Colorado Teens Score Legal Victory in Fracking Fight

DENVER (CN) – The Colorado Court of Appeals ruled last week that the Colorado Oil and Gas Conservation Commission has the authority to halt the use of hydraulic fracturing to extract oil and gas until the state can prove the practice is safe.

The rule, proposed by a group of Colorado teenagers who represent the interests of the nonprofit Earth Guardians, was dismissed by the Colorado Oil and Gas Conservation Commission in 2014. The commission said the Oil and Gas Conservation Act obligated its board to prioritize “balance” between public safety and oil and gas development, rather than leaning towards either. Because the teens’ petition would ban the process – commonly known as “fracking” – until it was proven safe, the commission said such a balance could not be struck.

Denver County District Court Judge Eric Elliff affirmed the commission’s decision in 2014, finding the teens’ petition would force the commission to readjust the act’s balance rule.

The teens appealed and in a March 23 decision, the Colorado Court of Appeals found 2-1 that the commission does have the authority to address the petition, and remanded the proceedings to Elliff’s court.

The 31-page opinion, written by Judge Terry Fox, says the commission’s interpretation of the act is incorrect.

“The commission has the authority to regulate ‘[o]il and gas operations so as to prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, taking into consideration cost-effectiveness and technical feasibility,]’” which “demonstrates that the act calls for the balance that the commission read into,” Fox wrote.

But Fox added the act’s language tends to “elevate” the importance of public health.

“The General Assembly’s use of the phrase ‘to the extent necessary to protect public health, safety, and welfare,’ when describing the purpose of regulation, evidences a similar intent to elevate the importance of public health, safety, and welfare above a mere balancing,” Fox wrote.

“The act clearly states that fostering ‘responsible, balanced development, production, and utilization of the natural resources’ is in the public interest. Then, the act qualifies itself by adding the key phrase ‘in a manner consistent with’ the protection of public health and other related concerns.”

Judge JoAnn Vogt concurred with the opinion. But Judge Laurie Booras dissented, writing the act’s phrase “in a manner consistent with” was still being taken out of context.

“The majority examines the use of the phrase ‘in a manner consistent with’ in a number of unrelated contexts, largely relying on remand language from opinions, and surmises that it does not indicate ‘balancing,’ but rather ‘a condition that must be fulfilled’ or ‘subject to,’” Booras wrote.

“But Webster’s Third New International Dictionary defines ‘consistent with’ as ‘to be consistent, harmonious, or in accordance.’ Contrary to the majority’s supposition, these definitions signify a balancing process.”

In a statement issued Thursday, Department of Natural Resources spokesman Todd Hartman said the decision “does not require the commission to adopt the proposed rule or necessarily take up the requested rulemaking, only that the rulemaking can’t be denied on the standard the commission applied.”

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