Smog shrouds Denver’s skyline behind Interstate 25 traffic on Aug. 18, 2021. (Chase Woodruff/Colorado Newsline)
A month after state officials pulled their support for a proposed rule aimed at reducing commuter car travel, Colorado’s Air Quality Control Commission on Thursday made the proposal’s defeat official.
In an 8-1 vote, commissioners approved a motion to dismiss a rulemaking proceeding for the Employee Traffic Reduction Program, which had been a key recommendation in Gov. Jared Polis’ “roadmap” for cutting greenhouse gas emissions in the transportation sector but was dropped following pushback from business groups.
“I’ll support — reluctantly support — the motion to dismiss,“ AQCC chair Anthony Gerber, a pulmonologist at National Jewish Health, said prior to Thursday’s vote. “It was a heavy lift, and it ran into stormier than anticipated waters, and the ship sunk. I’m not happy about it.”
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Commissioner Elise Jones, a former Boulder County commissioner and director of the Southwest Energy Efficiency Project, cast the only vote against the motion, which she said was symbolic, “to register my frustration and disappointment.”
Modeled after similar initiatives launched in dozens of other U.S. states and cities, the ETRP program would have required businesses with more than 100 employees at one location in the Denver metro area to develop and implement plans to reduce the number of employees commuting in single-occupant vehicles. Options for ETRP compliance would have ranged from telecommuting and flexible scheduling to providing public-transit passes or employee shuttles.
But following intense opposition from conservatives and business groups, including the Denver Metro Chamber of Commerce, the state’s Air Pollution Control Division first dramatically narrowed the scope of the proposed rule, then moved to drop it entirely. The APCD “instead will focus on opportunities presented through a voluntary program,” it said in its July 21 motion to dismiss the rule.
“We haven’t taken a tool off the table … it’s just going to be through a voluntary approach, a collaborative approach,” Clay Clarke, supervisor of the APCD’s Climate Change Unit, told commissioners. “We’re very optimistic that we can work with our business partners to still get engagement there.”
Separately from the ETRP proceeding, the AQCC approved a slight tightening of vehicle emissions-testing standards and other minor rule changes at its monthly hearing on Wednesday and Thursday. But Jones, who has frequently called for the panel to be more aggressive on greenhouse-gas regulations, again voiced frustration with the pace of state climate action, especially during a summer in which ozone pollution has worsened along the Front Range and impacts like the closure of Interstate 70 in Glenwood Canyon have continued to accelerate.
“We are hearing from a lot of people who are very concerned about where we are. … People are asking us to do more,” Jones said Wednesday. “But we’re doing less, not more.”
“We at the division, and the state as a whole, share the general urgency associated with all these issues,” responded APCD director Garry Kaufman. “At the same time, we want to bring forth proposals that have been fully vetted, that have a fair and complete stakeholder processes associated with them.”
Spotlight on AQCC authority
The withdrawal of the ETRP rule once again puts a spotlight on tensions between the Polis administration and environmental groups on state climate policy — and on the role and powers of the AQCC, a rulemaking body made up of nine part-time, volunteer commissioners appointed by the governor.
State law authorizes the AQCC as an independent regulatory body, tasking the commission with enacting rules to comply with the federal Clean Air Act, to reduce greenhouse gas emissions as targeted by a 2019 climate law, and more. The regulations the commission enacts, however, are implemented and enforced by full-time, professional staff at the APCD, a division of the Colorado Department of Public Health and Environment.
The AQCC’s authority to independently set policy has proved elusive under Polis, a Democrat. In November 2020, commissioners voted to approve a proposal backed by environmental groups to speed up the closure of three Colorado coal plants but reversed their decision a month later under pressure from the APCD and other administration officials.
I will vote for this, but I’m very disappointed that I have to.
– AQCC Commissioner Martha Rudolph
The APCD’s motion to dismiss the ETRP proposal, which came after the AQCC had formally initiated the rulemaking process, again raised questions about the relationship between the two entities. It would have been unprecedented, commissioners and staff said at Thursday’s hearing, for the commission to reject the motion and move forward with a rule the division didn’t support — though commissioners were advised that they could do so if they chose.
Such a decision would be “untread ground for me,” said Tom Roan, an assistant attorney general who serves as the commission’s counsel. “There are a lot of questions that we don’t know the answer to, that we’d have to figure out if that’s the direction the commission wanted to go,” he added.
“I’m just very challenged by understanding how this was supposed to work, and if this is going to happen again in the future, if there’s pushback against a rule,” Jones said. “I don’t feel like the commission has been fully briefed on our authorities in this situation.”
‘We can’t afford inaction’
Commissioners were nearly unanimous in voicing their unhappiness with Thursday’s vote to dismiss the ETRP rule, but most said that they believed it was the only option available to them.
“I will vote for this, but I’m very disappointed that I have to,” said commissioner Martha Rudolph, an environmental lawyer.
“I will vote for the motion to dismiss, because I don’t feel like I have another choice,” said commissioner Jana Milford, a professor of mechanical engineering at the University of Colorado Boulder.
“I feel like withdrawing the proposal for regulation puts the impetus on the executive branch — and I know that maybe this needs to start higher than the division — to actually put more resources into this effort,” Milford added.
Pointing to the ETRP rule’s inclusion in the governor’s greenhouse-gas roadmap, Jones urged APCD staff to closely monitor the emissions reductions achieved through the revised voluntary program, and provide the commission with other proposals that might help fill any gaps.
“I want to reiterate that we really can’t do this again — queue up a rulemaking, and then pull it away,” she said. “Because we have the statutory direction, where we need to be moving forward both on climate and ozone. And we can’t afford inaction.”
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