Colorado’s air pollution regulators would have to scrutinize permits for pollution sources far more strictly and assess cumulative impacts on the state’s growing ozone problem before approving new oil and gas or other industrial activity, under a proposed bill backed by clean air advocates.
Democratic legislators plan to introduce a bill within days that includes extremely detailed marching orders for the state health department to overhaul air pollution permitting and carry out the promises of transformative oil and gas legislation from 2019.
Advocates and many local elected officials on the Front Range argue every new well boosts metro ozone levels that already violate EPA rules, and they say the Air Pollution Control Division and Colorado Oil and Gas Conservation Commission must reject new permits if they will add even small amounts to the problem.
Colorado regulators are not following the mandates of the federal Clean Air Act to evaluate applications to emit pollutants by whether they will add to EPA-controlled toxins like ozone, said Rebecca Curry, Colorado policy counsel for Earthjustice, which has been involved in talks on writing the bill drafts. State officials keep approving new pollution permits, and the nine-county Northern Front Range nonattainment area is periodically downgraded for ozone violations, she said.
“We just keep filling the bathtub up when it’s already full,” Curry said.
Reps. Jennifer Bacon, of Denver, and Jenny Willford, of Northglenn, both Democrats, have said they will sponsor the air permitting reforms.
“The problem is we’ve gone as far as we can get without dying,” Bacon said. “We have no more room in our air. We just don’t.”
Bacon said some groups are disproportionately impacted by environmental concerns like air quality.
“It is an equal justice issue now, especially for health care,” she said.
“What excites me about coming to the space is bringing the voices of my neighbors to the conversation,” said Bacon, who represents northeast Denver. “So we may not know all these acronyms, like the AQCC, but we know that it hurts to breathe. We know that our kids have asthma attacks and we know we‘ve got to work outside. And so I’m looking forward to bringing that perspective on the issue.”
The Air Quality Control Commission is a governor-appointed board that must approve regulations proposed by the Air Pollution Control Division staff.
Colorado’s oil and gas industry representatives said they have not been shown a full draft of the proposal, but they know enough to be sure to oppose much of it.
“As described, the bill would functionally end new permitting for natural gas and oil development in Colorado’s highest-producing basin by 2024, among numerous additional impractical and infeasible provisions,” said Lynn Granger, Midwest/Mountain West director of the American Petroleum Institute.
“The proposal should be a nonstarter for Coloradans who have spent the past year suffering from high energy prices at home and at the pump,” Granger said. “This measure could exacerbate that suffering by effectively shutting down production in America’s fifth-largest producing state during a time of global unrest and ongoing supply/demand imbalance, and we are hopeful that lawmakers of all political stripes will agree.”
The Colorado Oil and Gas Association said the industry has participated in multiple pieces of legislation and agency rulemakings to cut emissions from drilling and gathering operations. The new restrictions don’t account for much of Colorado’s ozone problem made worse by pollution from out-of-state sources, including industries in China and on the West Coast, and recent wildfires, association President Dan Haley said.
“Industry cut its emissions of volatile organic compounds (which contribute to ozone) in the nonattainment area by nearly 60%, dropping from 279.7 tons per day in 2011 to 119 tons per day in 2020,” Haley said. “Our industry has come to the table time and again to find workable solutions, and emissions are going down.”
Gov. Jared Polis, whose office in the past has resisted some legislative attempts to dictate the executive functions of the Air Pollution Control Division within the state health department, said through a spokesperson that the administration is involved in the talks over a potential bill.
“The agencies and governor’s office staff are currently reviewing the draft legislation that was just recently provided to them,” Conor Cahill said in an email.
Advocates for a tough bill, a similar version of which was dropped in previous sessions after the oil and gas industry rebelled, said Colorado’s ongoing ozone violations and 2021 whistleblower allegations of lax permitting show the need for new action.
While it’s true scientists attribute some of the Front Range ozone problems to outside pollution, a significant portion of ozone still comes from oil and gas activity and growth of fossil fuel-powered vehicles in the metro area, supporters of the draft legislation say. Meanwhile, the oil and gas commission has yet to significantly change how it approves new wells despite a 2019 law requiring them to take the overall health impacts into account before issuing new permits, they said.
“Fundamentally the problem is the legislature gave these agencies clear direction and clear authority to implement a better approach to managing air pollution, and they’re just not doing it,” said Jacob Smith, executive director of Colorado Communities for Climate Action, a coalition of environmental groups and local elected officials from the Front Range. “The result of which is we’re all still breathing polluted air, and we shouldn’t be.”
Colorado’s Front Range counties are now in “severe” violation of EPA limits on ozone pollution in the summer, when nitrogen oxide, volatile organic compounds and wildfire smoke are baked by bright sunlight and can damage lungs and worsen heart conditions. After whistleblowers alleged conflicts of interest in the state air pollution division and continual approval of permits whose modeling showed they would contribute to violations, the regional EPA demanded changes in state permit operations.
Drafts of the legislation would further tighten permitting by:
- Directing the Air Pollution Control Division to revise or deny permits for new activity, including drilling, if modeling of the predicted emissions shows it would contribute to violating EPA ambient air standards on ozone and other pollutants.
- Requiring the APCD to coordinate with the oil and gas commission to assess and avoid adverse cumulative impacts from a new permit application. The oil and gas commission could not issue a permit until completing the cumulative impacts analysis, and after the APCD has issued a pollution permit.
- Requiring regulation of “nonroad engines” like diesel generators at drilling sites, and requires consolidation of permits when companies have tried to stay under emissions thresholds by splitting up different sources on one site into separate limits.
- No longer exempting emissions created during startup, shutdown or malfunction periods on a site, a frequent complaint about the Suncor Energy refinery in Commerce City.
- Strengthening investigations of alleged violations, speeds up deadlines, and makes it easier for the public or third-party groups to sue an alleged violator and receive attorney fees if the APCD has declined seeking enforcement.
The oil and gas commission has still not defined what “cumulative impact” even means, four years after legislation directed the agency to take such impacts into account, said Andrew Forkes-Gudmundson of the Earthworks advocacy group.
“The time to act was years ago,” Forkes-Gudmundson said. “The next best time to act is right now.”
Government, Bacon said, “is supposed to be there when business and industry won’t be.”