Lawsuit filed against COGCC

DISTRICT COURT, DENVER COUNTY, COLORADO 1437 Bannock Street Denver, CO 80202 Tel: 720‐865‐8301 PLAINTIFFS: WELD AIR AND WATER; SIERRA CLUB; NAACP COLORADO STATE CONFERENCE; AND WALL OF WOMEN

v.

DEFENDANT: COLORADO OIL AND GAS CONSERVATION COMMISSION Attorneys for Plaintiffs: Names: Kevin Lynch (CO Bar No. 39873) Tim Estep (CO Bar No. 48553) Margaret Casey (Student Attorney) Drew Hoffman (Student Attorney) Jack Stokan (Student Attorney) Address: Environmental Law Clinic University of Denver Sturm College of Law 2255 E. Evans Avenue, Denver, CO, 80208 Phone: (303) 871‐6140 Email: klynch@law.du.edu; testep@law.du.edu; mcasey18@law.du.edu; dhoffman18@law.du.edu; jstokan17@law.du.edu

▲ COURT USE ONLY ▲

Case Number: _________ Division: Courtroom:

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1.

This case involves the Commission’s unlawful approval of the siting of 24 new oil and gas wells and related production facilities near Bella Romero Academy, a Middle School in Weld County, Colorado. Extraction Oil & Gas LLC’s Vetting 15‐H Well Pad and Vetting Facility are to be located in two adjacent fields directly south of Bella Romero Academy, abutting Bella’s athletic fields and playground, not to mention many community members’ homes.

2.

The athletic fields and playground at Bella Romero Academy are situated to the south of the school building, between the building and the project site. Portions of the school yard are less than 500 feet away from where the development will be located.

Families and students frequent the recreational facilities at Bella Romero Academy on a regular basis, particularly throughout the school day and at sporting events on the weekend.

3.

According to the Colorado Department of Education, Bella Romero’s student population is 10.5% white, non‐Hispanic and 89.5% Latino or Hispanic, African American, or other people of color, while 87% of Bella’s students are eligible for free or reduced fee lunch.1 In contrast, the demographics at Frontier Academy Elementary School in Greeley, Colorado are approximately 73.6% white, non‐Hispanic and 26.4% Latino or Hispanic, African American, or other people of color, while 18.2% of Frontier students are eligible for free or reduced fee lunch.2 4.

The operator has noted that the South Greeley location, which abuts Frontier Academy Elementary School, is “not ideal” for oil and gas development because of its proximity to the school and playground—even though the playground at Frontier is further away from the proposed development than the playground and ballfields at Bella Romero.

5.

It is this stark disparity that raises concerns of environmental justice at Bella Romero. The Commission and operators generally experience the least amount of pushback when siting major oil and gas development in predominantly minority communities since these communities do not have the same resources as more affluent communities. There is no requirement that operators notify parents of nearby schools, and consequently, many parents were unaware of the development planned behind Bella Romero. Furthermore, in communities where language barriers exist, parents may be unable to access important information about the surrounding community—such as oil and gas development planned directly behind school grounds where their children are in attendance.

6.

Despite recent attempts made by the United States government to level the playing field, African Americans, Latino Americans, Asian Americans, and Native Americans continue to bear a disproportionate burden of environmental and health risks where they live, work, and play. People of color, as well as working class and poor people, are disproportionately impacted by numerous sources of industrial development and air pollution.3 The environmental justice movement developed in response to this situation.

EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”4 7.

The Vetting 15‐H Well Pad (Location ID 322888) is permitted through the Commission’s Form 2A application and according to the application will contain 24 new wells and two modular large volume tanks that are 157’ in diameter. The associated Vetting

1 http://www.cde.state.co.us/cdereval/pupilcurrentschool (providing Colorado school‐ level data for the 2016‐2017 school year, including demographic data and data on eligibility for reduced or free lunches).

2 Id. 3 Robert D. Bullard, Environmental Justice for All: It’s the Right Thing to Do, 9 J. ENVTL. L. & LITIG. 281, 281 (1994).

4 EPA, Environmental Justice, available at www.epa.gov/environmentaljustice.

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Facility (Location ID 449583) is permitted through the Commission’s Form 2A application, is located adjacent to the well pad, and according to the application will contain numerous other large industrial tanks designed to hold produced wastes and oil until tanker trucks can offload the product. The wells themselves are permitted through the Commission’s Form 2 application.

8.

On March 10, 2017, the Commission, acting through its Director, approved Extraction’s applications for the Vetting 15‐H Well Pad and Vetting Facility and to drill the associated wells, despite community opposition to the project voiced in public meetings, written comments, and specific technical comments outlining extensive scientific information on the health impacts of such projects.

9.

Weld Air and Water; The Sierra Club; NAACP Colorado State Conference; and Wall of Women (“Public Health Advocates”) file this complaint in response to the Commission’s approval of Extraction’s permit to build a large oil and gas production facility and well pad behind Bella Romero Academy. The Public Health Advocates are concerned that local and state authorities have decided that the primarily Latino and Hispanic Bella Romero Community will bear the brunt of such a large facility near the school. The Public Health Advocates are equally concerned with the precedent this decision will set for future projects that might be inserted into similar communities. If the Commission is not held accountable for ensuring, on a case‐by‐case basis, that public health, safety, and welfare are protected, then other communities will be put at risk in the future.

10.

The Commission has inadequately responded to public comments and concerns that were presented to them regarding the development at Bella Romero, specifically the overwhelming concern that the project will negatively impact the community’s health, safety, and welfare through increased noise, pollution, traffic, and other dangers associated with oil and gas development.

11.

As set forth below, the Commission’s action violated Commission regulations and the Colorado Administrative Procedure Act in several particulars, including but not limited to: (a) inadequately addressing the public health information submitted during public comments in the record, therefore violating its statutory duty to protect the public health, safety, and welfare by issuing the permit; (b) arbitrarily and capriciously finding the production facilities were “as far as possible” from Building Units; and (c) failing to apply the correct “as far as possible” legal standard to the production facilities.

PARTIES 12.

Weld Air and Water is a nonprofit community‐based organization located in Weld County, Colorado, that promotes the social and environmental welfare by organizing community awareness of oil and gas development in its neighborhoods, providing information, and advocating for health and safety.

13.

Sierra Club is a national nonprofit organization with 67 chapters and over 740,000 members dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth’s ecosystems and

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resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The Rocky Mountain Chapter of the Sierra Club has approximately 20,500 members in the state of Colorado, including members who live and work in Greeley and Weld County near the proposed Vetting oil and gas development.

14.

National Association for the Advancement of Colored People Colorado State Conference is a civil rights advocacy organization with the goal of ensuring the political, educational, social, and economic equality of rights of all persons and to eliminate race‐ based discrimination wherever it exists.

15.

Wall of Women is a grassroots environmental advocacy group advocating to protect the earth for future generations. Its mission is to support the children as they challenge those who chose profit over preservation.

16.

Collectively, Public Health Advocates have members who live and work near Bella Romero and will be negatively impacted by the oil and gas development. Members regularly use the area around Bella Romero to exercise, recreate, and attend sporting events. Some members have children that attend school at Bella Romero. Members and their children will be negatively impacted by increased traffic, noise, pollution, and other dangers associated with oil and gas development.

17.

Defendant Colorado Oil and Gas Conservation Commission is a Colorado agency charged with fostering the responsible development of Colorado's oil and gas natural resources in a manner consistent with the protection of public health, safety, and welfare, including the environment and wildlife resources.

18.

Matt Lepore is the Director of the Commission. The Commission has delegated permitting authority to the director through its regulations. The Director’s approval constitutes final agency action under Commission Rule 305.e. Director Lepore was acting on behalf of the Commission when he approved Extraction’s Form 2 and Form 2A applications for the Vetting development.

JURISDICTION AND VENUE

19.

The Commission’s approval of the Vetting Form 2A applications constitutes final agency action for the purpose of judicial review. 2 C.C.R. § 404–1:305.e; 2 C.C.R. § 404‐ 1:501.c.

20.

Pursuant to the Colorado Administrative Procedure Act and the Oil and Gas Conservation Act, any person adversely affected or aggrieved by a final action of the Commission is entitled to judicial review. C.R.S. § 24‐4‐106, § 34‐60‐111; see also 2 C.C.R. § 404–1:501.c.

21.

As described in more detail below, the Public Health Advocates are adversely affected by the Commission’s approval of Extraction’s Vetting Form 2A permits for the well pad and the associated facility near Bella Romero. The approval green‐lights encroachment

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of heavy industry upon the community and members of the Public Health Advocates.

Public Health Advocates are parents, students, and neighbors to the development that will be subjected to noise, bright lights, pollution, odors, and heavy truck traffic from the months of 24‐hour, seven‐day‐a‐week operations.

22.

This Court has personal and subject matter jurisdiction over this proceeding.

C.R.S. § 24‐4‐106(4).

23.

Pursuant to Rule 98(b)(2) and 98(c) of the Colorado Rules of Civil Procedure, venue is appropriate in this Court because the Commission resides in the City and County of Denver. C.R.S. § 24‐4‐106(4).

LEGAL BACKGROUND A. The Colorado Administrative Procedure Act 24.

Under the Colorado Administrative Procedure Act, all final agency action is subject to judicial review. C.R.S. § 24‐4‐106(2).

25.

The Colorado APA provides that if a court finds “that the agency action is arbitrary or capricious, . . . an abuse or clearly unwarranted exercise of discretion, based upon findings of fact that are clearly erroneous on the whole record, unsupported by substantial evidence when the record is considered as a whole, or otherwise contrary to law then the court shall hold unlawful and set aside the agency action and shall restrain the enforcement of the order or rule under review . . . remand the case for further proceedings, and afford such other relief as may be appropriate.” C.R.S. § 24‐4‐106(7).

26.

In making the foregoing determinations, a court shall review the whole record or such portions thereof as may be cited by any party. Id. 27.

The Colorado APA is similar to the Federal APA, and Colorado courts find federal cases instructive on review of administrative law issues. See, e.g., Citizens for Free Enterprise v. Dept. of Revenue, 649 P.2d 1054, 1063 (Colo. 1982).

28.

Courts have found agency decision making arbitrary and capricious if agencies base decisions on conclusory findings unsupported by the facts on the record, if the conclusion is based on speculative factual assertions, or if an agency does not bridge the facts contained in the record to conclusions it reaches. Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir. 2004); Chase v. Colorado Oil & Gas Conservation Comm'n, 284 P.3d 161, 171 (Colo. App. 2012); Dickson v. Sec'y of Def., 68 F.3d 1396, 1407 (D.C. Cir. 1995).

29.

Courts have also found agency action arbitrary and capricious when an agency fails to adequately address public comments. Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 36 (D.C. Cir. 1977); Rags Over the Arkansas River, Inc. v. Colorado Parks & Wildlife Bd., 360 P.3d 186, 191 (Colo. App. 2015).

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30.

Courts have found an abuse of discretion where an agency failed to exercise its discretion. Fisher v. C.I.R., 45 F.3d 396, 397 (10th Cir. 1995).

31.

In every case of agency action, the record, unless otherwise stipulated by the parties, shall include the original or certified copies of “pleadings, applications, evidence, exhibits, and other papers presented to or considered by the agency, rulings upon exceptions, and the decision, findings, and action of the agency.” Any person initiating judicial review shall designate the relevant parts of such record and advance the cost therefor. As to alleged errors, omissions, and irregularities in the agency record, evidence may be taken independently by the court. C.R.S. § 24‐4‐106(6).

B. Colorado Oil and Gas Conservation Act 32.

The Colorado Oil and Gas Conservation Act regulates the oil and gas industry in the state of Colorado. C.R.S. §§ 34‐60‐101 – 130.

33.

The legislative declaration of the Act states, “It is declared to be in the public interest to 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 the protection of public health, safety, and welfare.” C.R.S. § 34‐60‐102(1)(a)(1) (2016).

34.

“The Commission has the authority to regulate oil and gas operations so as to prevent and mitigate significant adverse environmental impacts . . . to the extent necessary to protect public health, safety, and welfare.” C.R.S. § 34‐60‐106(2)(d).

35.

“Any rule, regulation, or final order of the commission shall be subject to judicial review in accordance with the provisions of section (106 of the Colorado Administrative Procedure act).” C.R.S. § 34‐60‐111.

C. Colorado Oil and Gas Commission Rules 36.

Commission Rule 305.e says the Director of the Commission may “attach technically feasible and economically practicable conditions of approval to the Form 2 or Form 2A as the Director deems necessary to implement the provisions of the Act or these rules pursuant to Commission staff analysis or to respond to legitimate public health, safety, or welfare concerns expressed during the comment period.”

37.

The Director has the authority to “withhold approval of any Application for Permit‐to‐Drill, Form 2, or Oil and Gas Location Assessment, Form 2A, for any proposed Well or Oil and Gas Location when, based on information supplied in a written complaint submitted by any party with standing under Rule 522.a. 1 . . . the Director has reasonable cause to believe the proposed Well or Oil and Gas Location is in material violation of the Commission's rules, regulations, orders or statutes, or otherwise presents an imminent threat to public health, safety and welfare.” 2 C.C.R. § 404‐1:303.j.

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38.

Commission Rule 303.b.1. requires the Commission’s approval for a completed Form 2A application at any “new Oil and Gas Location,” meaning any site involving “surface disturbance at a previously undisturbed site.”

39.

The Form 2A application incorporates Rule 604.c.2.E.i by requiring that “the operator must evaluate alternative locations for the Production Facilities that are farther from the Building Unit, and determine whether those alternative locations were technically feasible and economically practicable for the same proposed development.” (Emphasis added).

40.

Commission Rule 604.a.1. requires that “no Well or Production Facility shall be located five hundred (500) feet or less from a Building Unit except as provided in Rules 604.a.1. A and B, and 604.b.”

41.

Commission Rule 604.a.3. provides, “No Well or Production Facility shall be located one thousand (1,000) feet or less from a High Occupancy Building Unit without Commission approval following Application and Hearing.”

FACTUAL ALLEGATIONS A. Demographics 42.

The current student body at Bella Romero is 10.5% white, non‐Hispanic, 82.2% Latino or Hispanic, 6% African American, 1% Asian, as well as 1 student who identifies as Native Hawaiian or other Pacific Islander, and 2 students who identify with two or more races, according to the Colorado Department of Education.

43.

At Frontier Academy Elementary School, 73.6% of the student body is white, non‐Hispanic, and 21.4% Latino or Hispanic, 1% African American, 1.3% Asian, as well as 4 students who identify as American Indian or Alaskan Native, 2 students who identify as Native Hawaiian or other Pacific Islander, and 2% who identify with two or more races, according to the Colorado Department of Education.

44.

Extraction considers the site near Bella Romero as an alternative to placing the proposed facility near Frontier Academy Elementary School, at the South Greeley pad.

45.

Extraction indicated in a presentation attached to Sierra Club’s comment letter that the South Greeley site, near Frontier Academy Elementary School, was not an ideal location for oil and gas operations, in part because it was so close to a school.

46.

The playground at Frontier Academy Elementary School is further away from the South Greeley site than the playground and ballfields at Bella Romero are from the Vetting site.

47.

Similarly, Extraction indicated in the same presentation that other sites were also inappropriate for oil and gas operations based on their proximity to a playground or church (another community gathering place).

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B. The Health Impacts of Oil and Gas Development 48.

The health impacts of oil and gas development have been the subject of voluminous peer‐reviewed studies. There is a growing consensus among scientists that the volatile organic compounds (VOCs) and other pollutants associated with oil and gas development can cause serious health problems, especially in children. These impacts increase with closer proximity to oil and gas development.

49.

All studies raised in this complaint were brought to the attention of the Commission through public comment. Sierra Club et al., Comment on Extraction Oil and Gas LLC’s Form 2A Applications, Nos. 400940497 and 401051216, at 8 (June 22, 2016).

50.

The Commission’s response to public comments stated that the Commission “has determined that approval of these Form 2As are consistent with [the Commission’s] mission” without further explanation as to how this project is consistent with the protection of public, health, safety, and welfare.

51.

According to a study conducted in 2012, children exposed to polycyclic aromatic hydrocarbons (PAHs) in utero were more likely to be born preterm, of low birth weight, and with smaller skull circumferences. As the children grew, they showed signs of delayed mental development, lower IQ, attention problems, behavioral problems, and obesity. The negative effects of living near gas operations during prenatal development were observed by the study of 124,842 birth records from 1996–2009 in 57 rural Colorado Counties. McKenzie LM, et al., Human Health Risk Assessment of Air Emissions from Development of Unconventional Natural Gas Resources, SCI. TOTAL ENVIRON. (2012).

52.

Residents living within a half‐mile from wells are at a greater risk of health effects from unconventional oil and gas development than are residents living greater than a half‐mile from wells. Id. 53.

Because infants and children are more susceptible than adults to health impacts from unconventional oil and gas operations, studies recommend minimum setbacks of one‐mile from occupied dwellings, schools, and hospitals where they might spend a substantial amount of time. Ellen Webb, et al., Potential Hazards of Air Pollutant Emissions from Unconventional Oil and Natural Gas Operations on the Respiratory Health of Children and Infants, REV. ENVIRON. HEALTH (2016).

54.

In Colorado, symptoms reported in the state’s inspection/incident database by residents living within a half‐mile of well development included headaches, nausea, upper respiratory irritation, and nosebleeds. Roxana Z. Witter, et al., The Use of Health Impact Assessment for a Community Undergoing Natural Gas Development, FRAMING HEALTH MATTERS (2013).

55.

Literature further indicates that more than 75% of the chemicals used in oil and natural gas development processes can affect skin, eyes, and other sensory organs, and the respiratory and gastrointestinal systems; 40–50% can affect the brain and nervous system, immune system, cardiovascular systems, and the kidneys; 37% can affect the

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endocrine system; and 25% can cause cancer mutations. Theo Colborn, et al., An Exploratory Study of Air Quality Near Oil and Gas Operations, HUM. ECOL. RISK ASSESS. (Nov. 9, 2012).

56.

An air quality study conducted by Theo Colborn also discusses that the levels of PAHs found in Garfield County, CO, where oil and gas development occurs, were over three times higher than were found in a New York City cohort. See Theo Colborn, et al., Natural Gas Operations From A Public Health Perspective, HUM. ECOL. RISK ASSESS., Vol. 17: 1039–56 (2011).

57.

A September 2010 Colorado School of Public Health report on a prospective Health Impacts Assessment of proposed natural gas development in Garfield County found that it “has the potential to create a variety of stressors that can impact health.” The researchers reported “these stressors include air emissions, water and soil contamination, traffic, noise/vibration/light, community wellness, economic/employment changes, health infrastructure stress, and industrial accidents/malfunctions.”

58.

Another study of air quality near natural gas operations reveals that over the course of 2012, 61 chemicals were identified in air samples near oil and gas operations, including seven chemicals that were detected in every sample: toluene, formaldehyde, acetaldehyde, naphthalene, ethane, propane, and methane. A search of the government and scientific literature on health effects of chemicals identified in the air samples revealed that more than half of the 61 chemicals identified can affect the brain and central nervous system, the liver, and other metabolic systems. Theo Colborn et al., An Exploratory Study of Air Quality Near Natural Gas Operations, HUM. ECOL. RISK ASSESS. (Nov. 9, 2012).).

59.

Volatile organic compounds were studied at the Boulder Atmospheric Observatory during the winter of 2011 in order to investigate the composition and influence of VOC emissions from oil and natural gas operations in northeastern Colorado.

The Observatory is 30 kilometers north of Denver and is in the southwestern section of the Wattenberg Field, one of Colorado’s most productive oil and natural gas fields. The analysis of tower data filtered by wind sector reveals a strong alkane and benzene signature in air masses coming from northeastern Colorado, where the main activity producing those compounds is related to oil and gas operations over the Denver‐Julesburg Basin. J.B. Gilman, et al., Source Signature of Volatile Organic Compounds (VOCs) From Oil and Gas Operations in Northeastern Colorado, ENVIRON. SCI. TECHNOL. (Jan. 14, 2013).

60.

The technology used to recover oil and natural gas depends on the use of undisclosed types and amounts of toxic chemicals. See Theo Colborn, et al., Natural Gas Operations From A Public Health Perspective, HUM. ECOL. RISK ASSESS., Vol. 17: 1039–56 (2011).

61.

All of the above health impact studies were before the Commission as part of the record at the time it issued Form 2 and Form 2A permits to Extraction to develop minerals at the Bella Romero site.

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62.

The Commission did not adequately address the health studies submitted through public comment and failed to sufficiently respond to public comments regarding the negative impacts to public health, safety, and welfare in the Bella Romero community C. Permitting the Bella Romero Site 63.

Extraction submitted to the Commission two types of applications relevant to this case: Form 2 (application for permit to drill) and Form 2A (an oil and gas location assessment).

64.

The Form 2A application is intended to provide the Commission with information about the location and activities to occur on the proposed site, including details regarding the number of wells and/or production facilities, and whether the plans adhere to Commission regulations and minimum setback requirements.

65.

On May 12, 2016, Extraction filed a Form 2A application with the Commission to build the Vetting 15‐H Well Pad, a 24 well pad and two modular large volume tanks at the Bella Romero site.

66.

On May 12, 2016, Extraction submitted accompanying Form 2 applications for the 24 wells it intends to drill on the well pad.

67.

On May 26, 2016, Extraction filed another Form 2A application with the Commission for the Vetting Facility, the associated multi‐well production facility consisting of 24 separators, 18 oil tanks, 4 vapor recovery units, 4 water tanks, and one LACT unit directly adjacent to the Vetting 15‐H Well Pad. 68.

Commission regulations require a minimum setback of 1,000 feet between wells or production facilities and high occupancy building units, such as Bella Romero, and a minimum setback of 500 feet between wells or production facilities and building units, such as residences. 2 C.C.R. § 404‐1:604.a.

69.

The Vetting 15‐H Well Pad Form 2A application asserts that the nearest wells are 1,360 feet from Bella Romero Academy and 509 feet from neighborhood homes. The Vetting Facility Form 2A application asserts that it is 1,364 feet from the Bella Romero Academy and 771 feet from neighboring homes.

70.

The 1,000 foot buffer zone around both the production facility and well pad extends onto portions of the ball fields, which are situated between the proposed oil and gas development and the school building.

71.

During the public comment period, the Public Health Advocates and other concerned citizens submitted comments voicing concern about the health impacts associated with building a production facility and well pad so close to a residential area and school.

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72.

The comments express how the minimum setback standards are insufficient to protect the public health, safety, and welfare of the surrounding community.

73.

The Commission failed to address public concerns about the close proximity between the project and the school, other than to say the project meets Commission minimum requirements and that the proximity of the school soccer fields to the wells were not considered as part of their analysis: “[Commission] Rules do not address a setback to the property boundary or playground associated with High Occupancy Building Units, only the building itself. Therefore, these two Vetting locations do not require a hearing before the Commission for approval due to their proximity to the Bella Romero School.”

74.

The Commission declined to explain how compliance with its setbacks adequately protects the public health, safety, and welfare of students attending Bella Romero.

75.

Public comments also point out the insufficient detail in the administrative record regarding consideration of alternative sites for the Vetting 15‐H Well Pad and Vetting Facility.

76.

In response to Extraction’s original siting rationale submitted with the Form 2A applications for this site, the Commission requested Extraction provide supplemental siting rationale information because the Commission was unable to determine how this site was in compliance with Commission Rule 604.c.2.E.i.

77.

Some factors the Commission has required of other operators when determining whether to select an alternative site were identified in a correspondence from Commission staff and include: “Technical and economic feasibility, b) Environmental and topographic considerations, c) Right to construct considerations, d) Surface Owner and adjacent owner considerations, e) Cultural concerns such as: access, infrastructure, proximity to Building Units, and future development plans, etc, f) Public concerns, and g) Local government input.”

78.

Similarly, some additional supporting information that the Commission has required for other operators in the area for their siting rationale include: “a) Figures, not limited to: tax assessor map screen shots, flood plain maps, property surveys, aerial images, maps or aerial images showing Building Units and depicting radii showing the relative position of the Oil and Gas Location and b) Narrative descriptions of interactions with Surface Owners, nearby Building Unit owners, Local Governments and neighborhood organizations.”

79.

Among other things, the Commission did not require, and Extraction did not provide in its Site Rationale, a comparison between technical and economic feasibility considerations, environmental considerations, adjacent owner considerations, public and cultural concerns, or local government input for the Vetting site and any other locations further away from Bella Romero Academy and adjacent homes.

80.

Extraction’s (final revised) Site Rationale states in part: 11

“The facility is located over 1,300 feet from [Bella Romero Academy] and over 700 feet from [nearby homes]. Additionally, the facility has been located to achieve the greatest setback possible from the limits of the school property located to the northwest, yet as far away as possible from the residential homes located to the south and east.”

81.

The Form 2A applications and supporting documentation submitted by Extraction lack any substantive detail regarding safe alternative locations and merely provide conclusory statements as to its compliance with Commission permit conditions and Commission Rule 604.c.2.E.i.

82.

For example, Extraction does not explain its conclusion that “the Vetting location [is] the only technically feasible option” for developing minerals located under central Greeley.

83.

Extraction also provides no factual basis for asserting that longer laterals are not feasible.

84.

The Commission never explicitly adopted Extraction’s siting rationale as part of the basis of its approval of the Vetting Form 2As. 85.

Instead, in its response to public comments, the Commission stated that it “reviewed these permit applications for compliance with our rules” and then concluded “that approval of these Form 2As are consistent with [the Commission’s] mission to foster the responsible development of the state’s oil and gas resource and that the development can occur in a manner that will avoid or minimize adverse environmental impacts, and protect public health, safety and welfare.”

86.

The Commission did not explain how Extraction’s revised Site Rationale comports with Rule 604.c.2.E.i.

87.

The Commission declined to explain why no alternative locations further from Bella Romero Academy and nearby homes were available or feasible. The Commission never described any alternative locations at all.

88.

The Commission issued the permits on March 10, 2017.

89.

On March 15, 2017, Public Health Advocates requested that the Commission convene a hearing regarding Extraction’s proposed development adjacent to Bella Romero.

90.

On March 20, 2017, members of the Public Health Advocates groups reiterated their request for a hearing before the Commission during the Commission’s regularly scheduled hearing.

91.

Advocates.

The Commission never responded to either request from Public Health

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First Claim for Relief The Commission failed to explain how its duty to protect public health, safety, and welfare was met in this case.

92.

93. welfare.

The above paragraphs are incorporated herein by reference.

The Commission has a mandatory duty to protect public health, safety, and

94.

The General Assembly determined it was in the public interest to “foster the responsible, balanced production, development, and utilization of oil and gas in the state of Colorado in a manner consistent with the protection of public health, safety, and welfare.” C.R.S. § 34‐60‐102(1)(a)(I) (emphasis added).

95.

The Commission has the authority to regulate oil and gas development “so as to prevent and mitigate significant adverse environmental impacts . . . to the extent necessary to protect public health, safety, and welfare.” C.R.S. § 34‐60‐106(2)(d).

96.

To achieve the protection of public health, safety, and welfare, the regulations provide that the Director can impose safety measures that go beyond the minimum requirements. See 2 C.C.R. § 404‐1:303.j; C.C.R. 2 § 404‐1:305.e. Public Health Advocates submitted extensive scientific reports, studies and data demonstrating that oil and gas operations, such as the siting of production facilities as well as the drilling and completion of oil and gas wells, have adverse impacts on public health, safety and welfare. This included information demonstrating that the zone of impacts would include areas in proximity to the operations such as Bella Romero Academy, the athletic fields and the surrounding community. This also included information demonstrating that the Commission’s minimum setbacks from homes and schools are insufficient to protect the public health.

97.

The Commission failed to explain why its approval of the Vetting 15‐H Well Pad Form 2A, the Vetting Facility Form 2A, and the associated Vetting Form 2s were consistent with protection of public health, safety, and welfare when it did not meaningfully respond to the scientific literature presented during public comment.

98.

Such failure was arbitrary, capricious, not in accordance with law, an abuse of discretion, contrary to the record, and in excess of the Commission’s statutory authority and jurisdiction.

Second Claim for Relief The Commission failed to ensure that the production facilities are as far as possible from building units.

99.

The above paragraphs are incorporated herein by reference.

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100. Commission Rule 604.c.2.E.i. requires that “[m]ulti‐well production facilities shall be located as far as possible from Building Units.”

101. The Commission has a duty under Commission Rule 604.c.2.E.i not to permit multi‐well production facilities, such as the Vetting Facility, unless they are located as far as possible from Building Units.

102. The Form 2A application instructions indicate how the Commission interprets the Commission Rule 604.c.2.E.i., providing directions for how operators are to ensure production facilities are as far as possible from building units. Specifically, the Form 2A application requires operators to “evaluate alternative locations . . . that are farther from the [closest] Building Unit” than the proposed production facilities.

103. Extraction’s Response to Public Comments and final revised Siting Rationale do not provide a sufficient basis for determining the Vetting Facility conforms with Rule 604.c.2.E.i.

104. Extraction’s Response to Public Comments and final revised Siting Rationale do not establish that alternate sites are technically or economically infeasible or establish that other sites were not available.

105. The Commission never expressly adopted Extraction’s reasoning, nor independently determined that the Vetting Facility is located as far as possible from building units. Instead the Commission only stated that it “reviewed these permit applications for compliance with our rules” and concluded that “approval of [the Vetting Facility Form 2A is] consistent with” the Commission’s mission.

106. Based on the above, the Commission’s approval of the Vetting Facility Form 2A was arbitrary, capricious, not in accordance with law, an abuse of discretion, unsupported by substantial evidence and contrary to the record, and in excess of the Commission’s statutory authority and jurisdiction.

Third Claim for Relief The Vetting Facility Form 2A application is inconsistent with Commission Rule 604.c.2.E.i.

107.

The above paragraphs are incorporated herein by reference.

108.

The language of Commission Rule 604.c.2.E.i. provides: Where technologically feasible and economically practicable, operators shall consolidate wells to create multi‐well pads, including shared locations with other operators. Multi‐well production facilities shall be located as far as possible from Building Units.

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109. Under the plain language of the regulation, the “technologically feasible and economically practicable” language applies only to the consolidation of multi‐well pads. It does not apply to locating multi‐well production facilities, which in fact “shall” be “as far as possible” from building units.

110. The Vetting Facility Form 2A application, interpreting Commission Rule 604.c.2.E.i. states: Pursuant to Rule 604.c.2.E.i., the operator must evaluate alternative locations for the Production Facilities that are farther from the Building Unit, and determine whether those alternative locations were technically feasible and economically practicable for the same proposed development.

111. Thus, in the Vetting Facility Form 2A application, the Commission incorrectly limits the operator to considering only technical and economic factors when determining whether alternative locations exist that would place multi‐well production facilities farther from building units than the current proposed site. Rather, the “technically feasible and economically practicable” language only applies to the consolidation of multiple wells into a multi‐well pad.

112. When determining whether alternative locations exist for multi‐well production facilities the analysis should include consideration of numerous factors that were not included here, such as those set forth in paragraphs 77‐78 above. The Commission has required this information for the siting rationale for other multi‐well production facilities.

113. The Commission based its approval on the Vetting Facility Form 2A application, which incorrectly limits the alternative site analysis, is inconsistent with Commission Rule 604.c.2.E.i. and is therefore arbitrary, capricious, not in accordance with law, and in excess of the Commission’s statutory authority and jurisdiction.

PRAYER FOR RELIEF Public Health Advocates respectfully request that this Court: 1. Declare that the Commission’s approval of Extraction’s Vetting 15‐H Well Pad Form 2A, Vetting Facility Form 2A, and Vetting Form 2s exceeds the Commission’s jurisdiction, is arbitrary, capricious, and an abuse of discretion, and is not in accordance with law.

2.

Declare that Extraction’s Vetting Form 2 permits to drill are invalid.

3.

Vacate the Commission’s approval of Extraction’s Vetting Facility Form 2A.

4.

Form 2A.

Vacate the Commission’s approval of Extraction’s Vetting 15‐H Well Pad

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drill.

5.

Vacate the Commission’s approval of Extraction’s Vetting Form 2 permits to

6.

Remand the proceedings back to the Commission for a decision consistent with the ruling of this Court.

7.

Award Public Health Advocates their costs pursuant to Colorado Rule of Civil Procedure 54 to the extent permitted by law.

8.

Grant further relief that the Court finds just and proper.

DESIGNATION OF RECORD

Public Health Advocates designate the following documents as relevant parts of the administrative record pursuant to the Colorado Administrative Procedure Act, C.R.S. § 24‐ 4‐106(6): 1.

The original or certified copies of all applications and attachments thereto, evidence, memoranda, exhibits, public comments, and other papers presented to or considered by the Commission regarding the approval of Extraction’s Vetting Form 2 and Form 2A application on March 10, 2017.

2.

Specifically, the record should include, but should not be limited to the following documents: Sierra Club et al. Comment on Extraction Oil and Gas LLC’s Form 2A Applications, Nos. 400940497 and 401051216, including all attached exhibits and cited health impact studies; The Final Approved Form 2A for both the Vetting Facility and Vetting 15‐H Well Pad; Extraction’s initial Site Rationale (No. 401052188); Extraction’s final revised Site Rationale (No. 2478033); Operator Response to Public Comment (No. 2478062); COGCC Response to Public Comment (No. 2478098); the request dated March 14, 2017 from Sierra Club et al. for a Rule 508.j. Hearing on the Form 2As and Form 2s associated with the Vetting development; the approved Form 2A and associated documents for the South Greeley Directional oil and gas project (Location ID # 433138); and Public Comments and Testimony from the March 20, 2017 Commission hearing in Loveland, Colorado.

Respectfully submitted this 11th day of April, 2017

_______s/ Kevin J. Lynch________ Kevin J. Lynch Timothy Estep Jack Stokan (student attorney) Drew Hoffman (student attorney) Margaret Casey (student attorney)

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