This article series by reporter Chase Woodruff first appeared on Colorado Newsline. The current installment is from his article, “Climate Inaction: How Colorado’s landmark emissions law went up in smoke,” posted on October 6, 2020.
Under the broad authority granted to Colorado’s Air Quality Control Commission 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 Air Pollution Control Division (APCD) 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,” Elise 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.”
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 will 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.
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,” said Ean Thomas Tafoya, an organizer with environmental advocacy group GreenLatinos.
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.”
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…”