Today, the Colorado Court of Appeals held that the Denver district court erred when it dismissed the suit of Colorado youth who challenged the dismissal by the Colorado Oil and Gas Conservation Commission (the “COGCC”) of their rulemaking petition.  Martinez v. Colorado Oil and Gas Conservation Commission, 2017COA37 (March 23, 2017).  The district court had affirmed the COGCC’s dismissal concluding that the COGCC lacked the authority to consider a proposed rule that would require the COGCC to adjust the balance between the development of oil and gas resources and the protection of public health, safety, and welfare under the Oil and Gas Conservation Act (the “Act”).

The court of appeals concluded that the operative language in the Act was unambiguous and  “provides that fostering balanced development is in the public interest when that balanced development is completed ‘in a manner consistent with’ public health, safety, and environmental and wildlife impacts.” The court further agreed with the petitioners that the phrase “in a manner consistent with” “does not indicate a balancing test but rather a condition that must be fulfilled.” As such, the court concluded that the COGCC erred in interpreting section 34-60-102(1)(a)(I) of the Act “as requiring a balance between development and public health, safety, and welfare. The plain meaning of the statutory language indicates that fostering balanced, nonwasteful development is in the public interest when that development is completed subject to the protection of public health, safety, and welfare.”

Finally, the court noted that its decision did not address the merits of the petition at the COGCC. However, in response to the Commission’s argument that judicial review of denials of rulemaking is limited and deferential, it stated: “True, but a denial of a rulemaking petition remains properly the subject of judicial review.” The court thus ordered the case remanded to the district court with instructions to return it to the COGCC for proceedings consistent with the opinion.  An appeal by the COGCC almost certainly will follow.

The Colorado case is a coordinated action with a federal case pending in the United States District Court for the District of Oregon where the court held that a group of young plaintiffs between the ages of eight and eighteen, an association of young environmental activists, and a scientist acting as a “guardian for future generations” had standing and stated a claim that survived a motion to dismiss against the United States, the President, and several federal agencies as a result of government policies the plaintiffs allege contributed to climate change thereby endangering the plaintiffs and causing long-lasting damage to the environment.  Juliana v. United States, Case No. 6:15-cv-01517-TC  (Nov. 10, 2016 Dist. Oregon).