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Environmental Hysteria Threatens All Oil and Gas Development in Colorado

Apr 02, 2018 | by William Perry Pendley

Mountain States Legal Foundation asks Colorado Supreme Court to overturn Court of Appeals decision that subordinates oil and gas property rights to speculative environmental alarmism.

DENVER, CO.  An unprecedented decision from the Colorado Court of Appeals threatens to shut down all new oil and gas development in Colorado due to alarmism over so-called climate change.  In response, today Mountain States Legal Foundation (MSLF) filed a brief with the Colorado Supreme Court asking it to protect property owners by restoring the longstanding system of oil and gas regulation enacted by the Colorado General Assembly.  MSLF argues that the Court of Appeals’ decision makes oil and gas property rights subordinate to the most remote and speculative of environmental fears, thus killing the industry in Colorado.      

“The dangers of so-called climate change are the epitome of ‘remote and speculative’ yet the Court of Appeals not only accepted the plaintiffs’ hysterical fears as real but also demanded property owners disprove them before using their land,” said William Perry Pendley, MSLF president.  “This neither makes sense nor is consistent with Colorado law.”

In late 2013, several minors, through their legal guardians, filed a petition for rulemaking with the Colorado Oil and Gas Conservation Commission (“Commission”), which is tasked with regulating oil and gas production throughout Colorado.  The minors sought to ban all new oil and gas drilling permits in the State of Colorado unless the Commission could prove that drilling would not adversely impact human health and does not contribute to climate change.  Both the Commission and the Denver District Court agreed the Commission lacks legal authority to issue such a rule.  On appeal, however, the Colorado Court of Appeals ruled that, under Colorado law, the right to develop oil and gas resources is totally subordinate to environmental fears. 

The Colorado Oil and Gas Conservation Act requires the Commission to balance the need for energy development with environmental and public health concerns.  In fact, it directs the Commission to “[f]oster the responsible, balanced development, production, and utilization of … oil and gas … in a manner consistent with protection of public health, safety and welfare, including protection of the environment and wildlife.”  In its ruling, for the first time ever, the Court of Appeals interpreted the phrase “in manner consistent with” as meaning “subject to,” which abandoned the General Assembly’s balancing test and instituted a new scheme requiring the Commission to deny all drilling permits unless property owners can prove that exploration and development will have no environmental effects—a nearly impossible hurdle. 

In addition to violating well-established rules for how courts interpret laws, the Court of Appeals’ ruling deprives existing oil and gas property owners of their constitutionally protected property rights.  It also potentially subjects Colorado taxpayers to billions of dollars in liability for the government’s seizure (“unconstitutional taking”) of their property rights. 

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Colorado Oil and Gas Conservation Commission v. Martinez

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