CO Supreme Court Held Colorado Oil and Gas Conservation Commission Properly Declined to Engage in Rulemaking Proposed by Environmental Activists

On January 14, the Colorado Supreme Court issued a unanimous opinion that the Colorado Oil and Gas Conservation Commission (Commission) properly declined to undertake a rulemaking proceeding that was designed to preclude the Commission from issuing new permits unless the “best available science,” as confirmed by the findings of an independent third-party organization, determines that the drilling will occur in a manner that does not cumulatively impair the state’s atmosphere, water, wildlife, land resources and does not contribute to climate change. The case is Colorado Oil and Gas Conservation Commission, et al., v. Martinez, et al.

The proponents of this rulemaking are described by the Court as “youth activists who have devoted substantial time and effort towards pursuing their goal of protecting the health of Colorado citizens and Colorado’s environment.” The Commission, after soliciting public comment, declined to engage in this rulemaking, and its decision was affirmed by the Denver District Court. However, a division of the Colorado Court of Appeals reversed this decision, which was then appealed to the Colorado Supreme Court.

Many parties became involved in this litigation, filing amicus curiae briefs on both sides of the issue. The Court has now reversed the Denver District Court, holding that the Commission properly declined to engage in this rulemaking proceeding because:

(1) the Court’s review of such an administrative action is limited and highly deferential;

(2) the Commission correctly determined that, under the law, it has no authority to condition new oil and gas drilling permits on a finding of no cumulative adverse impacts to public health and the environment; and

(3) the Commission reasonably relied on the fact that it was already working with the Colorado Department of Public Health and the Environment to address the rulemaking proponents underlying concerns.

The legislative history of the Colorado Oil and Gas Conservation Act was examined in some detail, compelling the Court to conclude that there was no “ legislative intention to establish the protection of public health, safety and welfare as a check on oil and gas development.” To the contrary, the legislature’s intent was “to minimize adverse impacts to public health and the environment while at the same time ensuring that oil and gas development, production, and utilization could proceed in an economical manner.”

According to news reports, the new Governor of Colorado wants to see what he can do in response to this ruling.

Additional Resource:  Colorado governor pushes local controls on oil-gas decisions