In GreenLatinos v. Colorado Air Quality Control Commission, the Colorado Court of Appeals unanimously rejected claims by GreenLatinos, 350 Colorado, and Earthworks (Plaintiffs) that the modeling and monitoring requirements in Air Quality Control Commission (Commission) Regulation No. 3 (the Rule) were insufficient under HB 21-1266, the Environmental Justice Act (EJ Act). The Court’s decision means that eligible sources of emissions may continue to pay for state-run “community” monitoring instead of operating their own “source-specific” monitors on site, and the Commission need not expand the Rule to cover additional pollutants. The Plaintiffs petitioned the court to reconsider its decision, and that petition is pending.
The modeling rule
Modeling is a computer process used to estimate the air pollution concentrations people may be exposed to. Dispersion modeling estimates how air pollution may spread over an area based on a number of factors. The Rule generally requires stationary sources of air pollution to submit air dispersion modeling results when applying for permits to construct new or modified sources of “Affected Pollutants”—defined under the EJ Act as volatile organic compounds (VOCs), oxides of nitrogen (NOx), fine particulate matter (PM2.5), and four named hazardous air pollutants—if the applicant requests an emissions rate, or an emissions rate increase, above certain thresholds. Under the Rule, a “stationary source” is “[a]ny building, structure, facility, or installation . . . that emits or may emit any air pollutant subject to regulation under” federal regulations, such as power plants, factories, or oil and gas production facilities.
The monitoring rule
Monitoring involves measuring emission rates, pollutant concentrations, meteorological conditions, or other data. Under the Rule, construction permits issued to sources in Cumulatively Impacted Communities (CICs)—meaning census block groups with Colorado EnviroScreen scores above the 80th percentile—must require source-specific monitoring at property boundaries or other approved locations if the modeled concentrations of Affected Pollutants exceed certain levels.
However, instead of source-specific monitoring, some sources that obtain construction permits to increase emissions of Affected Pollutants will pay a one-time fee to the Air Pollution Control Division. The fee is used to fund a state-run community monitoring program. This applies if the source is in a CIC and the modeled concentrations are below thresholds, or if the source is located in a Disproportionately Impacted Community (DIC) with an EnviroScreen score at or below the 80th percentile.
The Rule treats oil and gas well production facilities differently. Commission Regulation No. 7 requires well production facilities to monitor during pre-production activities and the first six months of production. The enhanced monitoring Rule requires well production facilities located in CICs that submit permit applications to continue Regulation No. 7 monitoring for the life of the facility, and may require source-specific monitoring depending on the Affected Pollutant emissions rates and modeling results.
The rule also requires all construction permit applications to include an Environmental Justice Summary and imposed Reasonably Available Control Technology requirements (RACT) on new and modified sources of Affected Pollutants in CICs. Plaintiffs did not challenge the well production facility, EJ summary, or RACT provisions.
The lawsuit
At the district court, Plaintiffs claimed the rule violated the EJ Act and the Administrative Procedure Act. They claimed the EJ Act requires source-specific monitoring instead of community monitoring; the community monitoring fees are unreasonably low and lack supporting evidence; the Commission erroneously relied on EnviroScreen scores to distinguish CICs from other DICs; the 80th percentile threshold is arbitrary and capricious because few sources will perform source-specific monitoring; and the Commission ignored the Plaintiffs’ request to list additional Affected Pollutants. The district court upheld the Rule, and Plaintiffs asserted the same arguments to the court of appeals.
The court held that:
- Although the EJ Act requires “enhanced” monitoring, it does not define it nor does it specify that monitoring must be source-specific. Giving “enhanced” its usual and ordinary meaning, the court held that the 2023 rule is enhanced because it goes beyond prior requirements. In drafting the Rule, the Commission used its discretion and expertise to determine how to enhance monitoring
- The community monitoring rule reasonably requires the Division to perform the monitoring. The Commission did not need specific factual support for the dollar amounts because the rule is based on policy considerations, and the Rule’s Statement of Basis and Purpose (SBAP) directs the Division to reevaluate the fee amounts every 3 years
- It was reasonable to use the 80th percentile score to prioritize CICs over other DICs, even though the score is based in part on non-air quality factors. The Commission had an adequate record supporting its use of the threshold, and the SBAP set forth its rationale
- Declining to list additional pollutants was within the Commission’s discretion. The statute’s definition of Affected Pollutants, which includes four specific Hazardous Air Pollutants (HAPs) and others “as identified by the Commission,” allows the Commission to list more HAPs but does not direct it to do so. Further, the Commission is not required to accept a party’s evidence or alternative policy proposals.
The court did not specifically address plaintiffs’ argument that too few sources will perform source-specific monitoring, except to say the overall rule was reasonable.
For questions regarding modeling and monitoring requirements, and other rules of the Air Quality Control Commission, please contact Craig Rowland or Chris Colclasure.