Martinez v. COGCC: Colorado Supreme Court Rejects Adverse Impacts Pre-Condition

On January 14, 2019, the Colorado Supreme Court reached a decision in COGCC v. Martinez, ending more than five years of litigation between seven youth activists from Boulder-based Earth Guardians and the Colorado Oil and Gas Conservation Commission (“COGCC”). The Court held that the COGCC appropriately exercised its agency discretion when it declined to undertake a rulemaking that would have conditioned approval of applications for oil and gas drilling permits on a conditional finding of no adverse impacts to health, safety, or the environment.

The facts of the highly publicized case are well known. In 2013, Earth Guardians petitioned the COGCC to promulgate a rule requiring that COGCC withhold issuance of any new drilling permits “unless the best available science demonstrates, and an independent, third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change.” COGCC declined to undertake the proposed rule-making, finding, inter alia, that the proposed rule was beyond COGCC’s limited statutory scope. The petitioners appealed to district court, which affirmed COGCC’s denial of the petition.

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COGCC: A Balancing Act or “Subject To” Protection of Health, Safety, and Environment – A Surprising Decision from the Colorado Court of Appeals

A recent decision from the Colorado Court of Appeals (“Court”) could mean a new focus for the Colorado Oil and Gas Conservation Commission (COGCC). On March 23, a three-judge panel issued a split decision in Martinez v. Colo. Oil & Gas Conservation Comm'n, 2017 COA 37, with two of the three Judges rejecting the COGCC’s assertion that its role under the Oil and Gas Conservation Act (Colo. Rev. Stat. §§ 34-60-101 to -130) (the “Act”), is to balance oil and gas development with other public interests such as public health, safety, and welfare.

At issue was a petition for rulemaking filed with the COGCC in 2013 by members of the Boulder-based Earth Guardians asking that the COGCC “not issue any permits for the drilling of a well for oil and gas unless the best available science demonstrates, and an independent, third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.” The COGCC solicited and reviewed a substantial amount of public input on the matter, and later denied the petition, finding, inter alia, that the proposed rule would require it to “readjust the balance crafted by the General Assembly under the Act,” thus making the proposed rule “beyond the Commission’s limited grant of statutory authority.” The petitioners appealed that decision to the Denver District Court, which affirmed the COGCC’s denial of the petition.

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