Our Children’s Trust has represented and supported young people in Colorado since 2011, including the climate lawsuit Martinez v. Colorado Oil & Gas Conservation Commission and - most recently - a petition for rulemaking submitted to the Colorado Oil and Gas Conservation Commission (COGCC) in November 2019 and the COGCC’s ongoing rulemaking to implement the mandates of Senate Bill 19-181.
The youth petitioners are represented by Nate Bellinger with Our Children’s Trust.
Current Status:
In November 2020, the COGCC finalized its rules that are intended to protect public health, safety, welfare, the environment, and wildlife resources from oil and gas development. In his closing remarks Chair Robbins acknowledged the contributions of the Colorado youth OCT represented in the rulemaking: "I as Chair and the Commission as a whole thanks the Our Children’s Trust petitioners for their sincere thoughtful and passionate petition, their pleadings and their presentations in this rulemaking. . . . We hope you will stay engaged and work with us as we implement these rules to protect public health, safety, welfare, the environment, and wildlife resources."
While the COGCC's final rules did include some of the requests made by Earth Guardians and Our Children's Trust to better quantify GHG emissions attributable to Colorado's oil and gas sector, unfortunately, the final rules fail to require adequate reductions in GHG emissions from the oil and gas industry. Our Children's Trust is continuing to work with Colorado youth to ensure that the state fulfills its legal obligations to protect their health and the environment and reduces its GHG emissions to levels consistent with the best available science.
TIMELINE:
The following is a timeline of major moments, filings, and rulings in Colorado legal actions, from 2013 to today:
“November 15, 2013: Petition for Rulemaking Filed
Eight young Colorado activists, all members of the Boulder-based climate organization Earth Guardians and including Xiuhtezcatl Martinez, rallied at the State Capitol and then marched to the COGCC office to hand-deliver a petition for rulemaking . The petition called for the COGCC to promulgate rules to suspend the issuance of permits that allow hydraulic fracturing until it can be done without adversely impacting human health and safety and without impairing Colorado’s atmospheric resource and climate system, water, soil, wildlife, and other biological resources. ”
“April 28-29, 2014: Public Hearings Held
The COGCC held a public hearing to consider the rulemaking petition.”
“May 29, 2014: Petition Denied
The COGCC issued a written decision denying the petition for rulemaking.”
“July 3, 2014: Appeal and Martinez v. Colorado Oil & Gas Conservation Commission Filed
Attorneys for seven youth plaintiffs filed a lawsuit in the Denver District Court to overturn the COGCC decision. The plaintiffs’ complaint - Martinez v. Colorado Oil & Gas Conservation Commission - alleged that the Commission erred as a matter of law in concluding that it lacked the authority to promulgate the proposed rule as well as that the COGCC has a legal responsibility and obligation to protect the health and safety of Colorado’s residents and preserve Colorado’s air, water, wildlife, and land from harm due to oil and gas operations, including fracking.”
“November 14, 2014: Oral Arguments on Motion to Dismiss
The Denver District Court heard oral arguments on the COGCC’s Motion to Dismiss the case.”
“December 24, 2014: Motion to Dismiss Denied
The Denver District Court ruled in favor of the youth plaintiffs, rejecting the COGCC’s arguments that the case should be dismissed and ordering that the case proceed on its merits. ”
“April 7, 2015: Opening Brief and Amicus Brief Filed
Plaintiffs filed the opening brief in their case to the Denver District Court. In addition, an amicus curiae (“friend of the court”) brief was filed in support of the case on behalf of organizations, individuals, and the science and faith community in Colorado.”
“February 9, 2016: Court Affirms Denial
Denver District Court Judge J. Eric Elliff affirmed the COGCC order to deny the case brought by the youth plaintiffs, stating that the Commission is required to “strike a balance between the regulation of oil and gas operations and protecting public health, the environment, and wildlife resources.” ”
“April 4, 2016: Notice of Appeal Filed
Plaintiffs filed a Notice of Appeal with the Denver District Court.”
“August 18, 2016: Opening Brief and Amicus Briefs Filed
Attorneys for the youth plaintiffs filed their opening brief in Martinez et al., v. Colorado Oil and Gas Conservation Commission. Two amicus curiae briefs were also filed to the Colorado Court of Appeals in support of the youth: one filed on behalf of business interests, faith communities, medical professionals, and other citizens of Colorado and a second filed on behalf of environmental organizations from across the state.”
“February 20, 2017: The People March
The day before oral arguments commenced at the Colorado Court of Appeals, over 300 people from organizations and communities across the state of Colorado attended a rally and march in support of the youth plaintiffs.
(Photo: O’Rourke Photography)”
“February 21, 2017: Oral Arguments
Presided over by Judges Fox, Vogt and Booras, the Colorado Court of Appeals heard oral arguments in Martinez et al., v. Colorado Oil and Gas Conservation Commission. Representing the youth plaintiffs, Julia Olson of Our Children’s Trust argued that the COGCC has a statutory and constitutional obligation to prioritize the protection of the environment and public health over oil and gas development. The Colorado anti-fracking community and other members of the public filled the courtroom and an overflow room. A recording of the hearing can be watched here . ”
“March 23, 2017: A Major Victory!
In a 2-1 decision, the Colorado Court of Appeals reversed the COGCC’s order denying the youth-led case, as well as a lower court’s order upholding that denial. The Court remanded the case to the district court and the COGCC, finding that the COGCC erred in its interpretation of Colorado law. ”
“May 15, 2017: Petitions for Writ of Certiorari Filed by Defense
The COGCC filed a petition for writ of certiorari. An additional petition for writ of certiorari was filed by the American Petroleum Institute (API) and the Colorado Petroleum Association (CPA).”
“June 29, 2017: Opposition Brief and Amicus Briefs Filed
Attorneys representing the plaintiffs filed their opposition brief to the petitions for cert filed by the COGCC, API, and CPA. Three amicus briefs were also filed in support of the youth plaintiffs on behalf of 1) 350 Colorado ; 2) Our Health, Our Future, Our Longmont; Sierra Club; Earthworks; and Food & Water Watch ; and 3) Boulder County, San Miguel County, the City of Boulder, Gunnison County, the NWCCOG, the City of Lafayette, and the Town of Erie .”
“January 29, 2018: Cert Granted
The Colorado Supreme Court granted the defense’s petition for writ of certiorari.”
“May 25, 2018: Answer Brief and Amicus Briefs Filed
Attorneys for the youth plaintiffs filed their Answer Brief to the Colorado Supreme Court. In their brief, youth plaintiffs asked the Colorado Supreme Court to affirm the victory they secured at the Court of Appeals on March 23, 2017, and hold that the COGCC has an obligation to protect public health, safety, and welfare from oil and gas development and operations. Nine amicus briefs were also filed in support of the youth plaintiffs by the following groups: 1) Northwest Colorado Council of Governments ; 2) 350 Colorado et. al. ; 3) Board of County Commissioners of Adams County ; 4) Local Governments ; 5) Colorado PTA; Together Against Neighborhood Drilling; Dr. Stephanie Malin; Stacia Ryder; Shirley Smithson; and Ulrike Webster ; 6) Colorado League of Women Voters ; 7) Our Health, Our Future, Our Longmont; Sierra Club; Earthworks; Food & Water Watch; Conservation Colorado; Weld Air & Water; and Wall of Women ; 8) Alliance of Nurses for Healthy Environments & Physicians for Social Responsibility ; and 9) the League of Oil and Gas Impacted Coloradans .”
“October 16, 2018: Oral Arguments
The Colorado Supreme Court heard oral arguments in Martinez et al., v. Colorado Oil and Gas Conservation Commission in a packed courtroom.”
“January 14, 2019: Colorado Supreme Court Ruling
The Colorado Supreme Court reversed the Colorado Court of Appeals decision and found that the COGCC cannot condition oil and gas development on protecting public health, safety, and welfare and the environment. Justice Gabriel, in a unanimous decision, acknowledged the civic engagement and concerns of the youth plaintiffs’ and even found that their interpretation of the Act, which would have required the COGCC to prioritize public health over oil and gas development, was reasonable. However, the Court ultimately rejected plaintiffs’ reasonable interpretation of the Act, determined that the Act was ambiguous, and held that the COGCC did not have authority to promulgate a rule protecting public health if it precluded new oil and gas development. ”
“January 24, 2019: Extraordinary Motion
Attorneys for the youth plaintiffs filed an extraordinary motion with the Colorado Supreme Court asking the Court to vacate its January 14th decision and the 2017 Court of Appeals decision based upon the misconduct of a judge who was on the Court of Appeals panel. Declarations were also filed by lead plaintiff Xiuhtezcatl Martinez and his attorney Julia Olson .”
“January 28, 2019: Extraordinary Motion Denied by Court
In a one sentence decision, the Colorado Supreme Court denied the youth plaintiffs’ January 24 motion. ”
“February-April 2019: Coloradans Respond to Supreme Court loss
Disappointed by the Supreme Court’s decision and the ongoing dangers of Colorado’s oil and gas development, youth plaintiffs and supporters from across Colorado responded with a concerted effort to amend Colorado’s Oil and Gas Conservation Act, the law at the center of the Martinez case, to make clear that protecting public health and the environment is the COGCC’s primary obligation, not promoting oil and gas development. ”
“April 16, 2019: Governor Signs SB 19-181
With a youth plaintiff in attendance, Colorado Governor Jared Polis signed SB 19-181, a bill “concerning additional welfare protections regarding the conduct of oil and gas operations,” making important amendments to the Colorado Oil and Gas Conservation Act (Act). Among other important changes to the Act, SB 19-181 made clear that the COGCC must protect public health and the environment from oil and gas development; clarifies that the nonproduction of oil and gas does not constitute “waste;” eliminates the requirement that protections for public health and the environment take into consideration cost-effectiveness and technical feasibility; and gives more control over oil and gas operations to local governments. These amendments reinforced and vindicated the legal arguments made by the youth plaintiffs in Martinez et al., v. Colorado Oil and Gas Conservation Commission.”
“May 30, 2020: Governor Sign HB 19-1261
Governor Jared Polis signed HB 19-1261 declaring that “climate change adversely affects Colorado’s economy, air quality and public health, ecosystems, natural resources, and quality of life” and setting a goal of eliminating statewide greenhouse gas (GHG) pollution by mid-century. ”
“November 8, 2019: Petition for Rulemaking Filed
To ensure that SB 19-181 is properly implemented, over 60 Colorado youth filed a petition for rulemaking calling on the COGCC to enact new, science-based, rules that are consistent with protecting Coloradans’ public health, safety, and welfare from oil and gas development and climate change. ”
“May 22 - August 14, 2020: COGCC Rulemaking Filings
Our Children’s Trust, on behalf of the 65 youth petitioners that filed the November 2019 petition for rulemaking, and Earth Guardians submitted a series of comments, expert testimony, proposed rule changes, and legal arguments to the COGCC regarding its ongoing rulemaking. The Commission’s rulemaking is intended to implement the mandates of SB 19-181 and protect public health and the environment from dangerous oil and gas operations. However, the Commission’s draft rules (and ongoing permitting of dangerous oil and gas operations) still do not adequately align with its new mandate to prioritize protections for public health and the environment and to address the cumulative impacts of oil and gas operations on the climate crisis. ”
“August 24-September 28, 2020: COGCC Hearings
The COGCC heard presentations from dozens of parties on proposed changes to their rules that are intended to protect public health and the environment from Colorado’s oil and gas development. Our Children’s Trust Senior Attorney Nate Bellinger presented three separate times pressing the COGCC to adopt rules that address the oil and gas industry’s contributions to the climate crisis and are consistent with the state’s GHG reduction targets. As part of the hearings, the Colorado Oil and Gas Conservation Commissioners deliberated proposed rule changes and directed staff to make certain changes to the rules.”
“TODAY: Planning Next Steps
Our Children’s Trust is continuing to work with Colorado youth to ensure that the state fulfills its legal obligations to protect their health and the environment and reduces its GHG emissions to levels consistent with the best available science.
To learn more or if you are interested in getting involved in our Colorado work contact Jecca Bowen, Youth Litigation Mobilization Coordinator with Earth Guardians, at jecca@earthguardians.com. jecca@earthguardians.com.”