After Court Defeat, Anti-Fracking Activists Turn to Polis and Lawmakers for Reforms

The Colorado Supreme Court issued a final ruling in the so-called Martinez case, delivering a major victory for the oil and gas industry.
As 2019 gets into full swing, Colorado Democrats find themselves in a bind — caught between rising pressure from constituents to act against oil and gas drillers and the potential consequences of upsetting an industry with deep pockets and enormous influence at the Capitol. On Monday, January 14, Governor Jared Polis and Democratic lawmakers got confirmation that the Colorado Supreme Court wouldn’t be taking this problem out of their hands.

The state's highest court issued a final ruling in the so-called Martinez case, reversing a decision by the state’s Court of Appeals and delivering a major victory for the oil and gas industry. The ruling brings an end to a five-year-long legal battle over the health and safety standards that must be applied by the Colorado Oil and Gas Conservation Commission when it considers new drilling permits, affirming a status quo long criticized by environmentalists and neighborhood groups as heavily tilted in the industry’s favor.

“It’s upsetting, but it’s also not surprising,” Xiuhtezcatl Martinez, the lead plaintiff in the case, told Westword at the Capitol following the ruling. “At every level of power, we’re seeing gross negligence: from elected officials, from governors, from state representatives, and now from these Supreme Court justices.”

In 2014, Martinez and five other youth activists petitioned the COGCC to impose stricter environmental standards in its permitting process, arguing that current state law requires it to prioritize health, safety and climate impacts over all other concerns. The COGCC disagreed with this interpretation of the law, and Martinez and his fellow plaintiffs, with the help of a broad coalition of environmental organizations, sued the agency in state court.

In Monday’s ruling, the Colorado Supreme Court sided with the agency’s argument that state law requires a “balance” between health and safety concerns and the development of the state's oil and gas resources. And some environmental activists say that proves what they’ve been saying all along.

“This decision validates all of our concerns that the state is not adequately protecting public health and the regulations are insufficient,” says Anne Lee Foster, spokeswoman for the anti-fracking group Colorado Rising. “It is hard proof that the law is written against the best interests of the people and in favor of oil and gas industry profits.”

click to enlarge Xiuhtezcatl Martinez was a plaintiff in the lawsuit challenging fracking rules in Colorado. - TAMARA ROSKE
Xiuhtezcatl Martinez was a plaintiff in the lawsuit challenging fracking rules in Colorado.
Tamara Roske
With arguments over how to interpret the law now settled by the courts, the path forward for fracking opponents is clear: Change the law altogether. Following the ruling, many top Democrats signaled their willingness to settle the issue by overhauling the state’s regulatory framework for oil and gas drilling.

“While I am disappointed in the decision, it gives us at the legislature an opportunity to finally put health and safety first with oil and gas operations,” said Senator Mike Foote, a Longmont Democrat and a longtime critic of the oil and gas industry, in a statement on Monday. “I am confident that my colleagues and I will come forward with legislation to do exactly that.”

Activists have long assailed the COGCC for being too closely aligned with the interests of the fossil-fuel industry. By law, the agency is charged with “fostering” oil and gas development in the state, and three of its seven appointed commissioners are required to be current or former industry employees, while another must be a mineral-rights owner who earns royalties from oil and gas production. Its permitting process, through which thousands of new wells are approved every year, is largely a rubber-stamp exercise; the agency is believed to have never outright denied a permit to drill in its 68-year history, the Colorado Independent reported in 2017.

All of that could change if the state legislature, now under full Democratic control for the first time since 2014, were to amend the Oil and Gas Conservation Act, the statute governing the COGCC’s mission, makeup and permitting procedures. A major overhaul of the law would be sure to meet strong opposition from the industry, and much could depend on how far Polis, who reportedly plans to take a more active role in the legislative process than his predecessor, is willing to go.

"We want to prioritize the consideration of public health and safety, as well as the environment,” Polis said in a statement following Monday’s ruling. "We are ready to work with the legislature and the Colorado Oil and Gas Conservation Commission to ensure that Coloradans are safe and that residents and neighbors have a say in where and when industrial activities take place near where they live.”

“The last eight years have been very, very difficult for protecting Colorado’s environment."

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As Colorado’s new chief executive, Polis can do a great deal without the legislature’s help, through appointments and rule-making at state agencies — and in the early days of his administration, with specific policy proposals yet to be put on the table, activists are eyeing Polis’ cabinet picks for clues as to how he plans to approach oil and gas issues.

Last week, Polis named Jill Hunsaker Ryan the new executive director of the Colorado Department of Public Health and Environment. As an Eagle County commissioner, Ryan is the president of Colorado Communities for Climate Action, a coalition of local government officials that advocates for clean-energy policy. She replaces Larry Wolk, a Hickenlooper appointee who was criticized for being too soft on the oil and gas industry, including by releasing a state health study that downplayed the risks of fracking without submitting the study for peer review.

“The last eight years have been very, very difficult for protecting Colorado’s environment,” says longtime Colorado activist Gary Wockner. “I think we will be in a much better situation under Governor Polis than we were under Governor Hickenlooper. Hopefully we have a strong step forward and we’re arguing about smaller differences rather than huge differences, which is what happened during the Hickenlooper regime.”

Polis also appointed Dan Gibbs, a Summit County commissioner and former state lawmaker, to lead the state’s Department of Natural Resources, which oversees the COGCC. Gibbs’s appointment has been cause for concern among some activists; in 2016, he co-chaired the campaign in support of Amendment 71, known as “Raise the Bar,” which successfully amended Colorado’s constitution to make citizen ballot initiatives more difficult. Raise the Bar was heavily supported by the oil and gas industry in response to the anti-fracking initiatives that nearly made the ballot in 2014.

Some of Polis’s most important hires when it comes to environmental and climate issues won’t be made until later this year; notably, the terms of four current COGCC commissioners expire on July 1. By then, it’s possible that the agency will have been overhauled through legislation. But regardless of what, if any, reforms the legislature makes, the appointments are a major opportunity for the governor to influence the direction of future oil and gas development in Colorado.

“If Governor Polis wants to make change,” says Wockner, “you’ve got to turn over the boards and commissions, and you’ve got to do it with a heavy hand. He needs to be aggressive in making the appointments, because the appointments not only set policy, they make decisions.”

In the meantime, activists from Colorado Rising, 350 Colorado and more than 180 other advocacy groups have petitioned the governor to impose a moratorium on new drilling permits until a new set of health and safety protections can be put in place. Polis is not considering such a move at this time, the governor’s office said on Monday.

Martinez and his fellow activists will continue to pressure Polis and the legislature to codify the interpretation of state law that they advanced in their lawsuit. When asked how he felt after seeing the court battle he had waged for five years end in defeat, Martinez replied with two words: “Let’s go.”

“What we’re asking for is not radical,” he continued. “It should not be seen as radical to demand that the health, safety and welfare of our people are put over corporate profit. That’s basic.”