Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martinez v. Colorado Oil and Gas Conservation Commission

Court of Appeals of Colorado, Fifth Division

March 23, 2017

Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray, minors appearing by and through their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray, Plaintiffs-Appellants,
v.
Colorado Oil and Gas Conservation Commission, Defendant-Appellee, and American Petroleum Institute and Colorado Petroleum Association, Intervenors-Appellees.

         City and County of Denver District Court No. 14CV32637 Honorable J. Eric Elliff, Judge

          Colorado Environmental Law, LTD., Katherine Marlin, Boulder, Colorado; Minddrive Legal Services, LLC, James Daniel Leftwich, Boulder, Colorado; Wild Earth Advocates, Julia Olson, Eugene, Oregon; for Plaintiffs-Appellants

          Cynthia H. Coffman, Attorney General, Jake Matter, Senior Assistant Attorney General, Brittany K. Beckstead, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

          Ryley Carlock & Applewhite, Richard C. Kaufman, Julie A. Rosen, Matthew K. Tieslau, Denver, Colorado, for Intervenors-Appellees

          Western Environmental Law Center, Kyle Tisdel, Taos, New Mexico, for Amici Curiae Colorado Chapter Global Catholic Climate Movement, 350 Colorado, Eco-Justice Ministries, Denver Catholic Network and Global Climate Movement, The Rocky Mountain Peace and Justice Center, Wall of Women Colorado, Colorado People's Alliance, Citizens for a Healthy Fort Collins, Transition Fort Collins, The Fort Collins Sustainability Group, Citizens for a Healthy Community, Be the Change, The Colorado Coalition for a Livable Climate, Clean Energy Action, The Climate Culture Collaborative, Co-Op Members Alliance, The Community for Sustainable Energy, Eco Elders, Vibrant Planet, EnergyShouldBe.org, Frack Free Colorado, Lakewood Renewable Energy Lakewood, North Metro Neighbors for Safe Energy, and Protect Our Loveland

          Cynthia H. Coffman, Attorney General, Claybourne F. Clarke, Senior Assistant Attorney General, Laura Terlisner Mehew, Benjamin Saver, Assistant Attorneys General, Denver, Colorado, for Amicus Curiae Colorado Department of Public Health and Environment

          Kevin Lynch, Timothy Estep, Denver, Colorado, for Amici Curiae Our Health, Our Future, Our Longmont; Sierra Club; Earthworks; and Food & Water Watch

          JUDGE [*] VOGT concurs.

          OPINION

          FOX, JUDGE

         ¶ 1 Through their legal guardians, Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray (collectively Petitioners), who reside and recreate in Colorado, appeal the district court's order and final judgment affirming a decision of the Colorado Oil and Gas Conservation Commission (the Commission) denying Petitioners' rulemaking petition. The American Petroleum Institute and the Colorado Petroleum Association (collectively Intervenors) intervened in the district court and filed an appellate brief supporting the district court's order. Additionally, on appeal, twenty-nine agencies and interest groups join as amici curiae, collectively filing three amici briefs.[1]

         ¶ 2 This appeal concerns the scope of authority and obligation delegated to the Commission by the General Assembly in the Oil and Gas Conservation Act (the Act), §§ 34-60-101 to -130, C.R.S. 2016, to regulate oil and gas production in the interests of public health and safety. The district court affirmed the Commission's order after concluding that the Commission lacked authority to consider a proposed rule that would require it to readjust the Act's balance between the development of oil and gas resources and protection of public health, safety, and welfare. Because we agree with Petitioners that this conclusion was erroneous, we reverse the judgment of the district court and the decision of the Commission and remand to the district court to return the case to the Commission for further proceedings consistent with this opinion.

         I. Background

         ¶ 3 Hydraulic fracturing (fracking) is a modern process used to stimulate oil and gas production from an existing well by injecting water mixed with other chemicals and materials which cause, and hold open, fractures in a well bore allowing oil and gas to flow to the well bore via the newly created fractures. City of Longmont v. Colo. Oil & Gas Ass'n, 2016 CO 29, ¶ 1.

         ¶ 4 The Commission is charged with generally regulating oil and gas resource production in Colorado. See § 34-60-105, C.R.S. 2016; § 34-60-106, C.R.S. 2016.

         ¶ 5 On November 15, 2013, Petitioners filed a petition for rulemaking pursuant to the Commission's Rule 529(b). See Dep't of Nat. Res. Reg. 529, 2 Code Colo. Regs. 404-1. Petitioners proposed a rule requesting that the Commission

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.

         ¶ 6 The Commission solicited and received written stakeholder comments and held a hearing, on April 28, 2014, where parties favoring and opposing the proposed rule testified.

         ¶ 7 The Commission ultimately denied the petition, concluding that (1) the proposed rule mandated action that was beyond the limited statutory authority delegated by the General Assembly in the Act; (2) review by a third party - as Petitioners requested - contradicted the Commission's nondelegable duty to promulgate rules under section 34-60-106(11)(a)(II) and is contrary to the Act; and (3) the public trust doctrine, which Petitioners relied on to support their request, has been expressly rejected in Colorado.[2]

         ¶ 8 The Commission also concluded that "the Commission and the Colorado Department of Public Health and the Environment (CDPHE) are currently addressing many of the Petitioners' concerns through more gradual changes in regulation within their relative jurisdictions." In reaching its conclusions, the Commission largely relied on a memo from the Colorado Attorney General's Office which advised that the Commission lacked jurisdiction to adopt the proposed rule as written, and that there is no statutory basis to withhold drilling permits pending the Petitioners' proposed impact reviews.[3]

         ¶ 9 On July 3, 2014, Petitioners appealed the Commission's decision to the district court pursuant to the State Administrative Procedure Act, § 24-4-106, C.R.S. 2016. The parties filed briefs and Petitioners requested oral argument.

         ¶ 10 The district court, ruling on the briefs, applied the two-part test from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and concluded that the Act's language is clear and unambiguous and requires a balance between the development of oil and gas resources and protecting public health, safety, and welfare. The district court further concluded that the Commission did not act arbitrarily or capriciously in relying on the advice of the Attorney General's Office, and that it rationally decided to deny the petition after considering input from stakeholders on both sides of the fracking issue. Thus, the district court affirmed the Commission.

         II. The Commission's Duty Under the Act

         ¶ 11 Petitioners contend that the district court and the Commission erred ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.