The town of Basalt has joined other Colorado municipalities and counties in signing onto an amicus brief prepared by Boulder County asking the state Supreme Court to adopt the appellate court ruling in the case of Martinez v. Colorado Oil and Gas Conservation Commission.
The ruling, according to a memorandum prepared for Basalt’s Town Council meeting last week, held that the commission must ensure that any oil and gas development it approves is consistent with the “protection of public health, safety and welfare, including protection of the environment and wildlife resources.” Amicus briefs are legal documents filed in appellate court cases by outside interests that aren’t directly involved in the litigation, but hold a significant interest in the subject matter and could be affected by the outcome.
In the big picture, the Basalt Town Council’s decision to support Boulder County is the latest in a string of actions across the state by various elected bodies and other entities that seek to hold oil and gas companies accountable for their effects on communities and the environment, including climate change. Also, it’s the most recent of several undertakings the town has taken in recent years to become more environmentally conscious.
The basic argument in the Martinez case, the memo states, relates to a disagreement over the meaning of the phrase “in a manner consistent with” as it applies to the commission’s rules for oil and gas drilling and protecting public health and safety of the state’s residents.
“The industry contends [as well as the Colorado Attorney General] that the meaning of the phrase refers to a balance in industry interests with the public health and environment. The opposition holds that ‘the environment and public safety is obligatory and not a factor to be balanced,’” Basalt Town Manager Ryan Mahoney wrote in a summary for council members. The council voted unanimously last Tuesday, with little discussion, to stand with Boulder County on the issue.
Mahoney said Friday that Mayor Jacque Whitsitt initiated the local effort to endorse Boulder County’s brief through her contact with a county commissioner there. Overall, supporting such causes “promotes the conversation on environmental and public-safety issues as it relates to oil and gas development,” Mahoney said.
The town manager said he will prepare a letter expressing the council’s support, to be signed by Whitsitt and forwarded to Boulder County. Other government entities reportedly joining the cause include the municipalities of Boulder, Gunnison, Lafayette, Erie and Broomfield, as well as San Miguel County and the Northwest Council of Governments.
Mahoney, who has been Basalt’s town manager for 10 months, said the town is asked for support from time to time on any number of issues and causes, but the request on the Martinez brief is the first to come across his desk relating to the potential harmful impacts of oil-and-gas operations on communities.
Greener of late
Basalt town leaders and staff have initiated efforts to become more environmentally friendly in recent years, Mahoney said. The building code has been updated to require new construction to be energy efficient. That’s just one of the many “green” measures implemented by the town, he said.
Last year, the town joined the Colorado Communities for Climate Action, or CC4CA, a new coalition of local governments advocating for state and federal policies to protect Colorado’s climate for current and future generations.
“The state and federal actions CC4CA seeks are needed to complement strong local climate actions CC4CA members already have underway to keep Colorado a special place to live, to work, to enjoy,” Basalt Planning Director Susan Philp wrote in an email to the Aspen Daily News.
Basalt Councilman Auden Schendler, who also is vice president of sustainability for Aspen Skiing Co., is renowned for his work as a climate activist. He pointed out that the Martinez case more directly concerns public safety and health than it does climate change.
“There’s a climate component but it’s more about health and community well-being,” he said. “The truth is, we’re going to be drilling for oil and gas in Colorado, the companies have a right to do that, and they produce a product that people use. In return, they should do it in the most responsible way, and that includes not being on top of communities.”
Schendler said he’s been working in the climate field for about 25 years.
“I think we’re in a crisis. I think you’re going to see more and more entities like Boulder, like Basalt, throwing anything and everything at problems (related to) energy development and climate change to see what might work,” he said.
Schendler pointed to another recent legal action that could have statewide implications: Boulder and San Miguel counties are suing ExxonMobil and Suncor Energy for being major producers in Colorado of fossil fuels “which were eventually burned,” creating greenhouse gases, said by experts to be the primary cause of climate change. It’s an interesting legal contention, Schendler said, because it could be argued that the counties and their residents are the ones doing the burning and causing the harm.
“I think the point [the counties] are trying to make is, ‘We’re going to try absolutely everything on this climate problem. Some things are going to be obvious, some things are going to be a little weirder, some things will work, some things will fail.’
“This is the beginning of a ‘buckshot attack’ on the climate problem. If we don’t deal with this, we are just going to continue to see the kinds of horrific events that scientists tell us we’ll see.”
Deep losses for ski communities
Schendler listed certain events close to home that could be linked to climate change, including the Boulder floods of 2013 and the poor snowfall totals of Colorado’s — and the intermountain West’s — most recent winter season.
“This winter season cost Colorado $100 million,” he said. “The industry took tens of millions of dollars of hits in each ski community in December and January,” the two months with the lowest snowfall totals of the 2017-18 tourism season.
San Miguel County Commissioner Hilary Cooper said the two counties teamed up on the suit because climate change is causing government entities to lose money. The lawsuit claims that fossil fuel combustion has been “causing a dramatic rise in the concentration of [greenhouse gas] in the atmosphere,” leading to “significant temperature changes” and “dramatic climatic changes.”
Prior to the action by the two counties, only coastal states impacted by rising sea levels had filed lawsuits against energy companies in a quest to recoup monetary losses from climate change, Cooper said. Like Schendler, she said intermountain states such as Colorado are affected in other ways, including drought conditions leading to low snowpack levels, thus creating a deficit in the regional water supply.
San Miguel County commissioners got together last year for a goal-setting session, one of which is to strive for the county to become a “100 percent carbon-neutral organization,” she said.
Later, “We started asking questions about climate change, what it’s costing us (and other effects),” Cooper said. “We started adding the numbers up, and the numbers were a lot higher than we expected in terms of spending.” The financial impacts include the rising cost of increased wildfire mitigation and infrastructure repairs — San Miguel County, whose main economic driver is Telluride Ski Resort — counts on winter snowfall to protect the surfaces of certain roads.
The county’s increasing costs related to climate change “are getting up into the hundreds of thousands” of dollars, she said. That, coupled with the state’s tax revenue-altering Gallagher Amendment, means “we’re losing money to address essential services,” Cooper said.
Cooper noted that energy companies such as ExxonMobil have admitted to being a contributor to climate change. They also have publicly stated their support for private, non-mandated efforts to combat the problem.
“They’ve made these statements, but they’re not really doing anything about it,” she said. “They don’t believe that government solutions are the way to go. They believe that solutions should be market driven.”
The lawsuit, filed in mid-April, shouldn’t be viewed as an attempt to stop climate change, nor is it aimed at shutting down energy companies, Cooper said.
“This litigation targets the fact that they have admitted guilt, and it asks them to pay — otherwise it’s on the backs of the taxpayers,” she said.
Though other energy companies also have contributed to the climate-change problem, ExxonMobil and Suncor, which operates a refinery in Commerce City, were chosen specifically based on their business partnerships and the size of their operations within the state.
“We want to keep this in state court,” Cooper said in explaining why more energy companies weren’t named in the suit. “We don’t want it to go up to the federal level and the U.S. Supreme Court.”
The counties aren’t proactively asking other government entities to join them, but would not turn down any support that’s offered, she said.
If other counties or government bodies across Colorado want to join Boulder and San Miguel counties to become plaintiffs in the suit, “Give us a call,” Cooper said.