Rekubit Exchange:Colorado Court: Oil, Gas Drilling Decisions Can’t Hinge on Public Health

Updated Jan. 28 with Supreme Court response to request for review.

In a case that had threatened to sharply curtail oil and Rekubit Exchangegas drilling in Colorado, the state Supreme Court ruled on Jan. 14 that state regulators cannot put health and environment above all other considerations when approving new fossil fuel development under the current state law.

It’s another setback for young activists and others in Colorado and across the country who have been pushing legal challenges and ballot measures to limit fossil fuel development in order to rapidly cut the nation’s climate-warming emissions.

But the plaintiffs in Colorado vowed to continue their fight, and they could see some help from the state legislature.

“There are two options now,” said Julia Olson, executive director of Our Children’s Trust, an advocacy group that is representing the plaintiffs who challenged how regulators were interpreting the state’s oil and gas law. They can pressure lawmakers to amend the law, she said, or they can challenge the law’s constitutionality.

Two weeks later, the attorneys also tried a third route, requesting that the court reconsider its decision after information came to light about a judge who had issued an earlier opinion in the case. The court rejected that request on Jan. 28.

Olson’s group and one of the young plaintiffs are also part of a lawsuit brought by a group of children and young adults against the federal government in which they argue that it has a duty to limit fossil fuel development and limit greenhouse gas emissions. That case is awaiting a decision from the Ninth Circuit Court of Appeals on whether it can proceed to trial.

Young Plaintiffs Wanted Health, Climate Rules 

The Colorado lawsuit dates back to 2013, when a group of children and teens petitioned the state’s Oil and Gas Conservation Commission to enact a rule that would condition any new drilling on a determination that it would not harm public health or the environment and would not contribute to climate change.

The commission—which is charged with fostering oil and gas development and doing so in “a manner consistent with protection of public health, safety, and welfare”—said it doesn’t have the authority to set such a condition, so the kids sued. After a district court ruled against the plaintiffs, a state appeals court overturned that decision in 2017 and ordered the case back to the oil and gas commission.

In its ruling, the state Supreme Court sided with the state and oil and gas industry groups, which argued that Colorado’s oil and gas laws aim to strike a balance between promoting development and protecting public health.

Justice Richard L. Gabriel wrote that the commission cannot condition oil and gas development on “a finding of no cumulative adverse impacts to public health and the environment.”

Tracee Bentley, executive director of the Colorado Petroleum Council, a division of the American Petroleum Institute, issued a statement after the decision saying “it’s time to focus on uniting to encourage energy development in the United States, and, specifically, in Colorado.”

Colorado’s Legislature May Pick Up the Fight

But the issue appears likely to come up in the state legislature. Gov. Jared Polis, a Democrat who took office this month, said in a statement that he was disappointed by the ruling. “It only highlights the need to work with the Legislature and the Colorado Oil & Gas Conservation Commission to more safely develop our state’s natural resources and protect our citizens from harm.”

While Democrats already held the governor’s office and the state House of Representatives, they also won a majority in the Senate in November.

State Sen. Mike Foote, a Democrat, told the Denver Post he was working on a bill to ensure that public health is protected by the oil and gas commission.

Colorado has had a series of charged fights over booming oil and gas development, which in recent years has expanded into suburban developments and encroached on homes and schools. In November, voters rejected a ballot measure that would have sharply cut new oil and gas drilling by extending the minimum distance between wells and homes.

Youth Appeal Over a Judge’s Remarks

On Jan. 24, lawyers for the young plaintiffs also asked the state Supreme Court to reconsider its ruling after discovering that an appeals court judge who had handled the case was found to have engaged in judicial misconduct.

The Supreme Court had drawn partially on a dissenting opinion written in 2017 by Judge Laurie Booras, who sided with the state and the oil industry. 

According to a document filed with the Colorado Supreme Court, Booras sent an email the day after she heard oral arguments in the case in which she revealed that she would write a dissenting opinion against the youth. In that email, the document states, she also used a racial epithet to refer to one of her colleagues, who is Latina. The episode led to an investigation by a judicial commission, which recommended Booras be removed from office. 

Some of the plaintiffs are also of Mexican descent, and lawyers for the youth said the email and its contents suggest Booras was biased in her ruling against them, and that her dissenting opinion should be nullified. The Supreme Court justices should also revisit their ruling, the lawyers argued, because it drew partly on the opinion written by Booras, who had submitted her resignation before the justices issued their decision in the case.