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Denver judge asked to crack down on drilling permits that don’t require health and safety protections

Many residents of Broomfield, Colorado, aren't fond of fracking going on in their neighborhood, but they're especially displeased the state dropped requirements meant to protect their health and safety.

(CN) — A group of Colorado neighbors asked a Denver judge on Friday to vacate oil and gas drilling permits in the suburbs of Broomfield that they say disregarded practices meant to protect public health, safety and environment.

The Wildgrass Oil and Gas Committee first sued the Colorado Oil and Gas Conservation Commission in 2018 asking the state to require Extraction Oil and Gas to follow best management practices as a condition of receiving permits to drill in the suburban community.

The city and county of Broomfield, located 15 miles north of Denver, approved a proposal from Extraction to drill for oil and gas in 2018, much of which has and is occurring.

When Wildgrass residents received notice of the 120 wells initially proposed across 10,000 neighboring acres, many banded together to oppose the project. Between 2018 and 2021, Wildgrass sued the state Oil and Gas Conservation Commission three times in Denver District Court and once in federal court, which was reviewed by the 10th Circuit.

Under state law, best management practices are "designed to prevent or reduce impacts caused by oil and gas operations to air, water, soil, or biological resources, and to minimize adverse impacts to public health, safety and welfare, including the environment and wildlife resources."

While Broomfield required several best management practices in its contract with Extraction, the Wildgrass group also sought to have the state require them as a condition of permit approval. Wildgrass reasoned that the state agency could respond much more quickly and reliably to actions putting resident health at risk than the city could through the courts.

In Denver District Court on Friday, attorney Katherine Merlin argued on behalf of Wildgrass that the state agency’s removal of best management practices from Extraction’s permits was arbitrary and capricious, and therefore violated the law.

“We believe the agency’s actions here, slashing and burning best management practices and approving permit applications without best management practices, were arbitrary and capricious,” Merlin said.

Second Judicial District Judge Sarah B. Wallace asked Merlin to identify which excluded practices were most important in protecting the residents and surrounding environment.

“I would turn that around and say the principles of agency law say it’s the agency’s job to explain the record,” Merlin replied. “We’ve been here for five years arguing this case, but the COGCC could have a much faster turnaround to tell the company to knock it off if it was violating best management practices.”

Julia Rhine, an attorney with Brownstein Hyatt Farber Schreck, represented Extraction Oil and Gas as an intervening party. Rhine argued that best management practices are more stringent than state law, so they shouldn’t be required to obtain permits.

“Plaintiff wants to be a third-party beneficiary of an agreement of which it is not a party,” Rhine countered. “The contract was between Extraction and the city and county of Broomfield.”

On behalf of the state, Assistant Attorney General Lauren Mercer said the agency removed dozens of best management practices from Extraction’s permits either because they were enforced by other state and federal agencies or because the Oil and Gas Conservation Commission lacked the ability to enforce them.

“Under the Administrative Procedure Act, the Colorado Oil and Gas Conservation Commission was ordered to assess the permits under the law,” Mercer argued. “The agency wasn’t making unguided decisions, it was applying the act and the rules.”

Judge Wallace asked whether the agency bears the burden to explain its actions.

“Isn’t that like your kids saying ‘why, why, why,’ and you say ‘because I said so?’” Wallace asked.

Mercer chuckled at the metaphor, but disagreed.

“I’m unaware of any standard that would require a point-by-point explanation,” Mercer said. “The Colorado Oil and Gas Conservation Commission has met and exceeded the requirement to show its work.”

Wallace, an appointee of Democratic Governor Jared Polis, took the arguments under advisement. She did not indicate how she would decide the case, but that she would do so as expeditiously as possible.

Since the original lawsuit was filed, the Colorado Legislature approved a law giving more weight to public health, safety and environment in the Oil and Gas Conservation Commission’s decision making process. While best management practices can now be included at the permitting stage, the agency still decides which to include and exclude.

Merlin said the practices are meant to protect the community and environment from adverse effects of drilling, particularly when it hits close to home.  

“Residential fracking is not a phrase that should exist in the English language,” Merlin said in an interview. “These operations are major heavy industrial sites that are highly polluting, dangerous, and expose nearby residents to unreasonable threats of hazards like fires and explosions.”

Attorneys representing Extraction declined to comment on the case, as did representatives for the state.

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