Court decision could sway Colorado battle over oil-gas rules
DENVER — Colorado regulators can put more weight on protecting public health and the environment when they draw up rules for oil and gas drilling, the state’s second-highest court said Thursday, giving environmentalists and others a new tool to argue for stricter regulations.
The 2-1 ruling by the Court of Appeals could have major implications for Colorado’s long-running battle over the proliferation of hydraulic fracturing wells near fast-growing urban areas.
However, the ruling in a lawsuit filed by six young plaintiffs could face a review by the state Supreme Court.
Hydraulic fracturing — or fracking — uses a high-pressure mix of water, sand and chemicals to loosen underground formations and release oil and gas. Some say the chemicals are dangerous but the industry says the technique is safe.
“This is an incredibly important decision,” said Julia Olson, an attorney for the six teen and pre-teen plaintiffs in the case who sued state regulators seeking stricter rules.
“The court isn’t saying there can be no oil and gas development, but that oil and gas development must be conditioned on ensuring public health and safety,” she said.
The ruling is the latest development in the yearslong jostling among the energy industry, environmental advocates and some local governments in Colorado, where cities often overlap lucrative oil and gas fields.
Colorado law and many recent court rulings have gone the industry’s way. Last year, the state Supreme Court slapped down attempts by two cities to ban or delay fracking wells, saying only the state has the power to regulate the industry.
The Colorado Oil and Gas Conservation Commission, which regulates the industry, said it disagreed with Thursday’s ruling and was evaluating whether to appeal.
The Colorado Petroleum Council, which intervened on the side of the commission, said it was disappointed and that the state already has strong protections.
The plaintiffs had asked the regulators to enact a rule that would require energy companies to show they wouldn’t harm human health or the environment or contribute to climate change before regulators issued a drilling permit.
Regulators responded that they didn’t have that authority, saying Colorado law required them to balance public safety with responsible oil and gas production.
Two of the three appeals court judges disagreed, saying regulators had misinterpreted the language of the law. The law requires regulators to ensure public and environmental protections, not balance them against other considerations, they said.
The third judge sided with the regulators, noting the law requires them to consider cost-effectiveness and technical feasibility when protecting the public and environment.
Mark Squillace, a professor of natural resources law at the University of Colorado who was not involved in the case, said it would be difficult for the state Supreme Court to overturn the ruling because the language of the statute is clear.
“The statute quite clearly requires that oil and gas development be done ‘in a manner consistent with protection of public health, safety, and welfare,’” he said, quoting from the law.
The decision directed the regulators to reconsider the plaintiffs’ proposed regulation.
Olson, the plaintiffs’ attorney, is executive director of Our Children’s Trust, an Oregon group that advocates for environmental and climate protections on behalf of children.
Our Children’s Trust also represents young climate activists in a lawsuit in federal court in Oregon that contends the U.S. government is failing to protect them from the harmful effects of greenhouse gas emissions.
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