Mark Jaffe | The Colorado Sun| A proposed draft of rules to manage the cumulative impacts of oil and gas drilling is drawing fire from legislators and environmentalists for being watered down by Colorado regulators to accommodate the industry’s demands.
An analysis by the legislators found that the Colorado Energy and Carbon Management Commission’s August draft of the cumulative impact rules has at least 17 revisions, all reducing or limiting oversight, compared to a June draft.
“The current draft deviates significantly from the intent of the laws we worked to pass, jeopardizing the protection of disproportionately impacted communities and allowing operators broad leeway to exceed pollution thresholds,” 24 state legislators said in a letter to the ECMC.
The legislature has passed several bills directing the commission to devise rules on cumulative impacts, to limit their impact and protect disproportionately impacted communities, including Senate Bill 181 in 2019, House Bill 1294 in 2023 and Senate Bill 229 and House Bill 1338 in 2024.
“It is a shocking retreat from the essential protections in the June draft,” said Rep. Elizabeth Velasco, a Glenwood Springs Democrat and sponsor of the cumulative impacts and environmental justice bill. “The agency has prioritized industry over public health and safety.”
Kelsy Been, an ECMC spokeswoman, said in an email that “the commission appreciates the legislators’ sharing their views” and that the letter “will be made part of the rulemaking record.” A public hearing on the draft begins Sept. 3.
“The commission is committed to carefully considering all feedback and ensuring that the final rules align with our mission (and legislative directives) to protect public health, safety, welfare, the environment, wildlife resources, and disproportionately impacted communities,” Been said.
Many of the changes in the August draft were made to items oil and gas operators and industry groups had objected to in filings and comments to the commission about the June draft.
In a filing, Chevron Corp., the largest oil and gas producer in Colorado, said it supports “the staff’s thoughtful revisions,” which it said will provide the industry “with additional clarity regarding the standards that will govern operations.”
Four other operators and three industry trade groups supported the legislator’s August draft.
“This rulemaking is taking place in a sea of other mandates and rules,” said Kait Schwartz, director of API-Colorado, a trade group.
The ECMC, for example, just completed a rulemaking on wildlife impacts and the state Air Pollution Control Division has new rules targeting emissions. “We have to look at this cumulatively with all the other work we are doing,” Schwartz said.
Environmental and community groups, however, say it is just business as usual. “These are 60 pages of new rules, give or take, that don’t fundamentally change what happens in Colorado,” said Kate Merlin, an attorney with the WildEarth Guardians.
The June draft set out conditions under which a permit for new drilling could be denied or for the commission to act if sector-wide pollution targets had been exceeded. That language has either been revised or removed.
“Industry will never agree to rules that protect the public through outright permit denials, and the commission must accept that,” said Heidi Leathwood, climate policy analyst for the environmental group 350 Colorado. “Rules do not have to be popular with industry.”
In their letter, the legislators urged the ECMC to consider revising the rules once more, even as it faces a legislative requirement to complete the rulemaking.
“I would rather have strict rules that protect the community than rush something through,” said Sen. Faith Winter, D-Westminster and a sponsor of two bills directing the commission to deal with the cumulative impacts of pollution.
Colorado: Disproportionately impacted communities reclassified, standing reduced
Among the biggest changes is a move from assessing impacts for statutorily defined disproportionately impacted communities to a new designation of “cumulatively impacted community.” Disproportionately impacted communities are ones that are low-income, of color, have vulnerable populations, or have disproportionate environmental burdens.
However, the cumulatively impacted community designation, or CIC, would limit the impacted assessment to communities with a score of 80% or more on the state Department of Public Health and Environment’s EnviroScreen tool, which ranks the risks and impacts for DI communities.
“DI communities are up to 50% of the state,” API’s Schwartz said. “Our perspective is that it is not the best way to find who is being impacted by emissions … using EnviroScreen is more accurate.”
However, this limits the cumulative impact assessment to about a fifth of the state’s disproportionately impacted census tracts.
“This term is counterproductive to environmental justice and serves only to weaken protections for impacted communities,” the legislators said in their letter. “New oil and gas development is not happening in CICs — in fact, no oil and gas permits have been issued in a CIC in at least the last 5 years.”
The August draft would also limit the assessment of cumulative impacts to a radius of one mile from the proposed well site. “That’s three square miles … a broad swath of land,” Schwartz said.
The one-mile boundary would not capture wildfire migration issues or regional ozone air pollution, said Mike Freeman, an attorney with Earthjustice. Earthjustice represents the environmental groups Green Latinos and Earthworks.
For example, Civitas, one of the largest operators in the state, has four proposed well pads in the same area, but each a little more than a mile apart. The cumulative impact of all four isn’t being assessed. There are just four separate cumulative impact analyses,” Freeman said.
“The biggest takeaway here is that these cumulative impact rules don’t base decisions on what total cumulative impacts will be,” Freeman said.
Another controversial change was removing the requirement that oil companies seeking to drill within 2,000 feet of homes in disproportionately impacted communities get the approval of those residents.
In its prehearing statement, Chevron said the rule “would essentially prohibit new oil and gas development within DICs … and should be stricken entirely.”
The ECMC draft depends upon nitrogen oxides, NOx, and greenhouse gas intensity rules set by the Air Pollution Control Division. The intensity regulation limits emission per barrel of oil produced.
In the June draft, the ECMC director could deny a permit if an operator “is projected to exceed its NOx and Greenhouse Gas Intensity Targets.” In the August draft, a driller just has to show it met last year’s standards.
Eight counties — Arapahoe, Adams, Denver, Boulder, Broomfield, Douglas, Jefferson and Weld — and part of Larimer County are in violation of federal health standards for ozone pollution.
Ozone, a corrosive gas, is created when NOx and volatile chemical pollutants mix on hot sunny days and severe ozone pollution is most common during the summer months. Through Aug. 7, there had been 42 days this year with ozone warnings.
The oil and gas industry is the single largest source of NOx in the state and in the June draft a condition of approval was that there would be no drilling and fracking in the nonattainment areas between May 1 and Sept. 30, unless a variance is approved.
The August draft permits summer drilling and fracking provided steps to mitigate impacts are taken.
“The profitable portion of Colorado that remains for the industry is the Denver-Julesburg Basin and that’s where most people live and we are seeing the ECMC approve hundreds of wells in the ozone nonattainment area,” Merlin said.
Mark Jaffe writes about energy and environment issues for The Colorado Sun. He was a reporter and editor at The Denver Post covering energy and environment and a reporter on the energy desk at Bloomberg News. Previously, he was the environment.
