Did you hear the one about the state government offering the public free lawyers to harass … the state?
It’s no joke. In one of the first tangible impacts of environmental justice policies and rules that are working their way into multiple battlegrounds overseen by state and federal regulators, Colorado’s public health department now links community groups with pro bono lawyers who can help the groups become official “parties” in complex environmental rulemaking, giving them a voice amplified by legal muscle.
The first such effort will play out later this year as the Air Quality Control Commission writes new rules requiring some of the largest industrial polluters in Colorado to cut their greenhouse gas emissions by set percentages. The community group Climate Equity Community Advisory Council wants to ensure the state requires 18 targeted industrial polluters to make real cuts using the best technology, not just the cheapest. And they want an accounting of the results down the road.
The air commission and many other state agencies have always taken public comments, said Rachael Lehman, a member of the advisory council, and a Community College of Denver faculty member who volunteers to work on environmental issues.
But too often, Lehman said, “the result is ‘We got your comments, now shut up.’ I’ve seen it in multiple situations, where they say, ‘Yes, we had so many community meetings.’ OK. But did they actually listen and incorporate what the community said?”
Regulators from the Colorado Department of Public Health and Environment put the community council in touch with volunteer Wyatt Sassman of the University of Denver Sturm College of Law’s Environmental Law Clinic. They are now a party to the industrial pollution rulemaking, sitting shoulder to shoulder with the likes of Anheuser-Busch, Cargill, Molson Coors and environmental giants like the Sierra Club.
“It’s important for us to just have that ability to be able to keep an eye on things, and make sure that the rule is being written in a way that is understandable,” Lehman said. She worries that the big companies targeted by the industrial rules “have the big, big pockets, and you can sort of buy your way out of this.” Sassman, she said, is helping the community group understand the rule drafts word by word, and “what’s even in the realm of possibility.”
State officials said they have worked hard to create meaningful community engagement.
A series of state and federal policies made into law in recent years require agencies to consider how past pollution has disproportionately impacted communities with lower incomes and higher minority populations. By default or conscious zoning, Colorado industries are concentrated in communities like north Denver, Adams and Pueblo counties, and in other locations with measurable impacts on the physical health of lower income residents.
“We just are looking at our process from beginning to end, thinking about how we can interact with all stakeholders and open the door to include voices we aren’t hearing, which was quite a few,” said Lauren McDonell, climate change outreach planner for the Air Pollution Control Division. The division staffs the air quality commission and carries out day-to-day air regulation.
The commission’s rulemaking sessions debate how to carry out directives from the legislature. As part of Colorado’s overall effort to reduce all greenhouse gas emissions by 50% by 2030, the legislature added details in 2021 requiring the largest industrial polluters to cut emissions 20% by that year, from a 2015 base year. Any industrial company emitting over 25,000 metric tons of greenhouse gases a year would need to start limits in 2024.
After rounds and rounds of filings by the parties, public comments and state responses, the commission will take up the industrial rules, called GEMM Phase 2, in September. The list of 18 Colorado companies ranges from American Gypsum to Molson Coors and Cargill Meat Solutions, to Sterling Ethanol and Suncor Energy’s Commerce City refinery.
Public comments are great, McDonell said, but if a community group is granted “party” status, “they’re actually around the table with other entities, who actually can get into the details of the rule language, they can propose different language, alternate proposals.”
Becoming an official “party” has more involvement and influence, “but it’s also more time, and it comes with deadlines and things that are related to a legal process. They don’t require an attorney, but it’s a heck of a lot easier if you have one,” McDonell said.
How the program took shape
The APCD’s Clay Clarke reached out to the Colorado Bar Association environment committee and wound up with a list of pro bono attorneys willing to dig in on behalf of community groups.
The corporations will have their general counsel and expensive private attorneys, and the established environmental nonprofits have their staff and contract attorneys, Sassman said. Community members who may live right next to the industrial plants, meanwhile, are facing “complex and jargony” issues, in their spare time.
“That’s where somebody like us could come in and help,” Sassman said.
State officials say they are prepared to handle the results from their efforts at balance, and know full well they are handing the community a list of lawyers who could make regulators’ lives miserable.
“No one’s ever too happy with us” anyway, McDonell said. “But in all seriousness, I think the priority here is to get the voices to the table to have a normal conversation because historically, again, it’s those well-funded groups that have been part of the conversation. We don’t have any control or expectation about them being supportive of us or the proposal. We know they’re going to challenge us and we want that, we welcome that.”
Lehman and the advisory council already have some buzzwords in the rule drafts for which they are seeking more legal explanations.
Carbon capture, for example, bothers Lehman to no end. She fears state regulators may allow the industrial polluters to keep spewing damaging air into neighborhoods but then offset it through buying carbon credits or stuffing the carbon underground in long-term storage, an ethically controversial tradeoff.
Community groups also want tough enforcement language written into the rules, Lehman said. If she gets too many speeding tickets, her driver’s license is taken away, she said. But companies like Suncor have years of multiple air violations and never lose their permits.
“It is a dual system of justice,” Lehman said. “Big polluters continue to do what they want, and our government doesn’t have the courage to just say we are in the business of protecting our citizens and you have to shut down. How is that so hard?”
The air pollution division knows the lawyers on their pro bono list will bring those arguments, and more, to the industrial pollution rules, and other upcoming policy battles.
“We absolutely have a deep commitment to environmental justice,” McDonell said. “But we can only say that so many times.”