American Oil and Gas Reporter - May 2017 - 91

by a group of Colorado teenagers, who
petitioned the commission to revise its
rules so that no drilling permits be issued
"unless the best available science demonstrates, and an independent third party confirms, that drilling can occur in a manner
that does not impair" the state's environment,
human health or contribute to climate
change. Their petition was supported by
filings from 27 local and national environmental and community organizations.
COGCC heard the petition April 28,
2014, and denied it according to the rationale that the commission lacked authority to revise its rules as petitioned
under the state's Oil and Gas Conservation
Act. A district court upheld the commission's decision on July 2, 2014.
"The commission denied the petition
as outside its authority because the proposed
rule would require a readjustment of the
Oil and Gas Conservation Act's balance
between the development of oil and gas
resources and protection of public health,
safety and welfare," Matthews explains.
"Instead, the proposed rule sought to
require the commission to make its decision
solely based on environmental impacts."
He says the commission maintains
that its statutory authority under the act
requires it to balance four goals:
* Maximizing the efficient production
of a resource pool;
* Protecting correlative rights;
* Preventing waste; and
* Protecting the environment.
It also is required to consider the costeffectiveness and technical feasibility of
any measure implemented to protect the
environment, Matthews points out. "None
of the act's multiple goals are intended
to be considered in isolation, but are
instead part of a balancing process guiding
the commission's decisions," Mathews
describes.
Overriding Concern
Writing in the 2-1 majority opinion,
Appeals Court Judge Terry Fox says the
statute clearly holds that development
and resource production clearly must take
place "in a manner consistent with" environmental protection. Such language
"does not create a balancing test," Fox
holds. Rather, it deems development as
in the public interest when it protects
health, safety and welfare.
In her dissenting opinion, Judge Laurie
Booras observes that the law directs the
commission to "prevent and mitigate significant adverse environment impacts" at
the same time it considers cost-effectiveness
and technical feasibility. "There would
be no reason to consider cost-effectiveness
and technical feasibility if protection of
the environment was, by itself, the deter-

mining factor," Booras points out.
The ruling focuses on a single issue,
Mathews indicates. "It said COGCC had
the authority to consider the petition and
therefore should reassess its rejection of
it," he emphasizes. "It did not direct the
commission to stop what it was doing.
Nor did it provide guidance for what rules
should be changed or even if a rule making
was called for. Still, the ruling does have
very significant implications. Courts rarely
second-guess agencies' interpretations of
their enabling statutes or the process by
which agencies make complex decisions.
Here, the majority did both."
The two industry groups that have filed
in support of COGCC are expressing concern that the appeals court decision adds
uncertainty to the state's regulatory process.
"The ruling throws out decades of

precedent encouraging this balancing test,
and instead elevates environmental protection as the primary goal," holds Colorado Oil & Gas Association President
Dan Haley. "Protection of our environment
is a key pillar in our existing statute. We
encourage the COGCC to appeal."
Tracee Bentley, executive director of
the Colorado Petroleum Council, expresses
disappointment and concludes that the
decision lacks sound legal basis. "Colorado's oil and natural gas industry has a
long record of environmental stewardship
that belies the need for additional onerous
rules and restrictions," she says.
Given the ruling's significance and
potential impact, Mathews predicts
COGCC will fight it. "I will be surprised
if the commission does not appeal the
ruling," he relates.
❒

CDPHE Says Oil Operations
Pose Little Risk To Residents
DENVER-The risk for residents living
near oil and gas operations is low, and
studies of the results of exposure to industry operations do not indicate the need
for immediate public health action, the
Colorado Department of Public Health
and Environment has determined.
Those results were revealed by CDPHE
in February, reports Courtney Loper with
Energy in Depth-Mountain States.
Loper calls the findings "a huge blow
to the 'anti-fracking' movement, which
has tried to make health claims the linchpin
of their campaign against fracturing."
She says CDPHE collected more than
10,000 air samples in parts of the state
with substantial oil and gas operations.
"This isn't cherry-picked air sampling
data," Loper quotes Mike Van Dyke, CDPHE's head of environmental epidemiology. "This is all air sampling data."
The data collected by CDPHE indicate
that substances emitted by oil and natural
gas operations do not reach levels that
can be considered harmful to human
health, even when measured against conservative standards intended to protect
sensitive individuals, Loper notes.
She says the main conclusions of the
assessment are:
* All measured air concentrations are
below short- and long-term "safe" levels
of exposure for noncancer health effects,
even for sensitive populations.
* Overall, available air monitoring
data suggest low risk of harmful health
effects from combined exposure to all
substances.
* All four cancer-causing substances

(benzene, ethylbenzene, formaldehyde
and acetaldehyde) are within acceptable
risk ranges, even for combined exposures.
* Two substances, ethane and
methane, do not produce any health effects
except at extremely high exposures.
* All other 56 substances are five to
10,000 times below standard health-based
reference values, and are considered in
the negligible risk range.
"For those who remain concerned
about the very existence of the substances,
Van Dyke explains that the level of exposure is key, especially considering how
many of the substances examined in the
assessment also are emitted by sources
other than oil and natural gas development,
including vehicle traffic, and consumer
products such as nail polish, detergents,
sealants, aerosol antiperspirants and deodorants," Loper writes.
"Each can be a health concern at some
level of exposure," she quotes Van Dyke.
Loper says the findings are consistent
with CDPHE's previous reassurances to
the public about the health impacts of oil
and natural gas development. "CDPHE's
Chief Medical Officer and Executive Director Larry Wolk told the Greeley Tribune
that 'we don't see anything to be concerned
with' regarding oil and natural gas development and public health," she cites.
"I am not going to tell anybody to drink
a pint of liquid petroleum or stand over an
active well site and (breathe) in the fumes,"
Loper quotes Wolk. "Nobody would argue
this stuff isn't toxic, but it's all about exposure to toxins, and we don't see anything
to be concerned with at this point."
❒
MAY 2017 91



Table of Contents for the Digital Edition of American Oil and Gas Reporter - May 2017

Contents
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American Oil and Gas Reporter - May 2017 - 2
American Oil and Gas Reporter - May 2017 - Contents
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