Co-author Niloufar Hafizi

The Colorado oil and gas industry breathed a collective sigh of relief when the state Supreme Court announced its unanimous decision in Colorado Oil and Gas Conservation Commission v. Martinez. The court sided with the Commission in rejecting a proposed rule by a group of teenage plaintiffs that would have precluded the Commission from issuing oil and gas drilling permits “unless the best available science demonstrates, and an independent, third-party conforms, that drilling can occur in a manner that does not cumulatively … impair Colorado’s atmosphere, water, wildlife, and water resources, does not adversely impact human health, and does not contribute to climate change” (Notice the skillful use of “and” and not “or”).

After denying the request the Commission prevailed at the district court. The plaintiffs won a split court of appeals decision in which the majority concluded that the enabling statute – the Colorado Oil and Gas Conservation Act – authorized the Commission to condition a drilling permit on a finding of no adverse cumulative impacts to public health and the environment, and that the Commission had improperly refused to make a rule that was within its power.

The Supreme Court

The Supreme Court upheld the Commission’s ruling, focusing on the Commission’s primary reason for refusing the proposal: It did not have the statutory authority to impose the condition of “no cumulative adverse impacts” on a drilling permit application. The enabling statute identified multiple policy goals for the agency and contained a declaration of purpose stating how it was “in the public interest to…[f]oster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” [emphasis added] The Commission interpreted that language as a requirement to balance oil and gas production with the other concerns. The plaintiffs argued that “in a manner consistent with” is the equivalent of “subject to”.

The Court looked at legislative history, legislators’ comments, and the entire statute to conclude that the Commission “is required…to foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers” while taking steps to, as the statue puts it, “ … 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.”

After analyzing the Act, the court found that the Commission had been correct in determining that the proposed rule was outside its statutory authority.

Takeaways

  • In light of this suit and Proposition 112, one can conclude that a large and dedicated group of environmentalists is out to put an end to the Colorado oil and gas industry.
  • This was a statutory construction case, not a referendum on what the Supreme Court thinks about oil and gas drilling.
  • The battle at the Commission isn’t over. One reason for denying the proposed rule was that the commission is working with the Colorado Department of Health to address the plaintiffs’ concerns.
  • The youthful antagonists were represented by the same group of actors who are behind Juliana v. U. S., now on an appeal by the government in the Ninth Circuit Court of Appeals. That’s the case asserting that the federal government’s failure to reduce carbon emissions violates plaintiffs’ constitutional rights and the government’s obligations as a public trustee.

We will have a more in-depth report on Martinez soon.

In the meantime, let us despair over the Debacle in the Dome.

Are you “woke”* vis-vis-vis global warming and the coming-any-day-now destruction of the coral reefs, the arctic ice pack, polar bears, coastlines, the flora, the fauna, you, me, and the entire natural world as we know it? Me neither. That’s because I elect to look past the first dozen or so results from a Google search of “global warming”, “climate change”, and related topics. Continue Reading There is Another Way to Report on Global Warming

Co-author Chance Decker

You’ve seen the headlines.  The portrait is complete; the verdict is in; the clock has run down to zero. The devastation of Harvey is “unprecedented” and it’s all because of climate change. That’s not necessarily so, thanks to Powerline and Dr. Roy Spencer.  Read it and reach your own conclusion.

And now, on to the the law

Apache Deepwater, LLC v. Double Eagle Development, LLC asked whether a retained acreage clause provided for “rolling terminations” after the primary term or “snapshot termination”. As you might expect, the result depended on the language of the lease. Continue Reading Harvey and Climate Change, and Consideration of a Retained Acreage Clause

hysteriaThe climate change debate is too complex, agenda-driven, and politicized to be addressed adequately in these pages. But the hysteria and faux outrage over President Trump’s decision to withdraw from the Paris Climate Accord is enough to incite a bad case of the red-keister. So, if you are in need of ammo to repel those who are experiencing intense displeasure from the decision, here are a few well-considered reasons why the result just might be the correct one. You should read the articles themselves, and you aren’t being asked to agree.

It wasn’t such a big deal to begin with. Foreign Affairs

The US’s pledge is more burdensome relative to baseline projections then the pledges of the other major emitters. Three of the six can increase their emissions. This article is not one-sided, and suggests the best policy would have been to remain in the PCA but revise it so our goals are more consistent with other major emitters. American Action Forum

The agreement would have burdened the US with huge costs and no economic benefits. Americans for Tax Reform Continue Reading Why Leaving the Paris Climate Accord Could Be a Good Thing

My recent post about Alex Epstein and the moral case for fossil fuels told only part of his story. He also says that the global warming “alarmists” have it all wrong. He refers to “unambiguous” data that CO2 emissions have risen from an atmosphere concentration of .03% to .04%, while over the same period climate-related deaths have declined 98%, and drought-related deaths have declined by 99.8%.

Here are some of Alex’s other points:

  • Defenders of fossil fuels, when they publicly endorse “renewable” as the ideal, defeat themselves by essentially agreeing that there is a moral case against fossil fuels.
  • The implication is that “renewables” are the goal and oil and gas is just a temporary necessary evil.
  • Once greenhouse gas emissions are endorsed as a fundamental benchmark of environmental health, the industry is conceding that it is causing catastrophic global warming and that reducing greenhouse gas emissions is moral imperative.

What’s With Honey Boo Boo and Fossil Fuels?

Which leads me to a related topic. In preparing this blog I see more blog posts and news articles than you can imagine about “global warming”, “climate change” and the like.  I’ve concluded that the issue is so highly politicized, has attracted so many advocacy groups, and has generated so many puroprtedly scientific opinions on one side or the other that I (not being an engineer) don’t know what to believe.

Thus, for the time being I leave it to you to Google “global warming” or “climate change” and decide for yourself. In the meantime here are a few sources I’ve come across that you can rely on, at least for their consistency:

The “Alarmists”: The International Panel on Climate Change  (where it all started), Al Gore and the Huffington Post  (a twofer here), pretty much anything from the New York Times (insidious for what it elects not to print as much as for what it does), Grist (Can you get farther left?).

The “Deniers”: Non-Governmental International Panel on Climate Change ; Bjorn Lomberg (not so much a “denier” as an alternative thinker); The Foundry, from the Heritage Foundation (far right on just about everything); Powerline; Watts Up With That.

Somewhere out there are “moderates”. Rich and Elizabeth Muller might be two of them. I know they’re U C Berkeley professors. Just read what he has to say.

This GW hiatus doesn’t include the fracking controversy. (Or is it fracing, or frac’ing? I’ve been castigated by my friend, Dallas lawyer Pat Shaw, for using “fracking”. Pat says only the “anti’s” use that spelling).

Having tired of trying to figure out if the world is going to perish by 2020, or 2035, or 2100, or the next presidential election, or never, I’ve moved on to more weighty topics:

  • Noah: Blasphemy or clueless Hollywood entertainment?
  • Lord Grantham:  Anachronistic dilettante or an honorable man preserving noblesse oblige and other worthy institutions?
  • Who will win the AL West? … the SEC West?
  • Should the USA convert to the metric system?
  • Clapton or Hendrix?
  • First place in artistic achievement:  Hoarders, Cheaters, or Here Comes Honey Boo Boo?

As with GW, decide for yourself.

 

We begin with a tribute to global warming of a different sort.

For those not yet overexposed to reports on President Obama’s climate change policy announcement, I offer this reasonably objective factual summary of the highlights from the Washington Post (rather than the platitudes underlying many reports). A link to the text of the President’s plan is embedded in the Post article.

Also here is a reasonably objective and factual commentary from Bjorn Lomborg and criticism from the Heritage Foundation (rather than the hysteria from some on that side of the debate).

For the purposes of this conversation let’s agree that global warming exists, and let’s not argue about whether it is, as those who use big words say, “anthropomorphic”  “anthropogenic” or, as you and I might say, “man made”.

Bjorn Lomborg doesn’t focus so much on the causes of rising sea levels; he proposes alternative ways to address the effects. In his latest Newsletter he explains why he disagrees with the conventional reactions to the devastation caused by Hurricane Sandy and advises what should be done to avoid future catastrophes.

His points are, among others:

  • The goal of reducing carbon emissions is far too costly for future generations to afford and won’t make a timely difference anyway. The benefits don’t justify the costs.
  • Because of those costs and the delayed effect it is, in his words, “morally irresponsible” to go about protecting coastlines by CO2 reductions. 
  • Carbon cuts won’t be effective for 50 to 100 years, during which time there will be much human suffering that could be avoided.
  • There are better, more practical, and quicker acting ways to address rising sea levels that attempting to reduce CO2 levels.
  • Prominent “environmental experts” such as Robert Redford and New York Mayor Michael Bloomberg attract lots of attention but have it wrong.

Those who doubt Mr. Lomborg’s position will find comfort in several comments posted with the newsletter. 

A blog from Wendell Cox for the National Center for Policy Analysis on California’s Global Warming Solutions Act is an example of what Mr. Lonborg is worried about. The report questions whether cap and trade is a cost-effective way to reduce carbon emissions.   

An appropriate musical interlude ?

Ron Curry is the EPA’s new administrator for Region 6, which is responsible for enforcement of federal environmental laws in Texas, Louisiana, New Mexico, Oklahoma and Arkansas.  Mr. Curry replaces Al “Crucify ’em” Armendariz, who was sacked earlier this year after comments, caught on video, in which he likened his tactics to the Romans of antiquity who supressed the villages they conquered by killing the first five men they saw.  It made the rest of the citizenry easier to subjugate, was the rationale. I’m sure it did. 

Here is a selection of news reports about Mr. Curry’s appointment:

The Dallas Business Journal says the industry hopes for science-based regulatory enforcement.  This is ironic, given that the current administration promised just such a policy in the last presidential campaign

The Dallas Morning News reminds us that he is not from  Texas.

The Houston Chronicle says environmentalists are pleased with the appointment.

The New Orleans Times Picayune says that Public Citizen touts Mr. Curry’s ability to work with industry and environmental groups.  

The Texas Tribune says he is an advocate for action to stop climate change.

I close with this seldom-seen video featuring the EPA  in the act of encouraging other agencies to join in on the regulatory frenzy.  In the full moon of this administration’s first, perhaps only, term, hear the howling chorus respond with joy and enthusiasm: the Consumer Financial Protection Bureau, Hugo Chavez, the central planners at the countless boards and commissions created by the Patient Protection and Affordable Care Act, bankrupt California taxing entities, and the town that busted the little girls’ lemonade stand.

DISCLAIMER:  All opinions and feeble attempts at humor are mine alone and not necessarily those of my colleagues at Looper Reed or some of my family members.  My dog Daisy forgives my derisive references to her cousins and generally agrees with my politics.