Earth Guardians’ 14-year-old Youth Director Xiuhtezcatl Martinez waited five months and two delays to have the chance to address the members of the Colorado Oil and Gas Conservation Commission and the director of the Colorado Department of Natural Resources. When he finally got his 20 minutes of time at the microphone, he got right to the point.
“I’m here to remind you of the failures the COGCC has had protecting the state of Colorado and the people of Colorado,” Martinez told the commissioners at their April 28 hearing.
Martinez spoke on behalf of his fellow Earth Guardians members, whose ages ranged from 9 to 15 and seven of whom attended the 2 p.m. hearing, following up on a 54-page petition submitted by Earth Guardians to the Colorado Oil and Gas Conservation Commission. The petition asked the commission and Mike King, the director of the Colorado Department of Natural Resources, to suspend issuing permits that allow hydraulic fracturing (fracking) until the process can be completed without adverse effects to human health and Colorado’s environment.
“The petitioners are youth, who represent the youngest living generation of public trust beneficiaries, and have a profound interest in ensuring that the climate remains stable enough to ensure their right to a livable future,” the petition reads.
Martinez’s presentation was based on data gathered off the oil and gas commission’s own website with the help of well-known anti-fracking activist Shane Davis, who has spent years compiling data on oil and gas development from the commission’s website.
“It was really, really intense because I really called them out and I don’t think they were expecting it at all,” Martinez told Boulder Weekly a day after the hearing. “It was definitely calling them out on all the mistakes that they’ve made and how they’ve failed to do their job of protecting the people of Colorado and doing what is in our best interest, not the best interest of the fossil fuel industry.”
“He highlighted all the studies I had done in the past only using the state’s data to show they’re not adequately prepared and equipped to allow more permits to happen in the state of Colorado just based on their failures of the past,” Davis says.
The issues with oil and gas development Davis points to include that 43 percent of oil and gas operator spills in Weld County lead to contaminated groundwater; that in 2009 a well casing failed in Weld County that contaminated a private landowner’s well 1,000 feet away as well as Colorado’s largest aquifer; that the state has only 17 inspectors, 13 of which are in the field at any given time, to inspect 52,000 active oil and gas wells annually — a rate of 4,000 per inspector per year — and 80,000 abandoned wells every five years.
“The single greatest failure that the state currently has is that they don’t look at their old information, they don’t quantify or qualify their own failures to further protect the future and the environment of tomorrow,” Davis says. “So I think it’s an epic failure and it’s definitely in bad faith, in my mind. They use adaptive management — they say, ‘Let’s wait for a problem to happen and then we’ll figure out a way to fix it.’ It’s too late. It’s already failed at that point. So we basically had to counsel them and scold them but really educate them and try to empower [the commission] to say, if the COGCC is not providing you with the information of the past, showing you all of their failures, how can you make adequate decisions to allow permitting to go forward? You can’t.”
During his presentation to the COGCC, Martinez cited Davis’s data on groundwater contamination, and asked, “How is that safe? How is that protecting the air, the water, the safety of the people? These are toxic, carcinogenic chemicals that are getting into the air that we breathe and the water that we drink.”
He also called the number of wells per inspector an “enormous fail,” cited studies from the Colorado School of Public Health connecting cancer incidence with individuals who live within half a mile of a well and showed photos of playgrounds and houses with oil and gas production equipment and condensate tanks looming nearby.
“The children of this state are being endangered because of your lack of responsibility when it comes to doing your job,” Martinez told the COGCC. “Two tons of hydrocarbon vapors every year, multiplied by the hundreds of thousands of these hydrocarbon vapor tanks, these industrial waste tanks that there are across the state, across the country, that is a major point source of pollution and you know it.”
Among his concerns about climate change and fracking, Martinez pointed out that it’s a process that requires millions of gallons of groundwater and releases methane, a greenhouse gas with a more potent effect on global warming than carbon dioxide.
“I’ll leave you with this, especially for you, Matt Lepore,” Martinez said concluding his presentation to the COGCC and directly referencing the commission’s director, “Everyone that has had your job before you has failed to protect the people of Colorado when it comes to natural gas extraction, but you, all the people here in the room, commissioners, you have the responsibility, you have the opportunity to turn things around to make a better choice, to make a difference and be the commission that changes Colorado, that stood up for the rights of the children, that stood up for the rights of the people in these communities that are going to be impacted, to clean up the water and the air.”
He told Boulder Weekly, “I think it was really powerful — we got a really clear message across that we’re not going to sit idly by while they make decisions that threaten the survival of everyone here in Colorado.”
His presentation was followed by responses made by executives from the Colorado Department of Public Health and Environment’s Air Pollution Control Division and Environment Epidemiology and Occupational Health section, the Department of Natural Resources’ Colorado Water Conservation Board, the Metro Denver Economic Development Corporation and Denver Metro Chamber of Commerce, Colorado Oil and Gas Association and Colorado Petroleum Association.
“I was really impressed with his presentation,” Garry Kaufman, deputy director of the Air Pollution Control Division for the Colorado Department of Public Health and Environment, told Boulder Weekly. “He’s very well spoken and certainly very passionate about the issue and I think he raised a number of good points. As I told the commission, it’s important that we all consider these issues, that there are impacts from oil and gas development and we need to have an open and honest discussion about that and I think the petition helps advance that dialogue. Again, we also need to look at all the facts and look at both sides when we’re considering what’s the best policy to make.”
During his response at the hearing, Kaufman pointed to new oil and gas regulations passed in February that expand the types of facilities for which air emissions regulations apply and push for low-bleed devices and tighter constraints on release valves.
“We estimated that approximately 93,000 tons of volatile organic compound emissions will be reduced a year, and VOCs, it’s kind of a host of chemical compounds anything from propane to butane to benzene to toluene, some of them are toxic, some of them are not, they’re all a concern with respect to the formation of ground level ozone,” Kaufman says. The public health department estimated that the rules would also reduce methane emissions by about 60,000 tons per year.
“We’re still trying to figure out exactly what’s being emitted from the entire industry, but it’s a pretty significant chunk,” Kaufman says.
He also pointed to the state’s 2010 draft inventory on greenhouse gas emissions to put the oil and gas industry in context with other sources of greenhouse gases. According to that inventory, he says, vehicles, electric generation and residential, commercial and industrial fuel use are the largest contributors to greenhouse gas emissions in the state — about 76 percent of greenhouse gas emissions from the state, while oil and gas production accounts for 6 percent.
“There was a lot in the petition about how it was necessary to stop oil and gas production because of the greenhouse gas emissions, and I don’t dispute it’s part of the inventory and certainly we’re very interested in finding ways to reduce the impact, not only on the VOC side but also on the greenhouse gas side,” Kaufman says. “If you’re going to take a comprehensive look at this issue, the climate change issue, really you need to look at all the sources and figure out what’s the best strategy to be employed to try to reduce emissions from those.”
Davis says he sees the math differently.
“Over 90 percent of all the fracking and the oil and gas operations in Colorado are for oil because the price of natural gas is so low that they’re just waiting for the price influx to go back up, they’ll flip the switch and then they’ll pull natural gas,” Davis says. “Here’s the point: Now that they’re extracting oil, they’re just venting a lot of this natural gas or burning it off or both, just like North Dakota, I think the estimates were roughly one third of all the natural gas that’s encountered in these operations in North Dakota are being burned off, and if you’ve seen North Dakota, you know that it looks like it’s on fire because there are so many flares.
“Now let’s look at all the parts and pieces that are on an active well pad that leak, not just willful emissions because under the Clean Air Act these well pads are not considered a major point source of pollution, they’re considered a minor, non-point source of pollution, and there are valves on top of every condensate tank that release hydrocarbons and VOCs willfully, legally. Now look at fugitive emissions, those that are leaking, the parts and pieces that are maybe broken or loose or just faulty. Now look at abandoned wells that nobody is testing for fugitive emissions. Combine them all together and say, ‘OK, what is the actual percentage of methane that’s being released in Colorado?’ Nobody knows and if they give you any number it’s absolute bullshit, because they’re not conducting good science.”
Michael VanDyke, Environment Epidemiology and Occupational Health section chief with the Colorado Department of Public Health and Environment, addressed the Earth Guardians’ statement of reasons the commission should grant the petition, which included that the “science unequivocally shows that hydraulic fracturing is adversely impacting human health and impairing Colorado’s atmosphere, water, soil, and wildlife resources.”
“The gist of my testimony was that I don’t think the scientific evidence supports that statement, that there are still a lot of questions that haven’t been answered, and frankly more studies need to be done before we know if these things do cause health effects and the magnitude of health effects that they potentially cause,” VanDyke told Boulder Weekly. “It’s a complicated issue, and I think that the health department has really approached this from the perspective of, ‘We really don’t have the information that we need, so we need to make sure that we have the strongest controls that we can implement in terms of regulations,’ and I think CDPHE has done a pretty good job of implementing those regulations over the past few years.”
The most recent regulations — those passed in February — are evidence of that statement, he says.
“Even without the studies, you’re proceeding down the line to really control the emissions to prevent possible health effects, even though we don’t know if those health effects are occurring or if they would occur,” VanDyke says.
But in response to Martinez’s presentation and the subsequent testimony from the Colorado Department of Public Health and Environment on the fact that studies don’t exist or have limitations, Jake Matter, assistant attorney general for the state of Colorado and the counsel of record for the Colorado Oil and Gas Conservation Commission’s lawsuit against Longmont for its fracking ban, asked, “Why haven’t those studies been done? Oil and gas has been being produced for a century and no public health agency has done these studies.”
He continued, “Even though I didn’t like it when Mr. Martinez was telling me I should be ashamed, this is something we should be ashamed of. I really have trouble with us hiding behind comments of limited value, many limitations, no studies exist, significant limitations, short period of time, inherent limitations. I have trouble with that. I have trouble with hiding behind our ignorance. And I would really, really, really like for our public health agency people to be fighting for me and my health.”
Davis, who personally cites health issues with migraines, palsy, a burning throat, nosebleeds and severe rashes, asks “What ever happened to the precautionary principle? That is good faith due diligence … to say let’s make sure this is safe before we put it out there. … I told the commission, ‘How can you say that this is safe when you have no objective science to prove it?’ Speculation is harmful. This is a really bad business model when you look at short terms gains and long term health effects. I lived in it. I had 75 wells around my house. I know what a nosebleed for a year and a half is like. They don’t.”
The Earth Guardians petition centers on the public trust doctrine, a principle that dates to the Roman empire and England’s Magna Carta that states that natural resources should be preserved for public use.
“The public trust doctrine does not apply to water quality, air quality or [greenhouse gas] emissions in the state of Colorado,” Jaime Jost, representing the Colorado Oil and Gas Association, said during the hearing.
The motion to put the petition in place was dismissed in a unanimous vote by the oil and gas commissioners.
“They hid behind stuff like that — legal complications as an excuse to not take actions when you know they’re in the back pocket of the oil and gas industry,” Martinez says.
Davis told Boulder Weekly what he learned was that they really needed to take the petition to the legislature.
“The COGCC does not have statutory authority to allow this permit and this type of regulation change and the stopping of drilling permits to happen,” Davis says. “Like I told Xiuhtezcatl when we were sitting there, ‘Just tell them we’ll be back, we’ll definitely be back,’ and it’s pretty sad that they wasted taxpayer money just to entertain us and to shoot us down by not telling us from the start that we were in the wrong venue.”
For his part, Martinez says, he’ll continue to organize educational events, demonstrations and petitions to ban fracking.
“I think there’s a lot to move forward from here,” Martinez says. “The industry plans to drill another 100,000 wells in the next few years and they’ve already drilled 132,000, so what that’s going to look like for the people of Colorado, what that’s going to look like for the health of the people is really, really devastating.”
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