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Garfield Commission may consider further legal steps in air quality rules challenge

Legal challenge one of 10 SB-191 rulemakings Garfield County is following closely

Post Independent oil and gas graphic

Garfield County Commission Chairman John Martin says he and his fellow commissioners are disappointed with a Denver district judge’s ruling this week throwing out a multi-county challenge to new state regulations on oil and gas emissions.

But that may not be the end of it, he also said.

“We are reviewing things to see if we need to follow through legally, or accept it,” Martin said, indicating the question of a possible appeal would be addressed by the Garfield County Board of County Commissioners and its partner county commissions.

“We will want to talk with our partners and see what they want to do,” Martin said. “Whatever decision we make, it would be nice to have a majority of everyone on board.”

Denver District Court Judge Martin Foster Egelhoff earlier this week granted a motion by the state of Colorado to dismiss the lawsuit brought by 10 counties.

Garfield County is the lead county on the case. The county is using a portion of its $1.5 million investment over the past two years to participate in the state’s sweeping new oil and gas regulation rulemaking process to challenge certain provisions.

Garfield and the other counties have sought to overturn revised Regulation 7, in particular, which requires oil and gas companies to conduct more frequent inspections of facilities located within 1,000 feet of homes, playgrounds, schools and other occupied areas.

The county has also argued that the Colorado Air Quality Control Commission (AQCC) did not adequately consider local economic impacts in making the rules, and that oil and gas operations in rural areas should be not be held to the same standards as the larger operations on the Front Range.

In his ruling, Egelhoff cited the dismissal of a similar case brought by Weld County, writing that the Garfield County coalition “… will not suffer any direct harm or cost from compliance with the revised [regulation], and that the indirect and incidental impacts that may flow from subsequent business decisions of third parties are insufficient to confer standing.”

The new rules were adopted by the AQCC in Dec. 2019, and were among the first provisions put in place under Senate Bill 181, which changed the way oil and gas is regulated in the state.

Earlier this summer, a coalition of community and conservation groups were granted the right to intervene in the state’s defense of Garfield County’s case.

“The negative effects of oil and gas development on our air quality and the resulting health impacts demonstrate the clear need for rules that ensure accountability,” Sara Loflin, executive director at League of Oil and Gas Impacted Communities, said in a news release after the Tuesday court ruling.

“The expenditures of Garfield County and other local governments to fight health and safety protections for their own residents have been dismaying,” she said. “The court’s ruling is a win for all Coloradans who depend on clean air, and particularly for those who are directly impacted by oil and gas development.”

Kirby Wynn, Garfield County’s staff oil and gas liaison, said the county’s allocation of funds to participate in the Colorado Oil and Gas Conservation Commission (COGCC) and AQCC’s rulemakings has been misconstrued as being used to “fight” the new rules.

“We are one of over 50 local governments, plus another 40-plus other parties, invited to participate and provide our recommendations on what the rules should look like and why,” Wynn said in an email to the Post Independent. “Not one party I can think of, and no local government parties for sure, has supported each and every proposed rule.

“Garfield County and our coalition have a history of supporting most of what the agencies are proposing.”

At the same time, when the coalition believes a draft rule is “off track,” it will use the expertise it has, both internally and through outside counsel, to recommend otherwise, Wynn said.

The $1.5 million is intended to support participation in 10 different rulemakings being put forward by the AQCC, the COGCC and the Colorado Water Quality Control Commission.

“We are hardly unique in our interest, approach and investments to participate,” Wynn added. “Many local governments seem to have outside counsel and are utilizing topical experts.”

Added Martin, “It is important that we are being heard. …There is a lot that we agree with, but where we disagree is often a matter of procedure where the outcomes are not fair.”

The COGCC is slated to begin its next rulemaking process on Monday, Aug. 24 related to the commission’s mission change, alternative site location analysis and cumulative impacts of oil and gas operations.

To listen in on and participate remotely via Zoom in the public hearing beginning at 8 a.m., visit the COGCC website.

jstroud@postindependent.com


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