On Dec. 17, the Democratic majority on the Committee on Legal Services—one of several year-round joint legislative committees–voted along party lines to reject the recommendation of attorneys from the Committee and upheld the September 2019 rule adopting California vehicle emissions standards for Colorado.
The Committee’s action will now be subject to debate and a vote in both the House and Senate when the Rule Review Bill comes to the floor this spring.
The question before the Committee was the legal sufficiency of Rule 20, known as the California Low Emission Vehicle standard, adopted by the Air Quality Control Commission and formally promulgated on September 30.
The Committee’s six Democrats upheld the AQCC’s rulemaking, dismissing the committee staff’s recommendation to overturn the regulation as inconsistent with Colorado law. This hearing was the legislature’s primary opportunity to provide oversight to the Governor’s administrative agencies.
The law holds that when an agency meets all the procedural requirements prior to making a rule, the courts must give the agency the benefit of the doubt on the rule’s substance. Therefore, it is extraordinary that Committee attorneys would have to recommend a rule be rejected on procedural grounds.
The AQCC’s adoption of California emission rules is the subject of multiple lawsuits, filed against the agency by the Colorado Auto Dealers Association and a consumer coalition called Freedom to Drive. The allegations in these suits are similar to the findings of the Committee’s attorneys—namely, the AQCC’s rule adoption was procedurally deficient and should be stricken on that basis.
In December those lawsuits were put on hold, pending the resolution of a federal lawsuit, in which California is challenging an action of the Environmental Protection Agency to create one national standard for vehicle emissions. California evidently believes that agency deference should only exist when a California agency makes rules.
The resolution of the issue impacts Colorado directly: If California no longer has EPA permission to have a separate set of emission rules, then no other state can adopt California’s rules. Therefore, Colorado’s recent rulemaking would be null and void.
However, the lawsuits against the AQCC allege violations of Colorado law as well as this federal issue.
Although those state lawsuits are on hold until the federal issue is resolved, the question of the legal sufficiency under Colorado law was also challenged, in part, by Committee staff, via a Dec. 17 memorandum to the Committee. That challenge was heard in an open hearing and swiftly rejected by the majority Democrats.
This vote means that the emissions rules survive another day, until the courts are able to hear these cases on the merits.
Sen. John Cooke represents State Senate District 13 in Weld County.
