Paula Noonan

Paula Noonan

The Colorado Supreme Court this month decided the contentious Colorado Oil and Gas Conservation Commission (COGCC) v. Martinez case in favor of the COGCC and the oil and gas industry.

The decision by the high court sets the relationship between oil and gas development and human and environmental health and safety. The Supreme Court’s ruling overturned, with grave implications, a finding by the Colorado Court of Appeals that public health and safety are controlling factors in COGCC rule making and permitting.

Both Courts refer to the Colorado Oil and Gas Conservation Act that created the COGCC in 1951 to oversee oil and gas development. Public health and safety purposes of the Act accrued over time, with changes in 1985, 1994, and 2007 as these issues emerged as concerns. The Act now says:

(1)(a) It is declared to be in the public interest to

(I) Foster 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;

The statute later gives powers to the COGCC to “regulate oil and gas so as to prevent and mitigate significant environmental impacts.., taking into consideration cost-effectiveness and technical feasibility.”

The debate over the first declaration concerns the meanings of the adjective “balanced” and the phrase “in a manner consistent with.” The debate over the second part involves the meaning of “taking into consideration…”

The grammar rule for single word adjectives such as “balanced” is simple. The adjective modifies the noun or nouns that follow it. The Appeals Court stated in its decision that the word “balanced” modifies three nouns: development, production, and utilization.”

The Supreme Court overturned this interpretation. In the High Court’s ruling, “balanced” has a broader modification, particularly as it relates to the phrase “in a manner consistent with.” In fact, the high court interprets “balanced” not as an adjective but as a verb, “to balance,” and asserts that the statute means the COGCC should “balance” oil and gas development with public health and safety.

The high court then rejects the Appeals Court’s interpretation of “in a manner consistent with,” stating that “consistent with” is not the same as “subject to,” a phrase used in other statute declarations. Granted there’s a tonal difference between “consistent with” and “subject to,” but the logic of the two phrases is the same.

In logic, a thing can be surrounded by or subsumed within another thing. So a “rule” can be surrounded by or subsumed by a “law.” The law is larger than the rule and shapes the rule.

Such is the case with the phrases “in a manner consistent with” and “subject to.” Here is an example from the New York Times used to illustrate this point in “President Bush and others have insisted that the United States is treating the prisoners fairly and in a manner consistent with the (Geneva) conventions’ broad requirements.”

The idea is that the particular treatment is consistent with the broader requirements. Such is the same with the use of the phrase in the COGCA. Oil and gas drilling rules, the smaller set of things, should be controlled by what is known about securing public health and safety, the larger set of things.

Finally the Supreme Court gets to the phrase “taking into consideration cost-effectiveness and technical feasibility.” These words form an adjective phrase modifying the process of rule-making and granting drilling permits. As a modifier at the end of the sentence, it’s an addendum, not a controlling factor. The Supreme Court says the opposite, stating that cost-effectiveness and technical feasibility are primary not secondary concerns.

In overturning the Appeals Court decision, the Supreme Court says the legislature should straighten out the statute’s language if it wants public health and safety as the controlling factor in the COGCC’s work. That’s what should happen, but not because the Act didn’t write it that way in the first place.

Paula Noonan owns Colorado Capitol Watch, the state’s premier legislature tracking platform.

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