Colo. Oil & Gas Conservation Comm'n v. Martinez

Decision Date14 January 2019
Docket NumberSupreme Court Case No. 17SC297
Parties COLORADO OIL AND GAS CONSERVATION COMMISSION, American Petroleum Institute, and Colorado Petroleum Association, Petitioners, v. Xiuhtezcatl MARTINEZ, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, Jamirah DuHamel, and Emma Bray, Minors Appearing by and Through Their Legal Guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray, Respondents.
CourtColorado Supreme Court

Attorneys for Petitioner Colorado Oil and Gas Conservation Commission: Philip J. Weiser, Attorney General, John E. Matter, Jr., Senior Assistant Attorney General, Marian C. Larsen, Assistant Attorney General, Kyle W. Davenport, Assistant Attorney General, Denver, Colorado

Attorneys for Petitioners American Petroleum Institute and Colorado Petroleum Association: Hogan Lovells US LLP, Jennifer L. Biever, Jessica Black Livingston, Dale Ratliff, Denver, Colorado, Hogan Lovells US LLP, Catherine E. Stetson, Washington, District of Columbia, Ryley Carlock & Applewhite, Richard C. Kaufman, Julie A. Rosen, Matthew K. Tieslau, Denver, Colorado

Attorneys for Respondents: Katherine Merlin, Boulder, Colorado, Wild Earth Advocates, Julia Olson, Eugene, Oregon, MindDrive Legal Services, LLC, James Daniel Leftwich, Boulder, Colorado

Attorneys for Amici Curiae Alliance of Nurses for Healthy Environments & Physicians for Social Responsibility: Earthjustice, Joel Minor, Michael S. Freeman, Denver, Colorado

Attorneys for Amicus Curiae The Board of County Commissioners of Adams County, Colorado: Heidi Miller, Adams County Attorney, Brighton, Colorado, Goldman, Robbins, Nicholson & Mack, P.C., Jeffery P. Robbins, Durango, Colorado

Attorneys for Amicus Curiae The Chamber of Commerce of the United States of America: Kittredge LLC, Daniel D. Domenico, Michael Francisco, Denver, Colorado

Attorneys for Amicus Curiae The Colorado Alliance Mineral and Royalty Owners: Visani Bargell LLC, Cynthia L. Bargell, Dillon, Colorado

Attorneys for Amici Curiae Colorado Farm Bureau, Denver Metro Chamber of Commerce, Associated Governments of Northwest Colorado, and Town of Rangely, Colorado: Brownstein Hyatt Farber Schreck, LLP, Julia E. Rhine, Denver, Colorado

Attorneys for Amicus Curiae Colorado League of Women Voters: Law Offices of Angelique Layton Anderson, Angelique Layton Anderson, Louisville, Colorado

Attorneys for Amicus Curiae Colorado Oil & Gas Association: Brownstein Hyatt Farber Schreck, LLP, Mark J. Mathews, Denver, Colorado

Attorneys for Amici Curiae Colorado PTA, Together Against Neighborhood Drilling, Dr. Stephanie Malin, Stacia Ryder, Shirley Smithson, and Ulrike Webster: Berg Hill Greenleaf Ruscitti LLP, Rudy E. Verner, Megan Gutwein, Boulder, Colorado

Attorneys for Amicus Curiae League of Oil and Gas Impacted Coloradans: Chiropolos Law, Mike Chiropolos, Boulder, Colorado

Attorneys for Amici Curiae Local Governments: Boulder County, David Hughes, Deputy County Attorney, Katherine A. Burke, Senior Assistant County Attorney, Boulder, Colorado, City of Boulder, Thomas A. Carr, City Attorney, Boulder, Colorado, City and County of Broomfield, Patricia W. Gilbert, City and County Attorney, Broomfield, Colorado, City of Commerce City, Robert D. Sheesley, City Attorney, Commerce City, Colorado, Eagle County, Bryan Treu, Eagle County Attorney, Eagle, Colorado, Town of Erie, Hoffmann, Parker, Wilson, & Carberry, P.C., Kendra L. Carberry, Evin B. King, Denver, Colorado, City of Fort Collins, Carrie Mineart Daggett, City Attorney, Fort Collins, Colorado, Gunnison County, David Baumgarten, Gunnison County Attorney, Matthew Hoyt, Assistant County Attorney, Gunnison, Colorado, City of Lafayette, Williamson & Hayashi, LLC, David S. Williamson, Boulder, Colorado, City of Longmont, Daniel Kramer, Assistant City Attorney, Longmont, Colorado, City of Louisville, Light Kelly P.C., Samuel J. Light, Denver, Colorado, Pitkin County John Ely, Pitkin County, Attorney, Aspen, Colorado, San Miguel County, Amy T. Markwell, San Miguel County Attorney, Telluride, Colorado, Summit County, Jeffrey L. Huntley, Summit County Attorney, Breckenridge, Colorado, City of Westminster David Frankel, City Attorney, Westminster, Colorado

Attorney for Amicus Curiae Mountain States Legal Foundation: Cody J. Wisniewski, Lakewood, Colorado

Attorneys for Amici Curiae The National Association of Manufacturers, the National Federation of Independent Business Small Business Legal Center, the Colorado Association of Commerce & Industry, and the Independent Petroleum Association of America: Lewis Bess Williams and Weese P.C., Ezekiel J. Williams, Carlos R. Romo, Denver, Colorado

Attorney for Amicus Curiae Northwest Colorado Council of Governments: Torie Jarvis, Silverthorne, Colorado

Attorneys for Amici Curiae Our Health, Our Future, Our Longmont; Sierra Club; Earthworks; Food & Water Watch; Conservation Colorado; Weld Air & Water; and Wall of Women: Environmental Law Clinic, University of Denver Sturm College of Law, Timothy Estep, Kevin Lynch, Denver, Colorado

Attorneys for Amici Curiae 350 Colorado; Be the Change; Broomfield Clean Air and Water; Broomfield Moms Active Community; Center for Biological Diversity; Citizens for a Healthy Community; Citizens for Huerfano County; Clean Energy Action; Colorado Rising; Earth Guardians; Eco-Justice Ministries; Erie Protectors; Front Range Residents for Environment, Safety and Health; Loretto Earth Network; North Range Concerned Citizens; Northern Colorado Community Rights Network; Our Health, Our Future, Our Longmont; Protect Our Loveland; Transition Fort Collins; and Wall of Women Colorado: Western Environmental Law Center Kyle Tisdel, Taos, New Mexico

Attorneys for Amicus Curiae Vital for Colorado: Holland & Hart LLP, Stephen G. Masciocchi, Denver, Colorado, Robinson, Waters & O'Dorisio PC, Peter T. Moore, Kimberly Bruetsch, Denver Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 Respondents Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, Jamirah DuHamel, and Emma Bray are youth activists who have devoted substantial time and effort toward pursuing their goal of protecting the health of Colorado citizens and Colorado's environment. The court acknowledges the civic engagement of these young men and women as well as the concerns that motivated this action, and nothing in this opinion should be construed as expressing a view as to the merits of Respondents' concerns, or, conversely, as to the merits of the Colorado Oil and Gas Conservation Commission's (the "Commission's") interest in fostering the responsible, balanced development, production, and utilization of Colorado's oil and gas resources.

The resolution of these weighty and sometimes conflicting policy concerns, however, is not the issue before us. Rather, this case requires us to decide whether, in accordance with the Colorado Oil and Gas Conservation Act (the "Act"), section 34-60-102(1)(a)(I), C.R.S. (2018), the Commission properly declined to engage in rulemaking to consider a rule proposed by Respondents, which we view as a far narrower question.

¶2 Respondents proposed a rule that, among other things, would have precluded the Commission from issuing any permits for the drilling of an oil and gas well "unless the best available science demonstrates, and an independent, third-party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change."

¶3 After soliciting and receiving public comment and allowing interested parties to be heard, the Commission declined to engage in rulemaking to consider this proposed rule because, among other things, (1) the rule would have required the Commission to readjust the balance purportedly crafted by the General Assembly under the Act and conditioned new oil and gas drilling on a finding of no cumulative adverse impacts, both of which the Commission believed to be beyond its statutory authority, and (2) the Commission was already working with the Colorado Department of Public Health and Environment ("CDPHE") to address the concerns to which the rule was directed and other Commission priorities took precedence over the proposed rulemaking at this time.

¶4 Respondents challenged the Commission's ruling in the Denver District Court, but that court ultimately upheld the Commission's decision. Respondents appealed, and, in a split, published decision, a division of the court of appeals reversed the district court's order. Martinez v. Colo. Oil & Gas Conservation Comm'n , 2017 COA 37, ––– P.3d ––––. We then granted certiorari.1

¶5 We now conclude, contrary to the division majority below, that the Commission properly declined to engage in rulemaking to consider Respondents' proposed rule. We reach this conclusion for three primary reasons. First, our review of an administrative agency's decision as to whether to engage in rulemaking is limited and highly deferential. Second, in our view, the Commission correctly determined that, under the applicable language of the Act, it could not properly adopt the rule proposed by Respondents. Specifically, as the Commission recognized, the pertinent provisions do not allow it to condition all new oil and gas development on a finding of no cumulative adverse impacts to public health and the environment. Rather, the provisions make clear that the Commission is required (1) to foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers, and (2) in doing so, to prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, but only after taking into consideration cost-effectiveness and technical feasibility. Finally, in declining to engage in rulemaking, the...

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