Polis administration faces second lawsuit over delayed climate regulations

Environmental groups say state regulators violated deadline for greenhouse gas rules

The Colorado State Capitol in Denver is pictured on June 11, 2020. (Andy Bosselman for Colorado Newsline)

A second environmental group has filed a lawsuit against the state of Colorado over a landmark 2019 climate-change law, alleging that Gov. Jared Polis’ administration has flouted a key deadline for proposing new greenhouse-gas emissions rules. 

The lawsuit, filed by the Environmental Defense Fund on Aug. 5 in Denver District Court, names the state’s Air Quality Control Commission, a body of volunteer commissioners appointed by the governor, and the Air Pollution Control Division, a branch of the Colorado Department of Public Health and Environment, as defendants.

Like a similar suit filed last month by a separate group, WildEarth Guardians, EDF’s complaint claims that regulators violated state law by failing to propose a comprehensive set of greenhouse-gas rules before a July 1 deadline.

“EDF seeks an Order from the court that compels the Commission and the APCD to initiate such rulemaking forthwith,” the complaint states.

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EDF’s lawsuit — filed without fanfare on the last day of a 35-day judicial review period following the AQCC’s failure to propose the greenhouse-gas rules on July 1 — is perhaps the most significant escalation yet in what has become a quiet but tense conflict between environmentalists and the Polis administration over the direction of state climate policy.

Hopes were high when Polis, who campaigned on a promise of 100% renewable energy by 2040, won a sweeping electoral victory in 2018. But nearly two years later, a wide range of environmental groups has grown increasingly disappointed with the slow pace at which regulators are proceeding.

In a statement, Polis spokesperson Conor Cahill defended the administration’s approach, which has often relied heavily on market-based policies and voluntary commitments from the private sector.

“This administration has taken historic action to advance renewable energy and address the climate crisis,” Cahill said. “We are getting this done the Colorado way by working on smart strategies that lower emissions while strengthening our economy.”

July 1 deadline

The escalating conflict between Polis and advocates of stronger climate action centers on two pieces of climate legislation passed by Democrats in the Colorado General Assembly in 2019. The first, House Bill 19-1261, codified a series of emissions targets for the state to achieve through 2050. The second, Senate Bill 19-096, strengthened reporting requirements and directed the AQCC to propose “measures that would cost-effectively allow the state to meet its greenhouse gas emission reduction goals” by July 1, 2020.

Polis opposed strict mandates on polluters in early drafts of HB-1261, clashing with House Speaker KC Becker over the issue, according to a report from the Colorado Independent. Ultimately, the bill eschewed mandates in favor of softer language stating that Colorado “shall strive … to eliminate statewide greenhouse gas pollution” and set “goals” for the AQCC and other rulemaking bodies to achieve, including a 50% reduction by 2030 and a 90% reduction by 2050.

In the months following HB-1261’s passage, environmental groups expected the AQCC’s first major greenhouse-gas rulemaking to begin before the July 1 deadline, and as recently as the commission’s November 2019 meeting, APCD staff presented commissioners with a tentative rulemaking timeline that included a lengthy “GHG Reduction Rulemaking” scheduled between May and September 2020.

A tentative rulemaking schedule presented by Colorado air-quality regulators in November 2019. Greenhouse gas reduction rulemakings were later delayed. (CDPHE)

But regulators later changed course, ultimately proposing a narrow rule change relating to hydrofluorocarbons (HFCs), a minor class of greenhouse gases commonly used in refrigerators and air conditioners. That followed the commission’s enactment of a Zero Emission Vehicle rule, which required automakers to sell more electric cars within the state, and a set of regulations on oil and gas emissions required by Senate Bill 19-181.

Those three regulatory changes are the only actions the AQCC has taken to reduce greenhouse gas emissions since the passage of HB-1261 — and EDF’s lawsuit, pointing to the state’s own data, says that they’re not nearly enough to meet the new statutory goals. Combined, the three new rules add up to only an estimated 1.6 million tons of annual emissions reductions by 2030 — a tiny fraction of the 64.7 million tons the state needs to cut from its annual emissions to meet its goals.

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“The Commission and APCD have not, and could not, satisfy their obligation to meet the state’s GHG reduction goals through the promulgation of the ZEV, oil and gas, and HFC regulations alone,” the lawsuit says. “By Defendants’ own admissions, and assuming full compliance, the (rules) will only meet approximately 2.7% of the state’s 2030 GHG reduction goal.”

The Polis administration maintains that it wasn’t necessary to propose further rules before July 1 in order to meet HB-1261’s goals. The AQCC is currently planning to enact two major sets of greenhouse gas rules — one regulating transportation emissions and another relating to building energy use — in the second half of 2021.

“We are confident we are fully in compliance with both laws,” said Andrew Bare, a spokesperson for the APCD. “We will continue to pursue effective, scientifically supported policies to reduce greenhouse gas emissions and address climate change.”

“Colorado has fully complied with the requirement in SB 19-096 to propose rulemakings that would be necessary to meet the HB 19-1261 goals and is operating under a real-world budget situation,” Cahill said.

An EDF representative was not available for an interview. Based in New York City and boasting a staff of over 700, the group is widely viewed as a moderate voice in environmental policy circles, and has faced criticism from more progressive groups, including for its support for fracking. The group’s Rocky Mountain regional director, Dan Grossman, is slated to appear this week on a panel at the Colorado Oil and Gas Association’s annual summit, representing “pragmatic stakeholders on the other side of the issue.”

AQCC commissioners will continue to deliberate on future climate measures at a “GHG Strategy Subcommitee” meeting on Aug. 18. Additional clarity on the Polis administration’s climate policies is expected with the release of an emissions “roadmap” slated to be completed by the Colorado Energy Office in September.

On Aug. 12, state officials held a listening session to gather feedback from the public and key stakeholders on the roadmap process. Many local officeholders, including several whose communities are currently being impacted by major drought-intensified wildfires, spoke during a public comment session and urged state leadership to move forward more aggressively on climate regulation.

“We are behind,” George Marlin, a Clear Creek County commissioner and a board member at Colorado Communities for Climate Action, told officials. “I’m asking the AQCC to redouble its efforts and find ways to move more quickly on these rulemakings.”