AQCC RULEMAKING, 9/23/20

Many thanks to Wildearth Guardians’ Jeremy Nichols for this incisive summary of this important day of hearings at the AQCC on air quality relating to oil & gas emissions this week. Mr Nichols is an staff attorney for Wildearth Guardians, and director of their Climate and Energy Program (wildearthguardians.org). For more information about the AQCC, see https://www.colorado.gov/pacific/cdphe/aqcc.


Thought I’d share a quick update and some perspective on recent happenings at the CO Air Quality Control Commission.  After a three hour evening deliberation this past Wednesday, they adopted new rules requiring, among other things, new emission controls for large natural gas-fired engines used in the oil and gas industry, new emission controls for some additional oil and gas extraction activities, and new monitoring requirements for pre-production activities at oil and gas well sites.  The adoption comes on the heels of a two day hearing held on Sept. 17-18 the week before.  350 CO and WildEarth Guardians were CCLC members directly involved as parties to the rulemaking.  Other groups, including NPCA, EDF, and Conservation Colorado, were also involved.


The rules were proposed as part of the state’s efforts to meet regional haze requirements under the Clean Air Act, but as usual, the Air Division also claimed the rules would make progress in meeting HB-1261 and SB-181 requirements.

The rules weren’t a huge proposal, they really were nibbles on the edges.  In spite of this, they still drew a considerable amount of controversy.  On the engines, NPCA pushed for the rules to require electrification.  Surprisingly, that proposal received considerable pushback from Xcel and other utilities.  This unfortunately could be a harbinger of utility opposition to electrification in general, which of course is concerning in light of the massive electrification needed to meet our climate goals.  Ultimately, the Commission refused to adopt any degree of electrification, in part citing the “costs” to utilities.  


The rules proposed to require additional emission controls for oil and gas underground injection well facilities and for flowback activities at well sites.  These controls are useful and a great step forward.  Still, more pollution controls are always helpful and we still don’t have pollution controls required for many other stages of pre-production activities, like drilling.


On the oil and gas monitoring, both Guardians and 350 were very concerned about the lack of specificity, the failure of the rules to require any degree of continuous monitoring, and of course the fact that the Division gave monitoring responsibilities completely to industry (350 CO should say more on this if they want!).  Guardians actually opposed the proposal.  Although the concept of monitoring oil and gas emissions is good, the rule was so open-ended and so beholden to industry that it seemed to lack the integrity needed to assure useful and credible data.  The Division hyped it up as an “R&D” monitoring rule and EDF and other parties touted the proposal as ground-breaking and “first in the nation.”  
Several parties made an issue out of local government involvement in monitoring.  Boulder County Commissioner Elise Jones on the Air Commission helped drive discourse on that front.  The intention was to ensure local governments could have some degree of oversight over monitoring plans and actual monitoring, as well as have access to data.  
In any case, on Wed evening the Commission deliberated over the proposal and ultimately adopted the monitoring rule, albeit with several significant improvements proposed mostly by Commissioner Jana Milford.  Still, she had to fight hard to get many changes adopted.  Here are a couple stories on the proceeding that present the various perspectives:


https://coloradosun.com/2020/09/24/colorado-adopts-fracking-emission-rules/

The rules are certainly a step forward, but we remain very concerned around the Division’s attempt to put an iterative monitoring program in place via rule.  It is concerning that there is still considerable open-endedness and industry is still very much in charge of everything.  Unfortunately, Colorado is not making meaningful progress toward rigorously and continuously monitoring emissions and ensuring effective and objective oversight of monitoring activities.


The proceeding was most notable because of the dynamics brought by the new Commissioners recently appointed by the Governor.  The Commission was very noticeably more pro-industry.  While there were pro-industry members on the Commission before, there were really only two strident voices who were mostly quiet due to the majority being pro-climate and pro-action.  Two of the new Commissioners–Randy Ahrens and Gary Arnold–were very sympathetic to industry during the proceeding and as a result, which I saw give more space for other pro-industry or industry-sympathetic Commissioners to speak up more and push back against proposals to strengthen the rules.  


Unfortunately, after witnessing the entirety of the proceeding, from my perspective, the majority of the Air Commission now consists of members who will reliably uphold the status quo (i.e., do whatever the Air Division asks), if not roll it back.  Unfortunately, the Commission is no longer comprised of a majority who want to see more action on climate and clean air.


The final rule language hasn’t yet been posted, but once it is, I’ll share.  And if 350 CO wants to add anything more, please do, would love to hear more perspective!


Jeremy

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