In an effort to create more public participation in rulemaking and to improve transparency in the process, the Colorado Air Quality Control Commission voted Friday to overhaul its procedural rules for the first time since 1998.
The new rules will extend from three months to four months the average time around most rulemakings, will restructure the way that parties to such hearings file motions and will attempt to define the scope of rulemakings more clearly from the start. They will become applicable in August, meaning that business and environmental groups that interact frequently with the AQCC will see the first changes by February or March in preparation for hearings later in the year.
While technical in nature, the changes are significant because the AQCC has become the primary state regulatory body implementing Gov. Jared Polis’ emissions-reduction mandates, and more community and industry groups must interact with it regularly. It has OK’d rules in the last year-plus increasing regulations on sectors from oil and gas to manufacturing to commercial buildings, and it will deal in the next year with new limits to air toxins and restrictions on the midstream energy sector, among other things.
Under the new procedures, the Colorado Air Pollution Control Division will bolster its outreach process and work to unveil draft rules as early as two months before asking the AQCC to set a rulemaking hearing. That request will then set off a process in which groups affected by proposed rules file initial comments first, then responses and then a final set of statements that could include alternate proposals to the APCD’s suggested rules.
Long debates about how to hold debates
Over the past two days, frequent parties to rulemakings debated how the scope of each rulemaking must be considered, what order testimony will proceed in and whether the AQCC should have to explain the rationale of its decisions at greater length. Essentially, they fought about how they plan to fight in future hearings.
In the end, every party got what might be considered a mixed bag of results, as both business and environmental interests won and lost some of their arguments and AQCC members backed their staff’s proposal in some places while rejecting it in others. The final rules will, for example, allow for some limitations to the scope of hearings but not as much as industry leaders sought, and they’ll reorder hearings to give outside groups a little more voice in them and give state staffers a little bit less.
“This was quite an ordeal,” said Martha Rudolph, the AQCC member who served as the hearing officer for the two-day discussion. “I think there may have been people in this room who thought procedural rules were not a big deal. They are a very big deal.”
Scope of rulemakings a flashpoint
After the ACPD releases draft rules in the future, parties will get to weigh in with proposed changes that can be challenged by other parties as being beyond the scope of the hearing. The hearing officer — traditionally one of the nine AQCC members, serving on a rotating basis — will then determine early in the process which changes are outside the scope of the hearing, forestalling arguments that now could go for months about alternate proposals that some parties, typically industry leaders, feel go well beyond the intent of the rules.
The Colorado Oil & Gas Association, American Petroleum Institute Colorado and Colorado Chamber of Commerce all argued for some limitations on rulemaking scopes, saying that otherwise groups could propose ideas that affected industries weren’t ready to debate. But the AQCC declined, agreeing only to limit ideas proposals to a logical growth from suggested rules rather than to a logical growth “or extension” of those rules.
“In practice, they would needlessly preclude viable alternative proposals and weaken the commission’s rulemaking authority,” Riley Scott, an attorney for the Local Governments Coalition said of proposed efforts to put more firm definition around scope.
Those business and environmental groups joined together to ask the AQCC to allow parties to appeal the decisions of hearing officers about what was inside or outside of the scope of rulemakings — but they ended up losing that argument. Instead, the AQCC sided with APCD staffers who warned that adding an appeal process could add as much as a month to the hearing proceedings, and the new rules instead allow only for the hearing officer to turn to the full AQCC if they have questions about scope.
Order of testimony for rules also at issue
The usually sparring green and industry groups fought for and won a different change regarding the order of testimony in hearings.
Now, APCD staffers who offer new rules get to testify first on those proposals and then get to testify last in the rebuttal stage of hearings, meaning they get both the initial and final arguments and, critics say, have an inordinate amount of sway with the commission.
But under changes the AQCC approved late Friday afternoon over the objection of staffers, the division will have to testify first in both the opening and rebuttal stages of the hearing, meaning that other parties can frame their rebuttals around what the APCD says. This would avoid “sandbagging,” the practice of the final testifiers holding back information until the very end to gain an advantage — a tactic that APCD said it does not employ but that others say has been used to shut down their arguments before.
“They get to raise a lot of stuff and we’re sitting there muted. That’s the frustration,” said John Jacus, a partner with Davis Graham & Stubbs testifying for the Colorado Chamber.
AQCC members did determine that APCD staffers should get a short “surrebuttal” at the very end of the rebuttal stage where they only can answer questions from commissioners that had been raised by other parties.
Environmental groups’ concerns about rules
In addition to making the rulemaking process more accessible to a wide range of participants, Jeramy Murray, supervisor of the APCD’s regulatory development unit, said he wanted to ensure every step of the pre-hearing process would add value for stakeholders. Business leaders have noted that as the state government entrusts the AQCC with more responsibility in determining specific rules to meet legislative mandates to reduce greenhouse gas emissions, industry leaders are spending more time in rulemaking.
While most business and environmental groups lauded the update to the procedural rules, a coalition including Earthjustice, GreenLatinos and the Sierra Club sought even more changes they argued were necessary to let resource-limited communities participate. And the AQCC only backed some of their requests.
Commissioners agreed, for example, to increase oral public-comment periods from two minutes to three minutes per speaker and to reduce from 14 days to five days the deadline before hearings for members of the public to submit written comments. Ean Thomas Tafoya, state director for GreenLatinos, said that adding time for community members to voice their concerns about needed protections was an environmental-justice issue.
However, the commission rejected pleas from the groups that commissioners be able to respond to public commenters individually and that the AQCC have to explain in detail in its decisions why it approved or rejected each suggestion from various parties. APCD staffers said they felt that providing such explanations or trying to summarize what they felt were each party’s most important arguments could cause legal problems for the AQCC, which already is being sued over several recent rules.