This article series by reporter Chase Woodruff first appeared on Colorado Newsline. The current installment is from his article, “Climate Inaction: Lawsuits, roadmaps and Colorado’s uncertain clean-energy future”, posted on October 7, 2020.
As tensions between advocates and the administration rose in the spring, Elise 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, DC-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 August 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.”
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