[Editor’s note: Katherine Merlin, Esq. is co-counsel for the plaintiffs in Martinez v COGCC, alongside Dan Leftwich with lead attorney; Julia Olson. This is a guest column on the recent and profound Martinez v COGCC ruling.]
In 2013, eight Colorado children filed a petition for rulemaking with the Colorado Oil and Gas Conservation Commission (COGCC), the state agency with sole and exclusive jurisdiction over regulating non-federal oil and gas activities in Colorado. The 50+ pages of the petition were crammed with evidence from peer-reviewed, published scientific papers about the health and safety dangers posed by oil and gas development – hydraulic fracturing, or fracking, in particular. This evidence included global warming from methane leakage and venting, but also water pollution, toxic air emissions, links to developmental effects on the unborn. The children (the eldest of whom were only 13) asked the COGCC to stop issuing new permits for oil and gas development in Colorado until more certainty could be obtained that the industry was not causing these types of catastrophic health and safety impacts on Colorado residents.
The COGCC denied the children’s request for rulemaking, saying among other things that the agency lacked the authority to stop issuing permits. It said that its authority required it to foster and promote the industry, and that it was merely allowed to “balance” health and safety against the needs of industry. The children’s appeal was based on the statutory mandate of the COGCC, the plain English of which said that the COGCC had to foster and promote industry “in a manner consistent with” protecting public health, safety, and welfare, and the environment. The argument was that the words “in a manner consistent with” do not set up a balancing test, but create a mandatory condition, which the agency could not simply overlook as it had been doing.
It should be noted that in its decision the COGCC never disputed the scientific evidence put forward, including evidence regarding the catastrophic projected impacts of climate change. The COGCC does not deny that climate change exists, it merely ignores the fact that Colorado’s oil and gas industry is responsible for a large percentage of Colorado’s overall climate emissions.
After a “rubber stamp” ruling from the District Court, a three-judge panel of the Colorado Court of Appeals ruled in favor of the children’s petition. “[T]he clear language of the Act,” said Judge Fox, for the court, “supported by the Act’s legislative evolution and the Commission’s own enforcement criteria — mandates that the development of oil and gas in Colorado be regulated subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” Judge Laurie Booras, who wrote the dissenting opinion, is resigning from the bench January 31, after a panel of judges found multiple judicial improprieties, including an email in which she referred Judge Fox as “the little Mexican.” The named plaintiff in the Martinez case also identifies as Latinx/indigenous.
This decision, had it been allowed to stand, would have ensured that the COGCC evaluate scientific evidence about the risks and benefits of the activities which it regulates, and would have required them to deny permits where there were unacceptable health and safety impacts. It was an open question about what degree of health and safety impact would be permissible, and it is likely to have invited further legal challenges. However, a standard which permits some degree of carefully analyzed risk seems obviously vastly superior to a standard which requires no analysis, has no limit on acceptable risks, and only requires industry to take “cost-effective” and “feasible” steps to limit harm.
The case was appealed to the Colorado Supreme Court by Attorney General Cynthia Coffman and the two intervenors in the case, the Colorado Oil and Gas Association and the American Petroleum Institute. Dozens of environmental organizations, parent and teacher associations, local governments, and others wrote amicus briefs urging the court to uphold the Court of Appeals decision, and to protect Colorado’s people from a greedy and rapacious industry that has already caused numerous civilian and worker fatalities.
Yesterday, the Colorado Supreme Court placed the profit of industry above the lives of Colorado residents. The Colorado Supreme Court not only reversed the Court of Appeals, it actually found that the COGCC had been providing too much consideration of health and safety in its “balancing” test. Instead, the Court reasoned, the COGCC must actually foster the development of oil and gas, preventing adverse environmental impacts to the extent necessary to protect public health, safety, and welfare only after taking into consideration cost-effectiveness and feasibility.
This standard is beyond the wildest dreams of industry. Any potential rule or requirement to protect the public from catastrophic fires or explosions, or from climate change, must now be evaluated as to whether or not the industry can afford it.
To show just how murderous and evil this a rule this will be, consider this hypothetical: A company wants to frack at Rocky Flats (this just happened). The COGCC now lacks statutory authority to say no, because it must foster the development of oil and gas, and there is no cost-effective or feasible way to prevent the disturbance of the radioactive material at Rocky Flats other than by saying no to the project.
It is easy to see the warnings of oil and gas activists as hyperbole if you are unfamiliar with the oil and gas industry in Colorado. However, they are anything but hyperbole. Anadarko’s former employees filed a whistleblower suit against the company, claiming health and safety violations. The complaint likens Anadarko’s Colorado operations to “a ticking time bomb.” Multiple deaths have occurred, and numerous other accidents have been “near misses.” Industry employees have been made to pay their own hospital bills after being injured on the job.
Colorado is now at the mercy of industry; our health and safety now depend on what the industry claims it can afford to spend to protect us.