Community and conservation groups today filed suit in Colorado state court challenging an inadequate rule adopted by the Colorado Air Quality Control Commission (AQCC) to address polluter permitting in disproportionately impacted communities (DICs). These communities, which include significant representation of communities of color, low-income communities, or tribal communities, have historically borne the brunt of greater severe health impacts from environmental hazards and racism.
The rule, which was required by the Colorado Environmental Justice Act, improperly divides DICs into two classes – with one class receiving less protection than the other; allows most polluters to avoid monitoring their emissions at the source by paying a vague “community monitoring fee”; fails to monitor harmful toxic air pollutants; and limits its most stringent requirements to a handful of sources. The groups request the court to find these aspects of the rule unlawful and to return it to the commission for revisions.
The Colorado Environmental Justice Act requires the AQCC to establish rules providing for “enhanced modeling and monitoring requirements for new and modified sources of affected pollutants in disproportionately impacted communities” and to consider requiring enhanced monitoring for existing sources. The adopted rule violates both the Environmental Justice Act and Administrative Procedures Act by failing to evaluate or include any additional hazardous air pollutants, adopting an unreasonably vague community monitoring program instead of imposing monitoring requirements on individual sources, and improperly limiting more stringent source-specific monitoring to DICs that have a certain score on a state screening tool.
Rather than requiring source-specific monitoring, which would pinpoint the source of harmful pollutants, the rule only requires most polluters to pay a maximum $750 fee into the state fund that will be used to construct community monitors. While the commission recognized the need for more modeling and monitoring, which was seen as a positive step forward, groups note that the state will not be able to halt the harm to disproportionately impacted communities without the ability to trace pollution to a specific source. The requirements must apply to the sources themselves and enough of them to be meaningful.
“We must protect the integrity of the Environmental Justice Act,” said Patricia Garcia Nelson, fossil fuel just transition policy advocate for GreenLatinos Colorado. “The community air monitoring program is simply an outline of a rough draft. At this time, the state has not shown us there will be relief for our communities. We cannot be expected to thrive in pollution.”
“The EJ Act requires polluters to do stringent monitoring and modeling in disproportionately impacted communities. The rule as passed by the commission won’t accomplish this, making it impossible to protect communities – it’s as simple as that,” said Heidi Leathwood, climate policy analyst with 350 Colorado. “The commission must be held to account.”
“In its current form, the permitting rule will not adequately protect disproportionately impacted communities from Colorado’s worst polluters,” said Ian Coghill, senior attorney with Earthjustice’s Rocky Mountain Office. “The Environmental Justice Act was clear about what is required from the rule, and we hope that this suit sends the commission back to the drawing board. Communities across the state continue to suffer at the hands of big polluters and it is time for meaningful action to change that.”
“The adopted rule is inadequate because it perpetuates the exact same problem this process was meant to fix,” said Andrew Forkes-Gudmundson, senior manager for state legislative and regulatory affairs with Earthworks. “Coloradans who have historically been forced to bear far more pollution than others just get more of the same with this rule.”
Earthjustice is representing GreenLatinos, 350 Colorado, and Earthworks in the suit.