September 10, 2018

Fracking and the public trust doctrine: Did the court of appeals silently adopt an 800-year-old legal principle disavowed in Colorado?

Bradley H. Oliphant and Lindsey E. Dunn

In Martinez v. Colorado Oil & Gas Conservation Commission, ---P.3d ---, 2017 COA 37 (Colo. App. 2017), the Colorado Court of Appeals succeeded in doing what various public interest groups in Colorado have been trying to do for decades when it adopted the public trust doctrine to curtail fracking in the state—at least, that is, according to the Colorado Attorney General’s office.

In January 2018, the Colorado Supreme Court agreed to review Martinez, which elevated the protection of public health and the environment to “a condition that must be fulfilled” before oil and gas drilling can commence in Colorado. In asking for that review, Colorado’s Attorney General argued that the court of appeals not only rewrote Colorado’s Oil and Gas Conservation Act, but “in substance, adopt[ed] the public trust doctrine.” The Court has scheduled oral argument for October 16, 2018.

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