The Colorado Supreme Court and Colorado Court of Appeals. (Jeremy Martinez, Special to The Colorado Sun)

Colorado Supreme Court hears high-stakes “Martinez case” lawsuit around oil and gas

The case revolves around how much weight energy regulators should give public health and the environment

Oct 16, 2018 9:53PM MDT Energy

By Dan Elliot, The Associated Press

An attorney for six young people who want the state to impose tougher safeguards on the energy industry told the Colorado Supreme Court on Tuesday that the law requires regulators to protect public health from the hazards of drilling.

A lawyer for the state countered that regulators acted properly when they rejected a request for stronger health protections on the grounds that they did not have the authority to impose them.

The justices heard oral arguments in the high-stakes case but did not say when they would rule.

The case revolves around how much weight energy regulators should give public health and the environment — a contentious issue in Colorado, where cities often overlap lucrative oil and gas fields and drilling rigs sit within sight of homes and schools.

The six young plaintiffs in the case asked the Colorado Oil and Gas Commission, which regulates the industry, to enact a rule that would require energy companies to show they would not harm human health or the environment before regulators issued a drilling permit.

The commission responded that it did not have that authority. Commission members said Colorado law required them to balance public safety with responsible oil and gas production.

Colorado Solicitor General Frederick R. Yarger, representing the attorney general’s office, told the Supreme Court that the commission correctly interpreted state law to mean it must consider other factors in addition to public health.

He said state law does not allow regulators to adopt a zero-impact standard for health effects.

Julia Olson, an attorney for the plaintiffs, argued that state law requires regulators to protect human health, not weigh it against other interests.

“There isn’t any discretion to balance human health on one hand and oil and gas development on the other,” she said. Any balancing requirement in the law applies only to environmental protections, not human health, she said.

If the justices side with the plaintiffs, it would significantly change the oil and gas debate in Colorado, giving local governments and activists more power to argue for safety measures, including restrictions on where wells can be drilled.

Activists are particularly concerned about hydraulic fracturing, or fracking, which uses a high-pressure mix of water, chemicals and sand to break open underground formations and release oil and gas. The industry maintains the practice is safe.

The lawsuit reached the Supreme Court amid a heated campaign over two oil and gas-related measures on the November ballot.

Proposition 112 would change state law to require that new oil and gas wells be at least 2,500 feet (750 meters) from occupied buildings and would allow local governments to require greater setbacks. Current requirements are 500 feet (150 meters) from homes and 1,000 feet (300 meters) from schools.

Amendment 74, backed by the oil and gas industry, would change the state constitution to make it easier for property owners to seek compensation from the government for actions that diminish their property’s value. Supporters say it could be used if expanded setbacks prevent drilling for oil and gas.

MORE: Read more about Amendment 74 and check out our comprehensive guide to the questions on the 2018 ballot.

Olson, the attorneys for the plaintiffs, represents a separate group of 21 young people in an environmental lawsuit scheduled for trial this month in Oregon federal court.

That lawsuit claims the U.S. government has violated the plaintiffs’ constitutional rights to life, liberty and property by taking actions that make climate change worse. Government lawyers have tried repeatedly to have the case dismissed or delayed.