On Feb. 21, the Colorado Court of Appeals will hear arguments about whether the Colorado Oil and Gas Conservation Commission has a statutory and constitutional obligation to protect the health of Colorado residents and preserve its environment. The case is being brought against the Colorado Oil and Gas Conservation Commission by six youths led by Xiuhtezcatl Martinez, a 16-year-old from Boulder.
Martinez and the other young plaintiffs, all members of the Boulder-based organization Earth Guardians, are suing the commission for not fulfilling its duty under the Colorado Oil and Conservation Act to foster oil and gas development in a manner that protects public health and the environment. They argue that the lower court’s interpretation of the commission’s authority to “balance” the development of Colorado’s oil and gas resources against the public’s health and the environment is an unconstitutional infringement on their inalienable rights to life, liberty, and property.
What the youths seek is a suspension of fracking permits until oil and gas production and development can be done without harm to human health and the environment.
Recent precedents in other jurisdictions include actions in Washington State, Pennsylvania, Massachusetts, and New York. A Washington state judge declared that “[I]f ever there were a time to recognize through action this right to preservation of a healthful and pleasant atmosphere, the time is now …” The Pennsylvania Supreme Court held that a state law meant to dramatically increase oil and gas development through fracking was unconstitutional. The Massachusetts Supreme Court, in another lawsuit brought by youth plaintiffs, ordered its Department of Environmental Protection to immediately promulgate regulations reducing the state’s greenhouse gas emissions. And after a seven-year study, the state of New York completely banned fracking due to concerns about public health and environmental impacts.
This movement may be gaining momentum. In November, a federal district court judge in Oregon published a 54-page decision not to dismiss a lawsuit filed in federal court by 21 youth plaintiffs, including Martinez, against the president of the United States and most of the federal government. “To hold otherwise,” she wrote, “would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.”
The outcome of this case is important to us. Since the Colorado Supreme Court has upheld the commission’s unilateral authority to preempt local municipalities in any decisions regarding fracking, the only protections Colorado citizens have must come from the commission. Let’s hope the appeals court finds that the commission has a statutory duty to protect while regulating “in a manner consistent with,” rather than “balanced against” protection of public health, safety, welfare, and the environment.
Paige Lawrence lives in Boulder.