Climate Inaction: Lawsuits, roadmaps and Colorado’s uncertain clean-energy future

“Where does the governor stand on these issues?”

That was the question posed by Auden Schendler, a then-member of Colorado’s Air Quality Control Commission, in early July, just after the commission missed what climate-change activists had interpreted as a statutory deadline to propose comprehensive greenhouse gas emissions rules. And it’s the question that has defined much of the last two years of Colorado climate policy.

It was Polis’ opposition to early drafts of historic piece of emissions legislation, House Bill 19-1261, that had delayed its rollout by top Democrats at the Capitol and ultimately softened some of its key provisions. It was Polis who had quietly issued a signing statement that the bill’s supporters interpreted as undermining its intent. And it was Polis, many climate-action advocates had come to believe, who had steered the AQCC and regulators at the Colorado Department of Public Health and Environment away from enacting strong, enforceable regulations in the year since HB-1261’s passage.

As a result, Colorado’s efforts to confront the climate crisis during the first half of Polis’ gubernatorial term have differed sharply from what many advocates envisioned two years ago. While Polis, a multimillionaire tech investor whose campaign spending helped shake up state politics in the mid-2000s, has never been a conventional Democrat — “he’s kind of a libertarian,” Schendler said in an interview — few anticipated the degree to which he would stand in the way of the climate policies favored by much of the rest of his party.

In 2018, Polis campaigned on a promise of putting the state on a path to a 100% renewable electric grid by 2040 — but, in a sign of what was to come, stressed to his conservative critics at the time that his plan didn’t include “top-down” regulatory measures like raising Colorado’s renewable energy standard, which was first passed by Colorado voters in 2004 and mandates that utilities generate a certain percentage of their electricity through renewables.

Instead, Polis told Colorado Politics at the time, his plan relied on “a bottom-up approach using market mechanisms, like encouraging distributed wind and solar projects (and) removing regulatory barriers to siting wind projects on state lands.”

That preference for market-driven climate action has endured throughout Polis’ governorship. Even before being sworn in, he joined executives from Xcel Energy at a press conference in Denver to unveil the utility’s pledge to achieve an 80% cut in emissions by 2030, and he hailed a similar announcement by Westminster-based electricity wholesaler Tri-State Generation and Transmission Association in his 2020 State of the State address. He’s frequently seized opportunities to celebrate clean-energy efforts by the private sector, from Lyft’s 2019 announcement that it would add 200 electric vehicles to its Colorado fleet to an effort to encourage breweries to sell excess CO2 to marijuana growers.

Even one of the few enforceable climate policies enacted by his administration — a zero emissions vehicle rule requiring automakers to sell a certain percentage of electric cars within the state — came through a “compromise approach” negotiated with industry groups.

“How much of it is … incentives and market enhancements, versus more mandate-heavy (policies)?” Elise Jones, an AQCC commissioner, said in an interview. “I think it’s fair to say that this administration would love to see how far they can get with a whole array of different programs, some of which include regulation, but not all of them.”

That’s not a view widely shared by clean-energy experts and advocates around the world, many of whom stress that aggressive policy intervention and massive public investments will be necessary to meet science-based emissions targets. Especially in more challenging sectors like transportation and buildings, scientists say, governments have a central role to play in achieving the “rapid, far-reaching and unprecedented changes in all aspects of society” that the U.N.’s Intergovernmental Panel on Climate Change warned in a 2018 report are necessary to avert the worst impacts of a warming planet.

The lawmakers who passed HB-1261 believed they had crafted legislation that required state government to play an active role in making those changes. And plenty of supporters of aggressive action sat on the AQCC, including Schendler, a sustainability executive for the Aspen Skiing Company who had been appointed to the commission by former Gov. John Hickenlooper in 2018. Schendler is the author of a 2009 book, “Getting Green Done: Hard Truths from the Front Lines of the Sustainability Revolution,” that reads in many ways like a rebuke to the private-sector-led approach to decarbonization that Polis would pursue a decade later.

“Government agencies and nonprofits pushing green business have a vested interest in the story that this is a pretty smooth ride,” Schendler wrote. “The former are trying to make policy and politicians look good, and the latter are trying to push their mission and raise money based on their success. The same is true for corporations, which are trying either to position their brand or to convince customers and shareholders that what they’re doing makes sense and works.”

“Business is designed to make money, and making money means creating more carbon emissions, often through growth,” he continued. “Without carbon regulation … business is always going to default to profit at the expense of the atmosphere, because it costs nothing to pollute.”

As Jones, Schendler and other members of the AQCC grew more vocally dissatisfied with the pace at which the state’s implementation of HB-1261 had moved, the commission held the first in a series of “Greenhouse Gas Strategy Subcommittee” meetings in July, offering commissioners, administration officials and environmental advocacy groups a chance to potentially hash out their differences on the state’s long-term approach to climate policy. For the first time, CDPHE staff outlined a regulatory schedule that included rulemakings on transportation and buildings, two of Colorado’s largest sources of emissions, in mid-to-late 2021.

Schendler, however, won’t be around to participate. Days before the commission’s August hearing, he and two other commissioners were notified by the Polis administration that they hadn’t been reappointed to the commission following the expiration of their terms.

“It was done in a very disrespectful way,” said Schendler. “Several days before the meeting, so I’d already prepared, and then it was, ‘Thanks, we’re going a different direction.’”

In place of the outgoing commissioners, all of whom had been solidly in support of more aggressive climate regulation, Polis appointed three new members to the commission, two of whom had ties to the oil and gas industry: Randy Ahrens, the former mayor of Broomfield, and Gary Arnold, the business manager for Denver Pipefitters Local 208. A fourth commissioner whose term had expired, Charles Grobe, a former executive at Tri-State, was reappointed to the commission for another two years.

Perhaps more than anything else in the last two years, Polis’ unexpected shakeup of the AQCC convinced climate-action advocates that their differences with the governor were deep-seated and potentially irreconcilable.

“It’s pretty clear there is no hope of change at the (AQCC) right now,” said Jeremy Nichols, climate and energy program director at advocacy group WildEarth Guardians. “They’re going to do exactly what the governor wants them to do. There’s no longer a majority on that commission that is willing to push for more, and that speaks volumes to where the governor is truly at right now.”

Representatives for Polis denied interview requests.

“The governor believes the science is clear on the pace and scale of what is necessary to combat climate change, and will continue to advance a bold and comprehensive suite of policies, regulations, and incentives designed to protect the health and safety of Coloradans today and for generations to come,” Polis spokesperson Conor Cahill said in a statement. “The AQCC plays a role in this work, and we are excited about the diversity in background and professional experience that the recently appointed commissioners bring to the table.”

“The governor is a fan of Auden Schendler’s urgent drive to act on climate and hopes that he continues his climate advocacy,” Cahill added.

Schendler, however, says that the shakeup sent a clear message. Colorado climate activists had entered 2019 with powerful allies in both chambers of the state legislature and on the AQCC, but ultimately, the path to regulatory action ran through the governor, whose intentions were now clear.

“I think it was a signal to slow down, and I think it will slow down,” Schendler said. “The AQCC was pushing pretty hard to do as much as it could, and the consequence is that it got restructured in a way that made it less likely to achieve those emissions reductions.”

“I think it’s fair to say that the governor is a very hands-on governor in all things, including climate,” said Jones. “He has a vision for how he wants to get there, and he is not shy about articulating that.”

As tensions between advocates and the administration rose in the spring, Jones, who was appointed to the AQCC by Polis in February 2019, pointedly sided with the Democratic lawmakers and activists who argued that Colorado’s new climate laws had established a clear deadline for the commission to introduce a major set of greenhouse-gas regulations.

“I know we’ve discussed before how the administration believes that the work done to date makes us not have to meet a July 1 (deadline for) draft rulemaking,” Jones said during the commission’s May hearing. “I don’t know that any court would agree with that.”

Colorado may soon get the chance to find out. Shortly after the July 1 deadline passed, WildEarth Guardians filed suit in Denver District Court, seeking a ruling that would compel the Polis administration to take regulatory action that the group argues has been “unlawfully withheld.” Polis, the AQCC, CDPHE and the department’s Air Pollution Control Division are named as defendants in the suit.

“Defendants had a mandatory duty to notice a proposed rulemaking to create rules to implement measures allowing the state to cost-effectively meet its greenhouse gas emission reduction goals by July 1, 2020,” WildEarth Guardians’ complaint argues. “Defendants’ failure to meet this mandatory deadline is arbitrary, capricious, contrary to statute, and not in accordance with (state law).”

A second lawsuit followed weeks later, this one filed by the Environmental Defense Fund, the influential Washington, D.C.-based nonprofit. As an organization widely viewed as middle-of-the-road on energy issues — it’s come under fire from more progressive groups for its support for fracking — EDF’s decision to sue was yet another sign of the uncomfortable rift that has opened up between mainstream green groups and the Polis administration. The complaint was filed quietly on Aug. 5 — the final day of a 35-day judicial review period that followed the APCD’s failure to act by July 1 — and EDF itself has not publicized its lawsuit at all.

“We view the urgency of the climate crisis as a real imperative and a motivator for action,” said Pam Kiely, EDF’s senior director of regulatory strategy. “If this was a discussion that was going to be a discussion that was going to take place in the courts, we thought it was really important to be part of that conversation, and represent our members across the state of Colorado who have a strong interest in its resolution.”

Citing the pending litigation, APCD spokesperson Andrew Bare declined to comment directly on the claims made by the lawsuits “beyond saying we’re confident that our actions have been in accordance with state law.”

“We recognize that these disagreements are the product of passionate views, and climate change is certainly an issue that merits strong advocacy,” Bare said of the tensions over HB-1261’s implementation. “We share the sense of urgency expressed by many environmental groups. We’ve worked productively with many of these groups, and while this process hasn’t resolved all of our disagreements, we firmly believe that listening to informed criticism is a crucial part of our work.”

For its part, Polis’ office has dismissed the lawsuits as attempts to “justify a risky and expensive strategy such as a state-based cap and trade system.” But neither lawsuit makes such an argument explicitly, and plaintiffs say that that’s not their goal.

EDF has voiced support for such an approach, and several Colorado green groups released a 2017 “Climate Blueprint” that backed an economy-wide regulatory system like a carbon tax or cap-and-trade. (Polis himself made headlines in the final weeks of the 2018 governor’s race for expressing openness to a hypothetical carbon tax, but later walked his comments back.) But few stakeholders involved in the AQCC process have been wedded to such proposals, and most environmental advocates say they’d be happy with a suite of strong sector-specific policies, as long as they added up to cuts that met HB-1261’s targets.

“We have been focused on a set of enforceable regulations that are certain of hitting the goals, and we’ve been open to that taking a number of different forms,” said Stacy Tellinghuisen, a senior climate policy analyst with Boulder-based Western Resource Advocates. “I don’t think we’ve ever been set on cap-and-trade as the only solution to this.”

While the Polis administration has criticized the lawsuits as a distraction, WildEarth Guardians’ Nichols says that it was necessary to continue to put pressure on state officials to act. The AQCC’s slow-walking of HB-1261 regulations over the past year has sown doubt and distrust among many Colorado climate activists.

“Here we are almost two years after the bill has passed, and after a clear legal deadline has passed, and even still, they’re like, ‘We’re not planning on doing much of anything for another year and a half,’” Nichols said. “And who knows even whether that deadline might even slide.”

Among the biggest sources of exasperation for advocates since the passage of HB-1261 has been the state’s insistence on the completion of a policy “roadmap” outlining a path towards meeting the bill’s targets, including through additional regulation and legislation. A draft version of the roadmap was released by the Colorado Energy Office on Sept. 30; it will undergo a public-comment period and is expected to be finalized by the end of the year, more than 18 months after HB-1261 became law.

“Any one of us in the climate policy world could have developed this document in two months,” said one environmental advocate, who asked to remain anonymous in order to speak candidly.

Over and over again, advocates stress that it’s not a lack of good ideas that’s holding back climate action in Colorado. Experts have spent decades developing policy pathways that combine market incentives and regulatory standards to accelerate the clean-energy transition in major source sectors.

Fees on ride-hailing apps or vehicle registrations could help fund public transit and electrification efforts while clean-fuels mandates promote near-term emissions cuts. Incentives and training programs for HVAC contractors could help encourage the adoption of electric heat pumps, and the installation of natural-gas heating systems can be phased out through building codes. Transportation and land-use planning processes by state and local governments could be required to take carbon emissions in greater account. An exemption on APCD permitting fees for key climate pollutants like CO2 and methane could be eliminated, providing regulators with much-needed revenue and additional staff.

The draft roadmap released by the Polis administration is a microcosm of what has frustrated climate advocates about the state’s approach for much of the last two years. It entertains a wide range of various policy options while making few commitments to any concrete regulations.

“Further reducing greenhouse gas pollution across our economy to meet the state’s science-based goals will be no small task,” the roadmap says. “And while the state has already taken a number of historic steps, we have much work to do to protect the Colorado way of life for generations to come. This work will continue to be multi-faceted and iterative, and it will require the ongoing expertise and engagement of all Coloradans.”

In August, state officials also presented the AQCC with a spreadsheet that, for the first time, outlined detailed estimates for how the administration believes it can meet the goals set by HB-1261, which include a 26% cut by 2025 and a 50% cut by 2030. Under its projections, roughly half of the required cuts will come from continued progress in the electricity sector, while the rest will come from a variety of other sectors through a combination of collaborative efforts with the private sector and additional rulemakings by the AQCC in 2021 and beyond.

The spreadsheet represents the most specific and transparent information state officials have provided to date about their plans to meet HB-1261’s targets, but many of its estimates and assumptions haven’t satisfied the administration’s critics.

“There’s just not much detail there,” said Tellinghuisen. “I think it’s really hard to evaluate whether those policies really add up to achieving the goals. … You can count these emissions reductions, but we have no certainty that they are actually going to occur at this point. And (putting) some rules or statutes in place that require those reductions would make them real.”

As one of the AQCC’s most vocal proponents of aggressive climate action, Jones said she will continue to push the state toward its goals — and as an “eternal optimist,” she’s encouraged that everyone involved agrees that the targets must be met.

“We are making progress — the question is are we making enough,” Jones said. “As somebody who’s in the middle of it, I’m heartened by the fact that I don’t see anybody pulling back from the climate targets. There’s the perception that there’s a lot of ways to get there, and everybody has their favorite pathway, and it’s not necessarily the same pathway.”

With strong, proactive regulations appearing increasingly unlikely, some lawmakers and advocacy groups have begun to press the AQCC and administration officials to establish regulatory “backstops” that would kick in in the coming years if the state isn’t on track to meet its goals.

In a sense, such measures would be mandates by another name. But advocates continue to insist that the administration’s faith in market forces and technological innovation to drive emissions cuts is misplaced — especially in sectors where the market for cleaner technologies isn’t yet developed.

“We often look at the electricity sector as the shining star right now, where they’re on the right path,” Tellinghuisen said. “That’s because 15 years ago we passed a renewable energy standard in this state, and we’ve expanded it since then. And those regulations have driven the industry, and driven down prices, so that solar, wind and increasingly battery storage are cheaper than fossil fuels.”

“We haven’t seen that kind of technological revolution yet in many of these other sectors, and that revolution was driven in large part by regulation,” she added. “That’s what regulation can do in these other sectors as well.”

For the north Denver residents living on the fencelines of much of Colorado’s energy and transportation infrastructure, the true costs of more than a century of dependence on fossil fuels may never be fully added up. The area’s legacy of racial inequity and industrial pollution — not only from relatively well-known sources like the Suncor oil refinery but also the highways, truck depots, fuel terminals, asphalt and cement plants and other facilities on which the world’s energy system relies — casts a long shadow.

Earlier this year, tests revealed the presence of toxic substances known as “forever chemicals” — per- and polyfluoroalkyl substances, or PFAS — in Sand Creek near the Suncor refinery. A company spokesperson confirmed to CPR News that the source was likely a type of firefighting foam that had been previously used by the company. Few were surprised by the news — it was yet another in a long line of potential health and safety concerns for the surrounding community to worry about. Activists have sparred with area water utilities over what to do about it.

“The utilities were trying to fight us, saying that we should be going after the polluters,” said Ean Thomas Tafoya, an organizer with environmental advocacy group GreenLatinos. “And our whole argument is, ‘You should be joining us in going after the polluters, not (threatening) our health and safety because you don’t want to pay for it.’”

One of Tafoya’s early forays into environmental activism was an effort to get the city of Denver to install recycling bins in its parks — an initiative that, in retrospect, he said was more focused on personal behavioral changes than holding powerful polluters accountable. As time went on, he found himself fighting bigger battles against foes like Suncor and the Colorado Department of Transportation’s billion-dollar expansion of Interstate 70 through vulnerable neighborhoods on the city’s north side.

“I was really focused on personal choice — we’ve got to recycle more, we’ve got to compost more, we’ve got to ride our bikes more,” Tafoya said. “Then I started to recognize how much more of this has to do with government regulation and corporations, and allowing them to regulate themselves, and the massive amounts of pollution that are being put out on everybody.”

Following continued pressure from advocates and Democratic lawmakers — who in August sent a letter to Polis and the AQCC demanding a “robust engagement plan” to fulfill HB-1261’s mandate to protect disproportionately impacted communities — CDPHE officials have stepped up their efforts to center issues of racial equity in the implementation process. Among the administration’s top priorities, it says, is the development of a “clean trucking strategy” that will deliver substantial benefits to people in heavily industrial areas like north Denver.

As with many other areas of state climate policy, however, it remains unclear just how much this strategy will rely on enforceable regulation, rather than collaboration and voluntary commitments from the private sector. And distrust in many disproportionately impacted communities runs deep. John Putnam, the CDPHE’s director of environmental programs and one of the Polis administration’s top climate officials, was previously a managing partner at Kaplan Kirsch & Rockwell, where he helped represent CDOT in a lawsuit against I-70 expansion brought by Tafoya and other community activists. Tafoya said he has asked to be involved in the administration’s “equitable climate action” process, but hasn’t heard back.

“I expected more from Polis,” Tafoya said. “I don’t think he’s been a progressive champion in any sort of way.”

Polis closed his 2020 State of the State address with a hopeful vision of Colorado’s “renewable energy future,” urging state legislators to use their limited time in office to confront daunting challenges like climate change.

“What do we want our legacy to be?” Polis asked lawmakers. “When our great-grandchildren open their history books, what do we want them to read about us? Will it say that we were too scared to tackle the big issues? That we were too timid to act on evidence right under our noses?”

“We have the power to do the right thing,” he added. “All we need is the courage to use it.”

As Polis nears the halfway point of his term as governor, that’s exactly what advocates for climate action and environmental justice are waiting to see.

“He needs to have the courage to help the people who need it the most,” Tafoya said. “What I want for him to do is to lean in and bring us to the table. He can still get it right. But time is growing shorter and shorter and shorter.”