Energy, Environment, National

From fracking bans to red tape: Environmental left makes post-election shift

After a disastrous election season for anti-fossil fuel groups, how do they keep their political agenda alive? Some important clues emerged this week during an obscure regulatory hearing over ozone standards in Colorado.

The state’s Air Quality Control Commission (AQCC) met Thursday to review new ozone regulations for a range of sources, including the oil and natural gas sector. The regulations are focused on the Denver metropolitan area, which has dramatically cleaned up its air quality since the days of the infamous Brown Cloud of the 1970s.

Even so, the U.S. Environmental Protection Agency has tightened the federal ozone standard several times since then, most recently in October 2015. The new standard of 70 parts per billion (ppb) was opposed by state and local officials across the country, business groups and organized labor as too strict. The EPA’s own modeling even showed the Denver metro area has almost no chance of meeting the stringent new 70 ppb standard.

Colorado Gov. John Hickenlooper (D) has called for the new ozone standard to be suspended, leaving in place the 2008 benchmark of 75 ppb. Under President Obama, the EPA has resisted such a move, but there is already bipartisan support in Congress for keeping the 75 ppb standard in effect.

‘Very, very close to the standard’

At this week’s AQCC hearing in Colorado, state air quality regulators approved a series of new regulations aimed at meeting the 75 ppb standard. With these rules in place, ozone levels in the Denver metro area should be “at or below” 75 ppb, according to a presentation from a special air quality council comprised of local and state officials.

icon_2016_report_comm“We’re projecting to be very, very close to the standard in 2017,” Ken Lloyd, the executive director of the Regional Air Quality Council, told the hearing. “We’re hoping that we can achieve that level by next year.”

Cutting ozone levels any further than 75 ppb will be extremely hard, Lloyd warned, referring to the EPA’s controversial new standard of 70 ppb. “As we all know, 75 percent of the ozone that’s coming into this area is coming from somewhere else,” he said. This out-of-state air pollution is called “background ozone.” It blows into the U.S. from other countries, like Mexico and China. It’s also generated by natural sources like wildfires.

In his testimony, Lloyd cited a recent study from the National Oceanic and Atmospheric Administration (NOAA) and the University of Colorado which found “high natural background” levels of ozone along the Front Range would leave “very little room for local production” of the air pollutant, formed when organic compounds and nitrogen oxides mix together in sunlight. This issue – background ozone – is why EPA’s own modeling says Denver can’t meet the strict new 70 ppb standard. Gary Bishop, an air quality expert at the University of Denver, has also warned the new standard is practically unreachable.

Nothing is good enough

As State Sen. Cheri Jahn (D) warned last year, the EPA is “setting us up to fail.” And failure has serious consequences. Just about every sector of the economy has sources that produce ozone-forming emissions, including cars, trucks, power plants and businesses big and small. Persistent violation of the ozone standard triggers an enforcement process that requires state and local officials to impose new regulatory restrictions on these sources.

The EPA has veto power over these state and local changes, and effectively becomes “the planning commission, the zoning commission and the state permitting agency all rolled into one,” according to  Ray Gifford, former chairman of the Colorado Public Utilities Commission. These new restrictions hamstring the local economy and make it harder to obtain federal funding for transportation projects. And if the real problem is background ozone, which state and local officials are powerless to control, then there’s no way to escape EPA’s grip. As long as we’re in violation, the EPA can micromanage our local economy, pushing jobs and economic growth out of state.

But there’s more. The EPA-driven process of writing and rewriting state and local regulations is open to abuse and the environmental left has taken full advantage. In Colorado, for example, environmental activists use the process to constantly push for unworkable regulations on the oil, natural gas and coal industries. Simply put, nothing state regulators propose is ever good enough.

“More can and should be done,” lawyer Tom Bloomfield with the Environmental Defense Fund (EDF) told this week’s AQCC hearing on ozone regulations for oil and gas development. “We cannot stop now.”

“There are no safe exposure levels to ozone and other air pollutants,” said Dawn Mullally, Colorado director of air quality and transportation for the American Lung Association (ALA). “Take whatever action is necessary to develop stricter controls.”

Here’s the problem: Only 3 ppb of the Denver metro area’s ozone concentrations come from local oil and gas development, according to the NOAA-CU report. Even if you wiped out the oil and gas sector completely, it wouldn’t be enough to bring ozone levels down from 75 ppb to 70 ppb.

‘Regulatory straitjacket’

And it gets worse. Meeting the 70 ppb ozone standard still wouldn’t be good enough for the EDF and the ALA. Both groups are lobbying for the federal ozone standard to be tightened again, all the way down to 60 ppb. At this level, the ozone standard would be set at or below background levels and have an astonishing impact on our economy. Virtually no local emissions of any kind, from any industry or source, would be allowed. According to the The Denver Post, it would impose “punishing sanctions” and a “crackdown on permits” that would “put the state in a regulatory straightjacket.”

In practice, this means EDF and ALA will only support regulations that make oil and gas production impossible in Colorado. If they’re serious about a 60 ppb ozone standard, then nothing short of a ban will do. This explains why one of their closest allies in the ozone debate – the Sierra Club – was also behind a series of anti-fracking ballot measures in Colorado this year. Those measures would also have driven oil and gas development out of Colorado, but they didn’t make the ballot, the first of many embarrassing failures for the environmental left in elections this year.

To be sure, some environmental groups will persist with high-profile campaigns and strident rhetoric about the need to ban energy development and keep fossil fuels in the ground. But as the Obama administration winds down, and the Trump administration begins, the real work of the anti-fossil fuel movement will probably take place away from the spotlight, in obscure regulatory proceedings at the state and local level, involving reams and reams of red tape.

You may not hear anyone shouting “ban fracking now” or “keep it in the ground” during those meetings. But don’t think for a moment the goals have changed at all.

Simon Lomax is an associate energy policy analyst with the Independence Institute and a consultant who advises pro-business groups. From 2004 to 2012, he was a news reporter covering energy and environmental policy in Washington, D.C. Contact him at



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