lawmakers to amend the law, she said, or they can challenge the law's constitutionality.

Olson's group and one of the young plaintiffs are also part of a lawsuit brought by a group of children and young adults against the federal government in which they argue that it has a duty to limit fossil fuel development and limit greenhouse gas emissions. That case is awaiting a decision from the Ninth Circuit Court of Appeals on whether it can proceed to trial.

Young Plaintiffs Wanted Health, Climate Rules

The Colorado lawsuit dates back to 2013, when a group of children and teens petitioned the state's Oil and Gas Conservation Commission to enact a rule that would condition any new drilling on a determination that it would not harm public health or the environment and would not contribute to climate change.

The commission—which is charged with fostering oil and gas development and doing so in "a manner consistent with protection of public health, safety, and welfare"—said it doesn't have the authority to set such a condition, so the kids sued. After a district court ruled against the plaintiffs, a state appeals court overturned that decision in 2017 and ordered the case back to the oil and gas commission.

In its ruling this week, the Supreme Court sided with the state and oil and gas industry groups, which argued that Colorado's oil and gas laws aim to strike a balance between promoting development and protecting public health.

Justice Richard L. Gabriel wrote that the commission cannot condition oil and gas development on "a finding of no cumulative adverse impacts to public health and the environment."

Tracee Bentley, executive director of the Colorado Petroleum Council, a division of the American Petroleum Institute, issued a statement after the decision saying "it's time to focus on uniting to encourage energy development in the United States, and, specifically, in Colorado."

Colorado's Legislature May Pick Up the Fight

But the issue appears likely to come up in the state legislature. Gov. Jared Polis, a Democrat who took office this month, said in a statement that he was disappointed by the 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."

While Democrats already held the governor's office and the state House of Representatives, they also won a majority in the Senate in November.

State Sen. Mike Foote, a Democrat, told the Denver Post he was working on a bill to ensure that public health is protected by the oil and gas commission.

Colorado has had a series of charged fights over booming oil and gas development, which in recent years has expanded into suburban developments and encroached on homes and schools. In November, voters rejected a ballot measure that would have sharply cut new oil and gas drilling by extending the minimum distance between wells and homes.