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.
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 Air Quality Control Commission’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,” said AQCC Commissioner Elise Jones. “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.”
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,” said Air Pollution Control Division director Garry Kaufman. “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.
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.”
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.
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,” Auden 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.