DENVER — Colorado environmental groups are suing the state’s air quality commission, arguing in a Denver court Monday that the state is not adequately carrying out air pollution protections for “disproportionately impacted communities.”
“This is a first for us, that we're going to use sophisticated legal tools, and we will challenge the state when they fail to protect communities,” said Ean Thomas Tafoya, who leads the grassroots group GreenLatinos Colorado.
Tafoya helped lead activists in their push for lawmakers to pass the Environmental Justice Act in 2021. Then, he was the chair of the Colorado Environmental Justice Action Task Force, which developed recommendations for the state to implement the new protections.
The law ordered Colorado’s government agencies to come up with new rules meant to reduce environmental harms, especially in communities hit hardest by pollution.
In response to those requirements, the Colorado Department of Public Health and the Environment (CDPHE), and its Air Quality Control Commission (AQCC), were required to come up with “enhanced modeling and monitoring requirements” for pollution sources in communities with high percentages of low-income residents or residents of color.
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But the environmental groups GreenLatinos Colorado, Earthworks and 350 Colorado — all represented by the legal nonprofit Earthjustice — are arguing in Denver District Court that the commission failed to live up to the Environmental Justice Act’s intentions.
“What we saw is a deference to allow polluters to continue to pay to play,” said Tafoya.
The commission’s rule set up a community air monitoring fund and allows polluters to pay a fee, “which charges sources next to nothing, instead of actually requiring them to meaningfully monitor their emissions,” said Ian Coghill, the Earthworks lawyer representing the environmental groups.
Coghill said community monitoring “doesn't tell you where those pollutants are coming from.”
“We need to know what's coming out directly from one polluter,” alongside community monitoring, Tafoya said. “So that our scientists can triangulate where the problems are coming from, and we can do a more meaningful job in protecting people.”
Their lawsuit also argues the state commission “left out a series of hazardous air pollutants,” Tafoya said. “This matters because this is about directly measuring the air pollution that's coming off of these facilities for specific pollutants that we know cause cancer, heart and lung problems, prenatal issues.”
The environmental groups also argue the commission’s rule narrows down who counts as a “disproportionately impacted community,” which makes it harder for Coloradans to know if they qualify and participate in the state’s processes.
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Additionally, “the Commission didn't even explain why it decided to make the decisions that it made,” Coghill said. Although environmental groups and community members presented evidence of “big flaws in this rule,” the commission didn’t respond to those concerns, he said.
They hope this lawsuit will “require the state to show its work, which, up to this point, it hasn't done,” Coghill said.
Denver7 contacted the CDPHE and the Colorado Office of the Attorney General, which said they cannot comment on pending litigation.
In court Monday, the state argued that the environmental groups don’t even have the standing to bring a lawsuit against the commission over its rulemaking.
The Colorado Oil and Gas Association, an industry group, joined the case on behalf of the state. COGA did not respond to Denver7’s request for comment, and its attorney would not answer questions as he left the courtroom.
“Disappointing, of course, to see the Colorado Oil and Gas Association at the same side of the table as the Colorado Department of Public Health and Environment claiming that we don't have standing as environmental justice leaders to fight for the rights of disproportionately impacted communities,” Tafoya said.
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The Air Quality Control Commission is currently changing its rules for how it holds meetings and rulemaking hearings to make it easier for community to participate.
A CDPHE representative told Denver7 the agency “believes everyone deserves a seat at the table when discussing how to protect clean air across Colorado… Through these new changes, the commission aims to enhance diverse community and stakeholder engagement.”
But the environmental groups taking the state to court said they will continue to push for better protections and involvement of communities.
“We want a state that has the most protective laws for air pollution,” Tafoya said. “We're going to do everything in our power to fight back, and use every tool to protect them.”
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