Nine Colorado counties sued the state’s Air Quality Control Commission March 12 over rules adopted in December to regulate emissions from oil and gas operations statewide.
The regulations were adopted as part of the rulemaking required under Senate Bill 181, the landmark oil and gas legislation signed into law last year, which required the commission to adopt rules to minimize harmful emissions from the natural gas supply chain and review leak detection and repair inspection requirements for oil and gas wells.
The lawsuit, which also names the Air Pollution Control Division and the Colorado Department of Public Health and the Environment as defendants, alleges the agencies violated the Colorado Air Pollution Prevention and Control Act, the Colorado Administrative Procedure Act and the commission’s own procedural rules when considering and adopting the regulations.
The plaintiffs in the case are the boards of county commissioners in nine rural and western Colorado counties: Garfield, Cheyenne, Logan, Mesa, Moffat, Phillips, Sedgwick, Rio Blanco and Yuma.
The counties, many of which rely heavily on natural gas and oil production, say the commission took a “one-size-fits-all” approach in adopting the new rules and failed to consider local government concerns and properly complete economic impact and other studies required under state law and AQCC procedural rules.
Denver and areas along the northern Front Range, stretching into Larimer and Weld counties, have fallen short of federal air quality standards and, as a result, are subject to higher regulatory burdens.
The plaintiff counties argue some of the new AQCC regulations, while they may be appropriate for urban Front Range counties that need to lower their emissions, impose an economic burden while providing little environmental benefit to rural areas that already meet federal air quality standards.
“I think it’s really important to understand that western counties have some of the cleanest air in the state,” said Davis Graham & Stubbs partner Ben Strawn, who is representing the counties. He added that Garfield County, in particular, has gone to great lengths to monitor its air quality.
“All of these counties support regulations to protect the environment [and] air quality,” Strawn said. “What they’ve tried to do in this complaint is pick the few things where the commission went too far.”
Specifically, the counties think the commission went too far in adopting four revised provisions and are asking the court to invalidate those rules. The challenged changes include lowering the regulatory threshold for emissions controls on storage tanks and increasing the frequency of leak detection and repair inspections on certain facilities, as well as new requirements to control emissions during the unloading of hydrocarbon liquids into trucks.
The plaintiffs allege the AQCC didn’t properly consider local concerns and weigh economic, environmental and energy impacts as required by CAPPCA.
A fourth revision they’re seeking to scrap would increase leak detection and repairs at facilities within 1,000 feet of “occupied areas,” a term they say is poorly defined. According to the complaint, the proposed rule originally used the phrase “building unit,” but the coalition of community organizations that proposed it later replaced “building unit” with “occupied areas.” Among other things, the counties allege the revised proposal was introduced after the procedural deadline and wasn’t accompanied by an updated economic impact analysis.
But attorney Matt Sura, who represented the community groups during the rulemaking, said the revision was not substantive. “The only difference between our initial proposal and what ultimately was adopted was the addition of playgrounds and parks,” he said.
That change was important, Sura said, due to recent incidents involving oil and gas facilities near schools, such as a high-pressure gas leak at a Greeley high school in 2017 and a spike in benzene levels last fall at Greeley’s Bella Romero Academy, which is located near a fracking site.
The community organizations’ proposal was simply meant to require quicker fixing of leaks at facilities located within 1,000 feet of homes, schools, playgrounds and parks, according to Sura, as current regulations currently allow the industry to wait up to two years to make repairs.
“The reality is that we have been allowing core oil and gas facilities to be placed dangerously close to homes and schools,” Sura said. “And there have been impacts from those industrial activities in the form of explosions, loss of life in some cases, and a lot of air quality complaints over the years.”
As for the counties’ concerns about the economic impact analysis, Sura said the analysis that was submitted covered every address point available, including parks, schools and vacant lots. “If anything, it was an overestimate of the impact to the industry,” he added.
According to the lawsuit, University of Wyoming professor of economics Timothy Considine presented expert testimony during rulemaking hearings saying the new regulations could lead to halted production at smaller wells in rural and western Colorado. Considine said the well shut-ins could result in the loss of between 55 and 280 full-time jobs and between $757,000 and $3.8 million in local tax revenues.
The state has not yet filed a response to the counties’ complaint. The CDPHE said that, as a matter of policy, it doesn’t comment on pending or ongoing litigation.
— Jessica Folker