The Martinez Case: Youth take on the COGCC
Eight youth activists request that the COGCC stop issuing permits for hydraulic fracturing until it can be done “without adversely impacting human health and safety and without impairing Colorado’s atmospheric resource and climate system, water, soil, wildlife, and other biological resources.”
Wording in the oil and gas act that started the whole thing:
§ 34-60-102. Legislative declaration
(a) It is declared to be in the public interest to:
(I) Foster the responsible, balanced development, production and utilization of the natural resources of the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.
The Martinez case timeline
November 2013: Xiuhtezcatl Martinez and eight youth activists deliver a rulemaking petition to the COGCC
May 2014: COGCC denies the youth’s petition
July 2014: Youth appeal COGCC’s decision to the Denver District Court.
December 2014: Court rules in favor of the youth and says the case should proceed.
April 2015: Youth plaintiffs file opening brief for Martinez et al., v. Colorado Oil and Gas Conservation Commission in the Denver District Court.
February 2016: Denver District Court affirms Colorado Oil and Gas Conservation Commission’s (COGCC’s) denial of the fracking petition
April, 2016: Plaintiffs appeal Denver District Court’s decision.
August 2016: Plaintiffs file opening brief in the Colorado Court of Appeals.
March 2017: Colorado Court of Appeals reverses the COGCC's and the district court’s orders. Court of Appeals remands the case to the district court and the COGCC, finding that the COGCC erred in its interpretation of Colorado law.
Where the Martinez case stands now—appealed to the Colorado Supreme Court
Attorney General Cynthia Coffman and the COGCC appealed the ruling to the State Supreme Court. In late January 2018, the Colorado Supreme Court decided to hear the attorney general’s appeal. It will likely take more than a year before the Supreme Court makes a decision.
The issue boils down to this wording in the Oil and Gas Act
Does the adjective “balanced” modify (apply to) only the words development, production, and utilization? (Remember diagramming sentences?) The Appeals Court said yes.
What’s the meaning of the phrase “in a manner consistent with”? The Appeals Court says it means “subject to.”
In essence, the Appeals Court said that the protection of public health, safety, and welfare are not be balanced with development, production, and utilization of natural resources. Instead, development, production, and utilization must be subject to public health, safety, and welfare…
Appeals Court rules the kids were right—clips from ruling
“As used in the plain text, ‘balanced’ is an adjective which modifies the nouns ‘development, production, and utilization.’ …an adjective modifies a noun that follows it.”
“Interpreting the phrase ‘in a manner consistent with’ as a balancing test disregards the plain meaning of the phrase. The plain meaning of the statutory language indicates that fostering balanced, non-wasteful development is in the public interest when that development is completed subject to the
protection of public health, safety, and welfare. Rather, the clear language of the Act — supported by the Act’s legislative evolution and the Commission’s own enforcement criteria — mandates that the development of oil and gas in Colorado be regulated subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources.”
Martinez: A treatment, not a cure—here’s why
The Court of Appeals didn’t change the authority of the COGCC. Decision-making authority still rests with an appointed body represented by oil and gas interests, not an elected body charged with representing and protecting the health and safety of Colorado communities.
If the COGCC needs evidence that fracking is safe before issuing permits, are we home free? Not really. Who decides what evidence must be provided? Who decides how that evidence is collected, analyzed, and produced? A win in the Martinez case is the start of a new and different fight—this one over evidence.
And the industry and regulators have said for years that there’s no evidence that fracking harms water supplies or releases enough methane to affect climate change. The governor agrees.
Hickenlooper says the COGCC already prioritizes public health and safety
“While we understand and respect the commission’s desire for further clarity from the Supreme Court, we believe the court of appeals’ decision does not represent a significant departure from the commission’s current approach,” Hickenlooper’s statement said. “The commission [COGCC] already elevates public health and environmental concerns when considering regulating oil and gas operations.”
Hickenlooper staffers later added: “We asked for no appeal because we don’t see the court’s decision as a significant departure from the commission’s current practice.”
It’s our right to make governing decisions where we live
We have an unalienable right to make the governing decisions about what happens in the places where we live. What if there were lots of evidence showing fracking could be done safely? (Never mind climate change and all the other harms that make this impossible.) What if a community still didn’t want fracking?
They have the right to say no. It’s their community.
Join us at bocoprotectors.org—and press the TAKE ACTION button