Governor Polis is inviting more stringent EPA air quality standards than required under the federal Clean Air Act. The new, higher standards will be imposed under the EPA’s “serious” nonattainment status as a direct result of a directive issued by the Governor soon after his inauguration. That’s all right with radical environmentalists and Electric Vehicle enthusiasts who favor an accelerated regulatory timetable in their war on automobile emissions. However, the Governor’s action ought to alarm folks who care about unnecessary blows to a Colorado economy already under assault by the extreme overreach of the 2019 legislative session.
Why is the federal EPA taking this regulatory action? Under the National Ambient Air Quality Standards mandates (NAAQS), Colorado must submit by May each year a certification statement to EPA documenting the state’s compliance with the NAAQS. By both federal and state law, that state certification must include a statement on Colorado’s performance in meeting ozone-related air quality standards. However, the Polis administration’s certification for 2018 has omitted critical scientific data that would have shown the state to be in compliance with NAAQS.
A lawsuit filed in Denver District Court in late April by the Defend Colorado business alliance documents how the state’s EPA certification fails to meet the legal requirements for accuracy and completeness.
How did that happen, you may ask. Whereas Polis’ predecessor, Gov. Hickenlooper, sought to avoid any EPA downgrading, Polis welcomes it. Polis personally intervened in the preparation of that annual report: he directed the Air Pollution Control Division to omit available scientific evidence showing that a substantial portion of the Front Range’s ground-level ozone pollution is traceable to out-of-state sources, namely West Coast and Asian atmospheric sources.
The increased ozone levels detected in Denver and Front Range testing are demonstrably not caused by automobile emissions, which have been steadily improving over the past decade. And yet, Polis told Coloradans in his January 17 executive order that putting more Electric Vehicles on our highways is necessary if we want to improve air quality.
Following Hickenlooper’s policies, the staff at the Air Pollution Control Division (APCD) were preparing the state’s annual certification to demonstrate that an automatic reclassification to “serious” nonattainment was unwarranted based on the scientific data. Polis directed APCD staff to halt all work involving the use of the EPA waiver available under section 179(B) of the federal Clean Air Act, which acknowledges the role of out-of-state sources of ground-level air pollution.
- The available scientific data shows that but for the added ozone pollution coming from atmospheric contributions from the West Coast and Asia, Colorado’s 2018 test results would show the state to be in compliance with the NAAQS.
- The EPA’s 179(B) waiver authority has been used by several other states, including California as recently as January of 2018.
- Based on the Polis directive to the APCD, in March the Air Quality Control Commission voted against holding a public hearing to examine the available scientific data on ozone pollution.
Omitting the available ozone pollution data is contrary to provisions of Colorado’s own Clean Air Act, which requires the annual EPA certification to be based on “the most accurate inventory of air pollution possible” (C.R.S.25-7-106(1). The deliberate omission of readily available scientific data on the statistically significant contributions by out-of-state sources of air pollution is wholly inconsistent with statutory requirements.
To put even more icing on his green cake, on January 17, Polis signed an executive order directing the AQCC to undertake new rulemaking to adopt the California “Zero Emission Vehicle” (ZEV) regulations. That directive, too, may be unlawful.
According to an August 2018 statement by the CDPHE director, Dr. Larry Wolk, the Governor has no authority to direct the AQCC to undertake any rulemaking not already authorized under Colorado law. The AQCC is an independent regulatory body answerable only to Colorado law, not to a Governor’s directives attempting to override or circumvent Colorado law. Thus, both the Commission’s 2018 Low Emission Vehicles rulemaking and the new Zero Emission Vehicle rulemaking being launched on May 10 are of doubtful legality.
It is perhaps not entirely accidental that this EPA certification scandal is occurring at the same time the legislature has been preoccupied by the end-of-session crush of new legislation, much of it damaging to the state’s job creation infrastructure. Unfortunately, Polis’ elevation of radical environmental politics over science in order to invite greater EPA regulatory burdens will have serious consequences for Colorado economy in the decade ahead.
John Cooke is a Colorado state senator representing Senate District 13 in Weld County.