Going into the December 13-16  Air Quality Control Commission (AQCC) hearing, we already knew the proposed State Implementation Plan (SIP) would not get us to attainment of the EPA health standard. The SIP itself said it would fail to meet the air quality standards. For 15 years SIP after SIP failed to attain the health standards and our state continued to have unhealthy levels of ozone. To fix the problem, the rules and plans for this SIP would have needed to be much stronger and put into place sooner. The SIP also went into hearing with four chapters having been withdrawn at the last minute due to errors in calculation of oil and gas emissions. 350 Colorado wanted the Commission to reject the entire failed and incomplete package, but instead they passed it. The only vote against it was from Commissioner Elise Jones.

Why did the AQCC decide to pass the entire SIP  presented to them by the RAQC and APCD? Perhaps due to the impossibility of coming up with a new plan at this late date that would actually be able to achieve attainment by 2024, the deadline to achieve attainment of the stricter standard of 70 parts per billion (ppb) of ozone. (They have until 2026 to achieve attainment of 75 ppb). The RAQC presented their case to the AQCC as follows: if you reject the SIP for not achieving the 70 parts per billion standard, then we will be forced to spend time on redoing that part of the plan to submit to the EPA, an exercise in futility, because any measures we require now would have to go through a long rulemaking process and wouldn’t achieve results by 2024 anyway, i.e. it’s impossible to achieve the goal by 2024. The RAQC said it was better to pass the current, failed plan and send it off to the EPA, because that would result in moving the deadline to achieve 70 ppb to 2026, the same as the deadline to achieve 75 ppb. They said if the SIP was passed by the AQCC, they could just get on with the job of making that new plan. CPR’s Sam Brasch has an excellent article further explaining the convoluted process and reasoning.

The hearing in context

This whole debacle was a massive failure years in the making. Since 2008, Colorado has never been able to achieve attainment of the EPA health standards for ozone in the Denver Metro North Front Range area. One of the problems is a disconnect between the ultimate decision-makers (AQCC) and the rule-writers, as well as a disempowerment of the AQCC to have any control over the process. The AQCC only votes to pass/fail items that come before it. Typically, rules are written over a period of many months by the Air Pollution Control Division (APCD) and/or the Regional Air Quality Council (RAQC)—the AQCC does not actually develop regulations or the State Implementation Plans themselves. When pressed by environmental groups to exert some control, they often say in their hearings that they don’t have any legal authority to ‘direct’ the people who DO write the rules. (Definitely a messed up system, possibly ripe for future legislation…?) But is this a disempowerment of their own making? Could they exert control simply by NOT voting to approve rules they don’t consider strong enough, and making known what changes they would like to see? In that way, even though they wouldn’t be ‘directing’ the rule-writers, the rule-writers will come to know that if expectations are not met, the Commission will vote to fail the rules. That seems so simple, yet voting to fail rules could result in a delay of many months: new rules take time to write. It would be ideal if the Commission could hear from parties and the public along the way and communicate expectations to the rule-writers as they are working, rather than only after rules are created.

A bright spot in the smoggy gloom

On December 15, in a rare move, the Commission broke with recent tradition on the topic of their authority. This time, led by Commissioner Elise Jones, who would not take no for an answer, the Commission voted to add several sections to the Statement of Basis and Purpose of the SIP. The added sections tell the Regional Air Quality Council (RAQC) and Air Pollution Control Division (APCD)—the people who wrote the failed SIP and the rules that go along with it—what the Commission ‘expects’. (They actually had to change the word ‘directs’ to ‘expects’ when some Commissioners objected that they are not legally allowed to ‘direct.’) The new section included items asked for by environmental groups, including 350 Colorado. It is incomprehensible that this small token gesture is so unusual and it is tragic that the gesture is a cause for celebration in this failed process. Nevertheless, we appreciate that step in the right direction and urge the Commission to continue MUCH FURTHER down this path toward strong leadership in protecting Coloradans.

Our role

Early in the process 350 Colorado sent an official comment to the RAQC about the proposed SIP, and many of our members signed onto a letter about ozone that went to both the RAQC and the AQCC. Once the rulemaking was announced, 350 Colorado became a ‘party’ to the rulemaking so we could have more input. We submitted a prehearing statement, a rebuttal statement, and also mobilized policy committee members for several months to give comment about the SIP at AQCC monthly meetings and to turn out for public comment at the rulemaking hearing itself.

In the AQCC hearing, 350 CO gave a presentation, pushing for stronger measures for oil and gas. We also pushed for measures that will maximize co-benefits to disproportionately impacted communities and we supported other groups’ ask for an equity analysis to be added. We included data to correct misguided public opinion that the Colorado economy will melt down if oil and gas is forced through stronger regulations to stop polluting our state. See our slides and speaker notes here. Did our presentation have an effect? It’s hard to know for sure, but it does seem that our presentation along with other groups’ efforts moved the needle. The insertion of ‘expectations’ in the Statement of Basis and Purpose (described above) included some of our asks and clearly wouldn’t have happened without strong presentations from environmental groups. Also, Commissioner Jones questioned the Regional Air Quality Council (RAQC) —the ones who actually write the SIP—specifically about oil and gas measures and got them to say on the record they will be looking at oil and gas measures, even though they haven’t done so in the past. Was she inspired to do that partially because of environmental groups’ comments? We may never know.

What’s next?

We always knew that whether they passed or failed this SIP, there would be a “round 2.” The RAQC now has limited time to come up with a plan to improve our air quality that the EPA will approve. This is where we come in. We must keep the pressure on the RAQC during the next several months while they are starting the work of writing plans to get us to our clean air goals. We need to continue to push them to use the strongest measures possible to improve our ozone levels, while holding oil and gas accountable for their share, and improving pollution in disproportionately impacted communities.

In the new year, we will want to send a letter to the Commission, thanking them for the step they took in the right direction, and expressing our disappointment at how they fell short. We will also want to write to the RAQC to push for our main asks: stronger oil and gas measures, better modeling that includes climate change, and assessing measures for how well they reduce co-pollutants in disproportionately impacted communities. Your voice as a member of the public makes a difference: stay tuned for how you can get involved! If you would like to have a voice in crafting 350 Colorado’s letters, join the Climate Policy and Regulatory Action Committee—email Heidi@350Colorado to get added to the committee list, or sign up here

In the meantime, since oil and gas is the #1 contributor to ozone-causing emissions, please sign this support letter for the phaseout of oil and gas new permits by 2030.

– by Heidi Leathwood