Climate Inaction: How Colorado’s landmark emissions law went up in smoke

18 months after passage, House Bill 19-1261 is stalled before a key rulemaking panel

By: - October 6, 2020 6:30 am

Craig Station, a coal-fired power plant in northwest Colorado, is scheduled to be retired by 2030. (Jimmy Thomas/ BY 2.0)

This is part 2 of the three-part series “Climate Inaction,” which examines the troubled relationship between Gov. Jared Polis and a landmark climate action law.

Part 1: Delays and disappointment mark two years of Colorado’s clean-energy push

Part 3: Lawsuits, roadmaps and Colorado’s uncertain clean-energy future

Gov. Jared Polis marked the end of his first year in office with his annual State of the State address to the Colorado General Assembly on Jan. 9. He came bearing a carefully choreographed piece of good news, courtesy of the Westminster-based Tri-State Generation and Transmission Association, which provides electricity to rural utilities serving more than 1.3 million customers across Colorado and several neighboring states. Tri-State had long been criticized as a laggard on clean energy, but that, the governor said, was about to change.

“Just this morning,” Polis told lawmakers, “Tri-State and its members announced that they will be replacing their remaining coal power in the state with thousands of megawatts of cheaper and cleaner renewable energy sources by 2030, resulting in a 90% reduction in the utilities’ in-state greenhouse gas emissions.”

It was exactly the kind of clean-energy victory that fit neatly into Polis’ theory of change: a voluntary commitment demonstrating that the transition away from fossil fuels was being “driven by the private sector” and “technological advances,” he said, not government mandates.

Ean Thomas Tafoya, an organizer with environmental advocacy group GreenLatinos, heard the opening lines of Polis’ address from the halls of the State Capitol, just outside the House chambers where lawmakers were gathered. By the time the governor turned to climate change and Tri-State, however, Tafoya and 37 other activists were outside in handcuffs, being loaded into police vans.

“I got arrested because I was trying to raise my voice about what was happening to immigrant children,” Tafoya told Newsline in an interview.

38 climate activists were arrested for demonstrating inside the Colorado State Capitol during Gov. Jared Polis’ State of the State address on Jan. 9, 2020. (Chase Woodruff/Colorado Newsline)

The 38 activists, mostly members of the groups Extinction Rebellion and the Sunrise Movement, were hauled out of the Capitol by state troopers after chanting, singing and dropping banners from the House gallery before and during Polis’ speech. Demonstrators had sought to put pressure on Polis and the legislature to accelerate the transition to clean energy by ending fracking in Colorado, especially near vulnerable communities. “No wells at Bella Romero,” one banner read, referring to the predominantly low-income and Latino school in Greeley where a nearby drilling operation was underway. “No more sacrifice zones.”

The protest, which resulted in trespassing charges that were later dropped, was yet another battle in Colorado’s long-running oil and gas wars, which have dominated energy politics at the state level for much of the last decade. The pattern has recurred throughout the post-2010 shale drilling boom, with Colorado’s Democratic establishment trying — and mostly failing — to keep the peace between hardline anti-fracking activists calling for bans or harsh restrictions on drilling and the deep-pocketed industry groups who wield enormous influence at the Capitol.

While the issues of climate change and oil and gas extraction are closely intertwined in the eyes of many environmental activists, Colorado Democrats have largely sought to keep them separate from one another in setting state energy policy. That much was plainly evident during the 2019 legislative session, when Democratic lawmakers passed Senate Bill 19-181, a long-awaited package of oil and gas reforms that made little direct reference to climate change, and House Bill 19-1261, a climate-change bill that didn’t mention oil and gas drilling.

HB-1261, dubbed the “Colorado Climate Action Plan” and championed by some of the legislature’s most powerful Democrats, was a historic bill, committing the state to a series of greenhouse-gas emissions goals that included a 26% cut by 2025, a 50% cut by 2030 and a 90% cut by 2050. But while the bill was highly ambitious in scope, it had at least one thing going for it: by sidestepping the issue of oil and gas drilling, its implementation would, in theory, prove far less controversial than Colorado’s never-ending fracking wars.

There’s a broad expert consensus on how Colorado and governments around the world can achieve net-zero emissions, and it can be boiled down to a simple mantra: clean up the electric sector, and “electrify everything.” Replace gas-guzzling cars with electric vehicles, or, better yet, electrified public transit; replace gas-burning furnaces with electric heat pumps; replace gas-burning stoves with induction appliances — and power it all with an electric grid that runs on wind, solar and other carbon-free alternatives.

To moderate Democrats and mainstream environmental groups, these “demand-side” climate policies have far more appeal than fracking bans or other measures that seek to limit the supply of fossil fuels. While they present enormous technological and financial challenges of their own, demand-side policies represent a less direct and immediate threat to powerful oil and gas interests, attempting instead to ease the industry into a market-driven decline. In the words of former Colorado Gov. John Hickenlooper — long a target of activist criticism for his record on energy issues — policies that “cut off the demand” for fossil fuels will help “make fracking obsolete.”

A 2018 U.N. report warned that global CO2 emissions must rapidly decline and reach net-zero by 2050 in order to avert the worst impacts of climate change. (IPCC)

That’s a transition that could take decades to complete, but experts say that deep, unprecedented global cuts must be achieved within a matter of years. In a landmark 2018 report by the U.N.’s Intergovernmental Panel on Climate Change, scientists urged world governments to reduce overall emissions 45% by 2030. While technically feasible, such a rapid decline would represent a dramatic reversal from more than 150 years of nearly uninterrupted global emissions growth.

Like the United States as a whole, Colorado has seen its annual greenhouse gas emissions decline slightly since peaking around 2010, a shift driven largely by the electricity sector’s move away from coal-powered generation in favor of renewables and natural gas. In most other sectors, however, including transportation, building fuel use and industrial production, statewide emissions have continued to rise steadily — a trend that will need to be quickly reversed to meet the 2025 and 2030 targets set by HB-1261.

With the bill now law, the responsibility for putting the state on a path to achieving its goals fell to the Air Quality Control Commission, a seven-member rulemaking panel composed of part-time, volunteer commissioners who meet once per month. The commission is assisted in its work by staff from the Air Pollution Control Division, part of the Colorado Department of Public Health and Environment.

While the task given to the AQCC by HB-1261 was daunting, advocates for aggressive climate action believed the new law was in good hands, with broad agreement among commissioners on the need for swift, sweeping regulatory action. On Nov. 21, 2019, six months after the bill’s passage, the commission was briefed by officials from the APCD and other state agencies on the development of a policy “roadmap” to meet HB-1261’s goals.

“I would urge us and you to continue to think about how to accelerate the timeline,” Auden Schendler, an AQCC commissioner and vice president of sustainability for the Aspen Skiing Company, told state officials. “I was looking at some analysis of the gap and what we’re trying to do — it’s super aggressive.”

“I find myself with a sense of urgency that wants to push us to go faster,” agreed commissioner Elise Jones. “My understanding is that the gap we’re trying to make up is pretty significant.”

“I think we share the sense of urgency,” replied John Putnam, the CDPHE’s director of environmental programs.

Over the course of the following year, Colorado climate-action advocates would grow less and less certain that that was the case.

Staff at the Colorado Department of Public Health and Environment are tasked with assisting the state’s Air Quality Control Commission with regulatory efforts. (Chase Woodruff/Colorado Newsline)

Under the broad authority granted to the AQCC by HB-1261, some advocates hoped to see a sweeping new regulatory framework, like a cap-and-trade system, to limit emissions across all sectors, while others envisioned a more targeted approach, combining sector-specific policies like electric-vehicle mandates and incentives for electric heating systems.

But nearly everyone agreed — or at least appeared to agree — on one thing: the AQCC was required by HB-1261 and a companion bill, Senate Bill 19-096, to propose a set of rules aimed at reducing greenhouse gas emissions by July 1, 2020.

“In our view, in our reading of the legislation, we always expected there to be a comprehensive rules package that would achieve the goals laid out in the legislation,” said Stacy Tellinghuisen, a senior climate policy analyst with Western Resource Advocates, a Boulder-based environmental group.

“There is a deadline of July 1 to notice a proposal for rulemaking to establish some reduction measures that help us realize some of the goals that we’re being directed (to achieve),” said Dena Wojtach, manager of the APCD’s policy and planning program, while briefing commissioners on the legislation during a hearing on July 18, 2019. “A very aggressive timeline, understandably so.”

The law says: “The commission shall … by July 1, 2020, publish a notice of proposed rulemaking that proposes rules to implement measures that would cost-effectively allow the state to meet its greenhouse gas emission reduction goals.”

Over the next year, however, exactly what the law required the commission to do before July 2020 would become a key point of contention between advocates and the Polis administration.

“The commission shall,” the law states, “by July 1, 2020, publish a notice of proposed rulemaking that proposes rules to implement measures that would cost-effectively allow the state to meet its greenhouse gas emission reduction goals.”

Supporters of HB-1261 at the legislature believed that this language was unambiguous, establishing a clear deadline for the commission to begin work on a comprehensive set of emissions regulations. Polis, on the other hand, upon signing SB-96 had issued a signing statement maintaining that implementation of greenhouse-gas rules should be an “iterative and multi-faceted process” by multiple agencies and commissions.

Uncertainty about what that meant for the AQCC’s rulemaking process persisted for much of the year following HB-1261’s passage. At the commission’s November 2019 hearing, both commissioners and APCD staff left the impression that the commission would pursue a major greenhouse-gas reduction rulemaking before July 2020.

“I look at the legislation that’s directing the work of this commission, and the July deadline for us to have introduced rules that will put us on a course to meet some pretty strict statutory deadlines on greenhouse gas emissions,” Jones, appointed by Polis to the AQCC in February 2019, said to a panel of state officials. “Is there any way we can speed up the (roadmap)? It worries me that it’s coming out in September and we will have to introduce our draft rule months earlier.”

A tentative schedule presented by Colorado air-quality regulators in November 2019 included a “GHG Reduction” rulemaking between May and September 2020. (CDPHE)

At the same hearing, the Polis administration presented commissioners with a tentative implementation schedule that included both a greenhouse-gas reporting rulemaking — a separate requirement under SB-96 — and a “GHG Reduction Rulemaking” beginning in May 2020. A degree of uncertainty, however, had crept into the way state officials talked about the law’s requirements.

“We’re still figuring out exactly the timing of this,” APCD director Garry Kaufman told commissioners. “Whether there’ll be a reduction component to the reporting rulemaking, wrapped into a single rulemaking, or (there) will be a separate rulemaking, as we advance our thinking on what some of these reduction components will be. We’ll figure that out early next year.”

In February, the APCD presented its plan to the commission: the reporting and reduction requirements would be combined into a single rulemaking, and the latter would include a single rule aimed at phasing out the use of hydrofluorocarbons, or HFCs, a minor class of greenhouse gases emitted by certain refrigerators and air conditioners. In a matter of months, the scope of the AQCC’s greenhouse-gas rules had been narrowed down to one new regulation on a pollutant that accounts for less than 1% of Colorado’s annual emissions, forgoing even modest new controls on carbon dioxide, methane and other gases from major source sectors.

The CDPHE denied multiple requests for interviews with Putnam, Kaufman or other department officials, citing scheduling conflicts.

“In terms of sticking to a schedule for greenhouse gas reductions, we are doing exactly what we said we were going to do last November,” Andrew Bare, an APCD spokesperson, wrote in an email. “The schedule we presented in November allows us to make real progress on emissions reductions, which we have achieved while also planning for continued progress in emissions reductions.”

Despite repeated requests, the department declined to provide detailed information relating to the decision to scale down the reduction rulemaking to the HFC rule alone — perhaps the single most pivotal policy choice made in the process of implementing HB-1261 — including when the decision was made, who made it and why.

Members of the activist group Extinction Rebellion joined a diverse coalition of environmentalists outside CDPHE’s headquarters in February 2020 to rally for more aggressive climate action. (Chase Woodruff/Colorado Newsline)

As it became clear that the Polis administration had no intention of moving forward with a major greenhouse-gas rulemaking before the July 2020 deadline, alarm bells began to ring within Colorado’s environmental advocacy community. In an unusual effort, a diverse coalition of groups — organized in part by Conservation Colorado, one of the state’s largest and most influential green organizations — began working together to ramp up pressure on the governor to act.

“It was somewhat unprecedented, at least in the environmental work that I’ve been doing for 20 years,” said Kelly Nordini, Conservation Colorado’s executive director. “Groups from all over the spectrum — you know, we could sit in a room and fight for days about all the different paths to get there, but (we had) absolute clarity around hitting those targets.”

The unique collection of groups united hardline activist groups like Colorado Rising, which in 2018 pushed a controversial ballot measure to expand buffer zones for oil and gas drilling, with more established, middle-of-the-road voices like the Environmental Defense Fund, which has faced criticism over its support for natural gas development. Informally dubbed the Colorado Climate Action Network, the coalition began meeting biweekly to discuss how to hold Polis accountable.

“When even some of the more moderate green organizations are jumping in, saying, ‘We’re not going to hit these targets at all,’ I think it’s obvious that he has not made enough progress,” Tafoya said.

In a letter sent to Polis and AQCC commissioners in February, the coalition warned that Colorado was “far off track” from meeting its new goals.

“Our organizations may differ in our theories of change, membership, tactics, and even how we believe we can close this emissions gap,” the letter read. “However, we are united in our commitment to meeting or exceeding the emissions goals and that the Air Quality Control Commission must take immediate, urgent action to put Colorado on track to meet these goals. We have a critical window of opportunity to make climate progress in Colorado a reality.”

Nearly eight months later, the coalition’s demands for “immediate, urgent action” have gone largely unmet. The AQCC passed its HFC rule in May; aside from an August 2019 mandate on automakers to sell more electric vehicles and a new set of rules governing emissions from oil and gas drilling, it’s the only greenhouse-gas regulation that the AQCC has enacted in the first 21 months of Polis’ governorship.

“The commission and the Air Pollution Control Division are continuing to work out the schedule for future rulemakings related to greenhouse gas reduction,” Bare said in a statement. “The ambitious environmental agenda means a full docket for the commission.”

In July, APCD staff presented the commission with a tentative schedule that included a transportation-sector rulemaking in mid-2021, with regulations on building energy use to follow by year’s end. For environmental advocates across the spectrum, that’s not good enough.

“I think we can only move faster, and should move faster,” Nordini said. “The current projections are that we are maybe halfway to the 2025 goal, given everything we’ve done so far. Think of everything we’ve done in the last number of years — in the utilities sector, zero emission vehicles, really good, important policies — and we’re only about halfway to where we need to be. So we need to move with all urgency.”

Colorado’s greenhouse gas emissions must decline rapidly over the next decade to meet statutory targets set by HB-1261. (Colorado Newsline)

The cloud of uncertainty surrounding the APCD’s decision-making process on the greenhouse gas reduction rulemaking extends even to advocates and experts who were among those most closely involved in the process.

“Back in November, they indicated an intent to propose a rulemaking and do comprehensive rules by July,” said WRA’s Tellinghuisen. “We were still optimistic even up until May … that we would still see a broad set of rules proposed.”

On May 21, a few weeks after the one-year anniversary of HB-1261’s passage, Colorado House Speaker KC Becker, who had led the effort to pass the bill at the legislature, spoke during a public comment period at the AQCC’s monthly hearing. The new law, she told commissioners, “unambiguously” required the introduction of a comprehensive set of rules before July.

“We want, and expect, and think that this statute created, binding reduction requirements that the AQCC is supposed to develop,” Becker said. “The commission must act now to take steps necessary to meet the July 1 deadline in Colorado law. It’s a clear obligation.”

Becker’s comments were echoed by several commissioners as the hearing continued the next day.

“We are not meeting our statutory deadline of having a draft rule published by July 1,” Jones said. “We don’t have it on our calendar to do that. The Speaker of the House made it very clear … that it’s on us, they gave us a deadline, and they expect us to meet it.”

The CDPHE’s Air Pollution Control Division has led the state’s implementation of its new climate laws. (Chase Woodruff/Colorado Newsline)

For the first time in a public hearing, however, administration officials bluntly rejected the interpretation of SB-96 and the July 1 deadline put forth by Becker, Jones and other advocates.

“I’m sorry, but I don’t agree that the statute is clear,” Kaufman said. “I think it’s unclear, vague and ambiguous, and I don’t agree that we’re not meeting our statutory deadlines.”

“These are incredibly challenging problems, and you don’t just stand up a major program in a month, or in two months,” he added. “I wish I could say there’s some magic regulation that we could implement, and it’s going to solve our problems. But history has shown so far that that’s not the case.”

After a year of quiet, behind-the-scenes tension, the disconnect between the Polis administration and other top Colorado Democrats on how the state should tackle climate change was finally out in the open.

“I feel like we’re caught in this kind of classic executive branch, legislative branch vice,” said Curtis Rueter, an AQCC commissioner and executive with Noble Energy, during the May hearing. “The legislative branch has given us a very clear direction — yet our staff works for the executive branch, and the executive branch is working on a different timeline.”

In retrospect, many advocates believe that the fate of HB-1261’s implementation at the AQCC had been sealed in May 2019, when Polis issued his SB-96 signing statement. And some look back on the noncommittal comments from CDPHE staff over the ensuing year and see an intentional caginess.

“I think staff did string the commission along,” Nichols said. “They weren’t voluntarily clear on what their intentions were, and certainly did not let on how relatively inconsequential the (GHG reduction) rulemaking would be.”

In an interview, Jones said that while she doesn’t believe that “anybody was being disingenuous,” there may have been a lack of clear communication between the commission and APCD staff on the implementation timeline.

“Perhaps we could have started asking the question in June of 2019 — ‘When are we doing this rulemaking, what’s the calendar look like?’ — and pushed harder,” Jones said. “Let’s recognize that the staff work for the administration, so they’re getting direction from the governor.”

Democratic Colorado Governor-elect Jared Polis arrives onstage with running mate Dianne Primavera on Nov. 6, 2018, in Denver. (Rick T. Wilking/Getty Images)

In the absence of clear explanations from state officials regarding how key decisions in the HB-1261 implementation process were made, climate-action advocates have been left to conclude that the Polis administration’s hesitance on emissions regulations comes straight from the top.

“When we engage with his administration, it’s very clear that there’s intense hesitation to push the envelope, and to be bold, and to acknowledge what truly needs to be done,” Nichols said. “And that defensiveness and hesitation seems to stem from the fact that the governor has not signaled that he’s bought in on this whole notion of aggressive climate action.”

More than half a dozen stakeholders, including an former AQCC member, involved in the commission’s rulemaking process, some of whom requested anonymity in order to speak candidly, told Newsline that they believed that the reluctance by top officials at CDPHE and other state agencies to pursue strong climate regulations is largely the result of marching orders from Polis himself. One environmental activist said that HB-1261’s sponsors and supporters felt “hoodwinked” by the governor’s eventual support for the bill, given the lack of regulatory action that has followed.

The governor’s office declined multiple requests from Newsline to interview Polis or his climate advisors, and he has offered little public comment on the specifics of the AQCC process. Ahead of the commission’s February hearing — as the Colorado Climate Action Network was organizing a campaign to pressure his administration to take swifter action — Polis penned an op-ed in the Pueblo Chieftain that indirectly addressed his critics.

“Throughout this process, we’ve learned that the problem can’t be solved by just adopting a singular rule or edict by the state,” Polis wrote. “The harder but more effective approach is to work with companies and communities on tailored solutions so we can make this transition work for everyone.”

Polis has adamantly rejected calls for a state-level cap-and-trade program — a position, some observers note, that may stem from his experience watching the failure of the so-called Waxman-Markey bill, a federal emissions-trading proposal, in his early years in Congress. By contrast, his administration has said it intends to pursue a more targeted, “sector-specific” approach.

But this preference alone doesn’t explain the AQCC’s lack of regulatory action to date. There’s no shortage of sector-specific policies that are endorsed by clean-energy experts and currently being implemented in other states. That Colorado officials have declined to pursue them over the last 18 months, opting to propose only a minor HFC rule as part of the GHG Reduction rulemaking, speaks to a broader reluctance, advocates say, to enact any regulations at all — though, as even some of the administration’s critics note, the state may have fewer resources than it needs to tackle such an enormous challenge.

“To some extent, the AQCC is at the mercy of staff,” Schendler, who sat on the commission until August, told Newsline in an interview. “And if they don’t have the staff, or they don’t have the time to get something done, then it’s going to get delayed. Whether there was anything going on in terms of pressure, I can’t say.”

The July 1 deadline passed without any further action by the AQCC. The commission canceled its July hearing, instead convening the first in a series of “Greenhouse Gas Strategy Subcommittee” meetings in which commissioners, advocacy groups and administration officials hoped to reach common ground on the state’s path forward.

In the weeks that followed, however, the impasse reached a breaking point. The next time the AQCC met in full, it would be a defendant in multiple lawsuits filed by environmental groups, and a different commission altogether, its balance of power shifted by a surprise shakeup of the commission ordered by Polis — the clearest indication yet of the chasm that had opened up between Colorado climate activists and the governor they’d hoped would be their champion.

Tomorrow, in part 3 of “Climate Inaction”: Lawsuits, backstops and the uncertain road ahead for Colorado climate policy.

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Chase Woodruff
Chase Woodruff

Reporter Chase Woodruff covers the environment, the economy and other stories for Colorado Newsline.