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Colorado's Top Court Sides Against Youth in Major Anti-Fracking Case

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Emma Bray of Denver, a plaintiff on the youth-led climate lawsuit, Martinez v. COGCC. @youthvgov / Twitter

Colorado's oil and gas industry breathed a sigh of relief on Monday after the state's highest court overturned a lower court decision that said state regulators must consider public health and the environment in permitting oil and gas production.

The unanimous ruling was a disappointment for the teenage plaintiffs, including high-profile climate activist Xiuhtezcatl Martinez, who led the closely watched lawsuit against the Colorado Oil and Gas Conservation Commission (COGCC).


"To know that the judges in the highest court of my state believe that the interests of the oil and gas industry come before the public health, safety and welfare of my fellow Coloradans is shameful," the 18-year-old from Boulder said in a press release.

"But," Martinez added, "I want you all to know that this fight for climate justice is far from over. My fellow plaintiffs, youth around the world, and I will continue to stand up for our right to a healthy future."

The lawsuit—backed by Our Children's Trust, the same non-profit supporting the young plaintiffs in the landmark federal lawsuit Juliana v. United States—was originally filed in November 2013 on behalf of seven young Coloradans who are all members of the Boulder-based youth group Earth Guardians.

They demanded that the COGCC refuse oil and gas development permits "unless the best available science demonstrates, and an independent, third-party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change."

Ultimately, as the Colorado Sun noted, the activists were hoping to stamp out Colorado's oil and gas activities and prompt a "state-wide ban on fracking," as then-13-year-old Martinez explained.

Instead, Justice Richard Gabriel ruled Monday that current state law requires regulators to balance oil and gas development with protecting public health, the environment and wildlife.

The decision states:

"[T]he pertinent provisions make clear that the Commission is required (1) to foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers, and (2) in doing so, 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."

Basically, the ruling upholds the "Colorado way of doing business," Dan Haley, president and CEO of the Colorado Oil and Gas Association, said as quoted by The Denver Post.

He added that under state law, the COGCC's regulations for the oil and natural gas industry are the most extensive and stringent in the country.

For fracking opponents, it's the law itself that's the problem. Julia Olson, the executive director of Our Children's Trust and co-counsel for the youth plaintiffs, stated that the Supreme Court's interpretation of the state's Oil and Gas Conservation Act makes it clear that the rule should be "amended or set aside as unconstitutional" as it allows "unfettered discretion to promote Colorado's dangerous and pervasive oil and gas development at the expense of the people."

Undeterred by the ruling, State House Speaker KC Becker said she will work to change Colorado law so the fossil fuel industry will do more to protect public health and the environment, as reported by Colorado Public Radio.

"It puts the decision back into the hands of lawmakers to take action and we are committed to addressing this concern this legislative session," Becker also tweeted.

In an online statement, new Gov. Jared Polis—who wants to transition Colorado to 100 percent renewable energy by 2040—said he was "disappointed" by the court's ruling.

He noted, "it only highlights the need to work with the Legislature and the Colorado Oil & Gas Conservation Commission to more safely develop our state's natural resources and protect our citizens from harm."

The plaintiffs also remain optimistic.

"The last couple years have proven that youth have the opportunity to be heard in the courts and the community. Not a single person, company or corporation can silence the young generation's voices," Emma Bray, 19-year-old plaintiff from Denver, said in a press release. "We will continue the fight for our Earth and our future, despite the mountains we need to climb and the setbacks that we will overcome. Regardless of the court's decision in our case, the fight will continue."

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Protestors marched outside the Prudential Center in Newark, New Jersey on Monday, August 26, during the MTV Video and Music Awards to bring attention to the water crisis currently gripping the city. Karla Ann Cote / NurPhoto / Getty Images

By Will Sarni

It is far too easy to view scarcity and poor quality of water as issues solely affecting emerging economies. While the images of women and children fetching water in Africa and a lack of access to water in India are deeply disturbing, this is not the complete picture.

The city of Flint, Michigan, where dangerous levels of pollutants contaminated the municipal water supply, is a case in point — as is, more recently, the city of Newark, New Jersey.

The Past is No Longer a Guide to the Future

We get ever closer to "day zeros" — the point at when municipal water supplies are switched off — and tragedies such as Flint. These are not isolated stories. Instead they are becoming routine, and the public sector and civil society are scrambling to address them. We are seeing "day zeros" in South Africa, India, Australia and elsewhere, and we are now detecting lead contamination in drinking water in cities across the U.S.

"Day zero" is the result of water planning by looking in the rear-view mirror. The past is no longer a guide to the future; water demand has outstripped supplies because we are tied to business-as-usual planning practices and water prices, and this goes hand-in-hand with the inability of the public sector to factor the impacts of climate change into long-term water planning. Lead in drinking water is the result of lead pipe service lines that have not been replaced and in many cases only recently identified by utilities, governments and customers. An estimated 22 million people in the US are potentially using lead water service lines. This aging infrastructure won't repair or replace itself.

One of the most troubling aspects of the global water crisis is that those least able to afford access to water are also the ones who pay a disproportionately high percentage of their income for it. A report by WaterAid revealed that a standard water bill in developed countries is as little as 0.1 percent of the income of someone earning the minimum wage, while in a country like Madagascar a person reliant on a tanker truck for their water supply would spend as much as 45 percent of their daily income on water to get just the recommended daily minimum supply. In Mozambique, families relying on black-market vendors will spend up to 100 times as much on water as those reached by government-subsidized water supplies.

Finally, we need to understand that the discussion of a projected gap between supply and demand is misleading. There is no gap, only poor choices around allocation. The wealthy will have access to water, and the poor will pay more for water of questionable quality. From Flint residents using bottled water and paying high water utility rates, to the poor in South Africa waiting in line for their allocation of water — inequity is everywhere.

Water Inequity Requires Global Action — Now.

These troubling scenarios beg the obvious question: What to do? We do know that ongoing reports on the 'water crisis' are not going to catalyze action to address water scarcity, poor quality, access and affordability. Ensuring the human right to water feels distant at times.

We need to mobilize an ecosystem of stakeholders to be fully engaged in developing and scaling solutions. The public sector, private sector, NGOs, entrepreneurs, investors, academics and civil society must all be engaged in solving water scarcity and quality problems. Each stakeholder brings unique skills, scale and speed of impact (for example, entrepreneurs are fast but lack scale, while conversely the public sector is slow but has scale).

We also urgently need to change how we talk about water. We consistently talk about droughts happening across the globe — but what we are really dealing with is an overallocation of water due to business-as-usual practices and the impacts of climate change.

We need to democratize access to water data and actionable information. Imagine providing anyone with a smartphone the ability to know, on a real-time basis, the quality of their drinking water and actions to secure safe water. Putting this information in the hands of civil society instead or solely relying on centralized regulatory agencies and utilities will change public policies.

Will Sarni is the founder and CEO of Water Foundry.

Note: This post also appears on the World Economic Forum.

Reposted with permission from our media associate Circle of Blue.

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