A Colorado Court of Appeals decision issued on Thursday, essentially finding that state law requires oil and gas regulators to place greater priority on protection of public health and the environment in issuing drilling permits, may prove to be a shot in the arm for beleaguered anti-fracking groups.
The decision comes in a case brought by attorneys for six underage plaintiffs, who contend that the Colorado Oil and Gas Conservation Commission isn't doing enough to protect today's youth and future generations from the potential hazards of fossil-fuel drilling, from pollution-related respiratory ailments to environmental degradation and climate change. The teens had requested that the COGCC not issue any more permits for oil and gas drilling without scientific evidence that the activity "does not adversely impact human health and does not contribute to climate change."
The COGCC rejected the petition, maintaining that setting such a standard was beyond the agency's statutory authority. Denver District Court Judge Eric Elliff also ruled against the teens, declaring that the COGCC is merely required to "strike a balance" between oil and gas development and protecting public health, the environment and wildlife.
The plaintiffs contend that the COGCC approach isn't really "balanced," maintaining that they couldn't find a single instance where a permit was denied for health or environmental reasons. And the appeals court overruled Elliff, saying that state law "mandates that the development of oil and gas in Colorado be regulated subject to the protection of public health, safety, and welfare, including the protection of the environment and wildlife resources."
The three-judge panel didn't rule on the merits of the rule change the teens were proposing. But the basic finding that the COGCC has been misapplying the law — assuming that it withstands future appeals — could open the door for fracking opponents to seek more stringent conditions for future drilling permits.
That's a big deal, because, as we've previously reported, county and municipal officials have been treading cautiously when dealing with fracking operations, uncertain over how much local control can be exerted, in the wake of Colorado Supreme Court decisions overturning a long-term moratorium in Fort Collins and an outright ban in Longmont. Recently, Colorado Attorney General Cynthia Coffman filed a lawsuit against Boulder County, too, claiming that its long-running moratorium on new rigs usurps the authority of the COGCC to oversee drilling operations. Last month, Broomfield's city council flirted with, then ultimately killed, a proposal for a short-term moratorium in the wake of a proposal by one company to drill up to 139 wells at four sites near residential areas.
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Just how COGCC will respond to the rejection of its balancing test isn't clear. But for the young plaintiffs in the current suit, closely affiliated with the Boulder-based activist group Earth Guardians, this week's decision is something to Tweet about.