Smokescreen: Who killed ETRP, Colorado’s traffic-reducing climate rule?
A trip-reduction program was a top priority of Gov. Jared Polis’ administration. Then, in 48 hours, it all fell apart.
Southbound traffic on Interstate 25 in Denver on July 29, 2021. (Chase Woodruff/Colorado Newsline)
Southbound traffic on Interstate 25 in Denver on July 29, 2021. (Chase Woodruff/Colorado Newsline)
None of the members of Colorado’s Air Quality Control Commission were happy with the decision that lay before them at their August 2021 hearing. Many were confused about what exactly it meant. But everyone seemed to agree on one thing: Rarely, if ever, had something like it happened before.
“This is an extraordinary circumstance,” said commissioner Elise Jones.
“Tom, I don’t know if you’ve ever seen anything like this in your long history at the commission,” said AQCC administrator Jeremy Neustifter during the panel’s meeting on Aug. 19. “I certainly haven’t.”
“It is an unusual situation,” replied Tom Roan, an assistant attorney general and the commission’s counsel.
The situation in question followed the abrupt decision by the Air Pollution Control Division — the state agency that works with the governor-appointed, volunteer members of the AQCC to regulate Colorado’s air quality — to pull its support for a transportation-focused greenhouse gas rule after the commission had already formally initiated a rulemaking process. It was a strange development that put a spotlight on whether the AQCC was a truly independent regulatory authority: Could it proceed with a rule that the APCD didn’t support? In the end, commissioners voted 8-1 not to find out, and accepted the division’s motion to withdraw the rule.
And so it came to pass that Colorado Gov. Jared Polis’ administration abandoned one of its own top climate-policy priorities, the Employee Traffic Reduction Program, effectively scrapping a year of planning by state staff and sending long-running regional efforts to reduce car travel back to the drawing board.
For months, the APCD’s withdrawal of the ETRP program has been characterized chiefly by two things: a series of unusual decisions and a steadfast refusal by state officials to explain them.
It’s part of what former employees at the APCD and its parent agency, the Colorado Department of Public Health and Environment, say is a culture of deference to regulated industries and resistance to public scrutiny of its operations and decision-making.
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Officials with the APCD, the health department and Polis’ office declined repeated requests, made over a period of months, to make decision-makers available for an interview for this story.
Open-records requests submitted to the governor’s office and CDPHE have returned pages and pages of communications about ETRP that have been heavily redacted, with records custodians citing the “deliberative process” exemption under the Colorado Open Records Act. A larger batch of internal department communications relating to ETRP, for which Newsline submitted a payment of over $1,000 on Aug. 16, have been withheld for more than a month.
“It isn’t typical,” APCD spokesperson Andrew Bare wrote in an emailed response to a question about the unusual nature of ETRP’s sudden withdrawal. “But we are moving through a wide breadth of policies through the AQCC right now. We expect that sometimes we will need to pivot and adjust our plan to maximize our impact in the near term. By initiating the rulemaking process, the AQCC helped us to gather additional feedback which we used to inform the evolution of the program.”
Big business opposition
Modeled after similar “trip reduction” initiatives launched in dozens of other U.S. states and cities, the ETRP program would have required businesses with more than 100 workers at one location in the Denver metro area to designate a “transportation coordinator” and implement plans to reduce the number of employees commuting in single-occupant vehicles.
By reducing car commutes, analysts said, ETRP would boost Colorado’s efforts to cut hazardous ozone pollution, as well as fight climate change. Over the last several years, the transportation sector has overtaken electricity to become Colorado’s largest source of climate-warming greenhouse gas emissions.
Planning for a Colorado ETRP rule began in 2020 at the Regional Air Quality Council, an intergovernmental body that coordinates air-quality planning across the Denver metro area. The RAQC’s efforts caught the eye of state climate officials, who included ETRP as a top priority in the Polis administration’s Greenhouse Gas Pollution Reduction Roadmap, a list of policies and initiatives that outlined a path towards meeting the 2025 and 2030 emissions goals set by House Bill 19-1261, Colorado Democrats’ landmark 2019 climate law.
“The state determined around March that the framework we had been working on, they would advance,” said Mike Silverstein, the RAQC’s executive director. “They were looking at (greenhouse gases), we were looking at ozone. It just kind of melded into one, where we started working on these things together.”
Options for ETRP compliance would have ranged from telecommuting and flexible scheduling to providing public-transit passes or employee shuttles, with employers’ efforts evaluated through a “soft enforcement” approach based on self-administered surveys.
But ETRP’s development soon ran into intense opposition from business groups and conservatives, many of whom spread misinformation and conspiracy theories about the proposed rule. One prominent Colorado Republican activist falsely claimed that the program would “control when you can and cannot drive to work,” while another blasted it as “social engineering” on behalf of a “globalist” agenda.
A long list of business lobbying groups filed to participate directly in the ETRP rulemaking, including the Colorado Chamber of Commerce, the Colorado Oil and Gas Association, the Colorado Petroleum Association and the Colorado Automobile Dealers Association. The latter two groups are also members of the “Freedom to Drive Coalition,” an organization that helped lead opposition to ETRP, which it called an “unjustified infringement on individual liberty.”
State officials quickly backed off plans for a statewide program, and instead proposed one that would apply only to a nine-county area known as the Denver Metro/North Front Range non-attainment area, which has been out of compliance with federal air-quality standards for decades. Then, in mid-July, with just a month remaining before the AQCC’s final vote on the ETRP rule, state officials announced that they would dramatically narrow the scope of their proposal in response to “concerns” from the business community.
“Recognizing these concerns, the Department will revise its ETRP proposal to first focus on data gathering components to establish a strong baseline for future policy paired with setting a strong foundation through a voluntary trip reduction approach,” APCD officials wrote to “stakeholders” in an email on July 19.
It was unusual enough for the APCD to propose drastic revisions to a proposed rule months after the AQCC, at the division’s recommendation, had initiated a rulemaking. But what happened next, in the context of the measured pace and careful choreography that typically characterizes Colorado environmental policymaking, was downright bizarre: Just two days later, on July 21, the division quietly filed a motion to withdraw the program completely.
“After extensive outreach and engagement with a diverse range of stakeholders, the Division now withdraws its support and proposals for a formal ETRP rule and instead will focus on opportunities presented through a voluntary program,” the APCD’s motion read. The agency didn’t publicly announce its decision; the news, instead, reached the media through a statement issued by the Denver Metro Chamber of Commerce.
For months, state officials have declined repeated interview requests regarding this unusual sequence of events and have consistently failed to provide a clear accounting of their decision-making process through written responses. Asked in July what had changed in the 48 hours between ETRP’s revision and its full withdrawal, an APCD spokesperson issued a statement that simply rehashed its previous comments.
Asked again for a clear explanation prior to the publication of this story, Bare wrote in a Sept. 20 email that the motion to withdraw the rule was filed “after we determined that we don’t need to run the voluntary version of the program through the commission.”
“We enter into the stakeholder process with a willingness to modify the program if good ideas or proposals are raised,” Bare added. “We were responding to significant concerns from the business community and other stakeholders during a pandemic. The process for considering stakeholder feedback is extensive and designed to improve our ideas and proposals.”
But advocates for stronger state climate policy were deeply disappointed by the withdrawal, which represented a retreat from an emissions-cutting approach that many environmental groups considered unsatisfactory to begin with. Advocates say that the Polis administration erred on ETRP from the start, from making unrealistically inflated assumptions about its costs in a formal economic impact analysis to its backpedaling on a statewide program. They also say the APCD didn’t do enough to counter the misinformation spread by business groups about what the rule would entail.
“(Opponents) sensed blood in the water pretty quickly,” said one Colorado environmental advocate and ETRP supporter, who requested anonymity to speak candidly about the rulemaking process. “They realized that CDPHE was skittish about it, because CDPHE pretty quickly was already pulling back on some of it. … I think it was mishandled from the beginning.”
Policymaking shielded from public view
The strange and largely unexplained circumstances surrounding ETRP’s defeat put a spotlight on the Polis administration’s decision-making on climate issues, and they appear at odds with the governor’s own statements stressing the importance of transparency and accountability in enacting climate policies.
Earlier this year, in a rare interview on climate policy granted to the conservative editorial board of the Gazette, the media outlet owned by Colorado billionaire Phil Anschutz, Polis blasted an effort by Democratic lawmakers to give more climate policymaking authority to the Air Quality Control Commission, which he decried as an “unelected board” and a “back-door committee.”
As illustrated by the ETRP withdrawal, however, the Polis administration’s preferred approach involves a series of deeply opaque processes within the executive branch, rather than in the relatively transparent setting of state rulemaking boards and commissions. The AQCC’s meetings and procedures are subject to sunshine laws and other strict record-keeping and disclosure requirements. By contrast, deliberations within the governor’s office or the APCD — including communications with advocacy and lobbying groups and other special interests — are far easier to shield from public view.
That’s evident in a series of internal communications provided to Newsline by the governor’s office and CDPHE as part of open-records requests made in August. The hundreds of pages of emails and other documents were made available only in heavily redacted form, shielding conversations between top state officials regarding ETRP in the days leading up to its withdrawal.
A 1998 Colorado Supreme Court decision gave state agencies broad authority to exempt records from public disclosure by citing a “deliberative process” privilege. Judge Alex Martinez ruled that the exemption covers “recommendations, advisory opinions, draft documents, proposals, suggestions and other subjective documents that reflect the personal opinions of the writer rather than the policy of the agency.”
A larger trove of documents requested by Newsline continue to be withheld by CDPHE as part of a “privilege review,” with the department’s records unit repeatedly ignoring requests to provide a timeline for the full release of the records. Partial releases of the requested records were made to Newsline on Sept. 13 and 17. Under the Colorado Open Records Act, requested records are typically required to be made available within three working days, with an additional seven-day extension allowed in “extenuating circumstances.”
Jeff Roberts of the Colorado Freedom of Information Coalition said that while delays may violate “the letter of CORA,” there’s little recourse available to the media or other members of the public, especially with the impacts of the COVID-19 pandemic straining CDPHE’s resources.
A CORA advisory document issued by Colorado’s attorney general in 2001 states that, “If an agency does not comply with these deadlines, you can go to court to enforce your rights.” But it also advises that in cases in which “you do not get to see the records as soon as you should … Usually, the best approach is to be patient.”
“It’s the type of thing that people don’t really challenge legally, because by the time would get it into court, you might have the records,” Roberts said. “Is that technically a denial, because they’re dragging their feet? I’ve not seen a challenge like that.”
‘A decision of the administration’
The records Newsline has obtained to date, however, do point to involvement from the highest levels of state government in the last-minute decision by the APCD to withdraw its support for the ETRP rule.
Jonathan Asher, a senior policy advisor for the governor, was scheduled to “discuss … the ETRP issue” in a call with CDPHE environmental programs director Shaun McGrath on July 15, an email shows. Asher was also scheduled to meet with several CDPHE officials, including department director Jill Hunsaker Ryan, on July 20. The surrounding context of both communications are almost entirely redacted in the copies of the records provided by the governor’s office.
“Shaun requested that discussion to address the evolution of the program, and how we can ensure its effectiveness as one part of our overarching strategies to reduce air pollution and combat climate change,” Bare wrote in an email.
During Polis’ time in office, environmental groups have grown increasingly frustrated by the governor’s climate agenda, which they say is too reliant on voluntary efforts from the private sector. Alongside President Joe Biden at a climate event at the National Renewable Energy Laboratory in Golden last week, Polis again delivered an oft-repeated line focusing on the “market-driven transition” to clean energy. Two environmental groups, WildEarth Guardians and the Environmental Defense Fund, have sued his administration over its failure to propose comprehensive greenhouse-gas regulations.
The governor’s critics see his fingerprints all over what Jeremy Nichols, WildEarth Guardians’ climate and energy program director, called a “total knee-jerk” decision to drop ETRP.
“He views himself as a pro-business guy, and some whiny businesspeople got to him, and he jumped into action,” said Nichols. “Completely uninformed, completely blind to what was going on, what was behind all this.”
In an emailed response to questions about the governor’s involvement in the ETRP decision, Polis spokesperson Conor Cahill wrote only that, “Gov. Polis and our team coordinates with agencies to ensure the direction of policy within his administration is aligned with directives.”
Polis himself twice refused to answer direct questions from Newsline about ETRP’s withdrawal at a Sept. 1 event on transportation and climate policy, instead replying with non sequiturs about the need for federal investment in public transit, electric vehicles and more. He similarly changed the subject when Colorado Public Radio raised the issue during an interview on Aug. 20.
Comments from several officials close to the ETRP saga also hint at high-level involvement in the decision.
“I feel particularly bad for staff and stakeholders who have spent hundreds working on this rule, only to have it go away,” AQCC commissioner Elise Jones said ahead of the commission’s vote to drop the proposal on Aug. 19. “How do we make sure we are never in this position again?”
“I’m thinking that may be more a rhetorical question,” replied commissioner Curtis Rueter. “I don’t know that there’s anyone here who’s in a position to answer that.”
“It probably is rhetorical,” said Jones. “And maybe a plea to the powers above to not allow this situation to occur again.”
“It was a decision of the administration,” said the RAQC’s Silverstein. “Not necessarily the staff of the Air Pollution Control Division, but the administration as a whole. There was such an opposition forming … they determined that they didn’t want to advance a rule with that kind of opposition from the people who were going to have to comply with the program.”
The APCD has publicly expressed confidence that a voluntary version of ETRP “can achieve our objectives.” But such a position is seemingly at odds with the facts of ETRP’s development: Voluntary trip-reduction programs have long been offered to Denver-area employers through the RAQC and other entities, and part of the impetus behind ETRP was a consensus among air-quality planners that only a mandatory program could make a difference.
“The organizers of the voluntary programs began (to say), ‘We’ve been doing this for a long time, and we believe we’re sort of maxed out on the voluntary approaches here,’” said Silverstein. “It’s hard to get large employers to open their doors to us. … There was a frustration, I think, of the folks in the business that they weren’t getting full uptake of their initiatives.”
They didn't want to advance a rule with that kind of opposition from the people who were going to have to comply with the program.
– Regional Air Quality Council executive director Mike Silverstein
Few supporters expected ETRP alone to achieve deep emissions cuts in Colorado’s transportation sector; an initial APCD analysis projected that by 2025, it could reduce emissions by about 750,000 tons of carbon-dioxide equivalent per year, only a fraction of the estimated 27.4 million tons emitted sector-wide in 2019.
But to environmental advocates, the rule’s sudden withdrawal raises the question: If the Polis administration can’t take the “easy and obvious” steps to cut emissions, how will it follow through on bigger, more difficult proposals, like a plan to shift billions in state and local funding to more climate-friendly transportation projects?
“EDF continues to be deeply disappointed at the division for not stepping up to deliver the regulations necessary to cut climate pollution to the levels required, the latest example of which is backing off (ETRP),” said Katie Schneer, an advocate with EDF, in testimony before the AQCC in August. “While this type of program would not have produced nearly the level of transportation pollution cuts needed, it raises a critical question: How will this commission not only make up for the emissions reductions lost, but also continuously course-correct if any other measure falls short?”
For groups that were already distrustful of Polis’ approach to climate policy, ETRP’s defeat has dealt yet another blow to his administration’s credibility. The state continues to tout itself as a “national leader” on clean energy, and to champion the emissions-cutting strategies outlined in its “roadmap.” But within nine months of that roadmap’s release, one of its top recommendations has been scrapped, leaving Colorado without a policy already enacted by at least 27 other state and local governments across the country.
“It’d be interesting to hear if there are any regrets now,” said Nichols. “Because it was horrible the way it went down. A total cluster.”
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