On Tuesday afternoon, February 21, in what promises to be an unusually well attended and closely watched session of the otherwise staid Colorado Court of Appeals, attorneys for six underage plaintiffs will be arguing that the state's oil-and-gas regulators should be doing more — a hell of a lot more — to protect Colorado's children from the real and potential ill effects of the fracking industry.
The lawsuit is one of several that have been filed around the country on behalf of young litigants, charging that state and federal agencies aren't truly looking out for them (and future generations) in the way they issue drilling permits for oil and natural gas. Each one is a broadside against America's ongoing reliance on fossil fuels, decrying a range of adverse consequences, from pollution-related respiratory ailments to environmental degradation and climate change. But the legal challenge unfolding in Colorado may well attract far-flung press coverage for several reasons.
First, there's the irresistible (from a media standpoint) David-vs.-Goliath nature of the case. In one corner, you've got the powerful Colorado Oil and Gas Conservation Commission (COGCC), which has rebuffed every attempt to challenge its regulatory authority over fracking. (The American Petroleum Institute and the Colorado Petroleum Association have also intervened in the case on the industry's behalf.) On the other side is Earth Guardians, a Boulder-based nonprofit that promotes youth activism in the quest for "greener policy from our world's leaders." Two of the plaintiffs in the suit are sixteen-year-old Xiuhtezcatl Martinez, EG's highly telegenic youth director and "indigenous hip-hop artist" (as seen in Rolling Stone and on VICE), and his younger brother, Itzcuauhtli; their mother, Tamara Roske, founded Earth Guardians at an experiential-learning high school in Maui 25 years ago. Environmental writer Bill McKibben calls Xiuhtezcatl "an impressive spokesman for a viewpoint the world needs to hear.”
Second, there's the political and legal circumstances under which the hearing is taking place. While the Trump administration and the GOP-dominated Congress are seeking to repeal the limits on methane emissions for drilling on federal lands set in the Obama years, Colorado's relatively tough standards remain in place. At the same time, local attempts to impose bans or moratoria on new drilling permits have been overturned by state courts, reinforcing the COGCC's authority to regulate such matters. EG's attempt to compel the agency to stop issuing permits, arguing that public health and welfare are at stake, was thrown out last spring by Denver District Court Judge Eric Elliff, who ruled that the commission is required to "strike a balance" between oil and gas development and protecting public health, the environment and wildlife.
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It's that line of reasoning that is under attack in the current appeal. The plaintiffs contend that the COGCC has an obligation to prioritize public safety over the industry's interests and has failed to do so. A recent study, drawing on work by Colorado State University researchers, linked ozone smog from oil and gas production to more than 750,000 summertime asthma attacks in children under the age of eighteen. Colorado was the third-worst state in the country for the pollution-related attacks, with more than 32,000 such incidents annually.
"These Plaintiffs are too young to vote, yet they are the next generation, and the Colorado that they [inherit] should not be a Colorado irreversibly degraded due to unchecked oil and gas development," the Earth Guardians attorneys state in their appeal brief.
Oral arguments are scheduled for 1:30 p.m., February 21, in Division Five of the Colorado Court of Appeals, 2 East 14th Avenue, and should also be aired live on the appellate court's website.