Colorado Governor Issues Roadmap to 100% Renewable Energy

At a May 30 signing ceremony for many of the groundbreaking energy and climate change-related bills passed in the 2019 legislative session, Colorado Governor Polis released his “Roadmap to 100% Renewable Energy by 2040 and Bold Climate Action.”  The Roadmap highlights early action taken in 2019 and outlines the following seven principal strategies to help realize the Governor’s campaign promise:

Modernize the Public Utilities Commission.  The PUC will start considering the social cost of carbon in decision-making processes, oversee the resource planning efforts of Tri-State Generation for the first time, and consider a plan from Xcel Energy to achieve 80% greenhouse gas reductions by 2030 (per SB19-236).  The Roadmap also calls for consideration of joining a regional electric grid with other western states and exploration of opportunities—such as performance-based ratemaking—to better align utility activities with public goals.

Grow Green Jobs and Save Consumers Money.  The Roadmap recognizes recent bills (HB19-1003, SB19-236, and HB19-1272) that expand access to, and financing for, onsite and community solar and calls for expanding consumer access to distributed renewable energy generation and storage.  It also recognizes the need to expand innovative financing mechanisms, including Commercial Property Assessed Clean Energy (C-PACE) financing and a green bank through the Colorado Clean Energy Fund.​

Promote Energy Efficiency.  The Roadmap calls for improved efficiency codes, expanded low-income weatherization services, and support for grid infrastructure upgrades to improve system efficiency.  This element builds on HB19-1231, which adopts new appliance standards in Colorado.

More Zero Emission Vehicles and Commuting Options.  Several bills promoting vehicle electrification were passed in 2019, including:

• SB19-077, which allows utility investment in charging infrastructure;
• HB19-1159, which expands tax credits for electric vehicles (EVs);
• HB19-1198, which increases the flexibility of the EV Grant Fund; and
• SB19-239, which calls for a stakeholder process to accelerate the electrification of vehicle fleets

The Roadmap also calls for additional incentives for commercial fleets to switch to EVs, expanded charging infrastructure throughout the state, and consideration of a Low Carbon Fuel Standard.

Ensure a Just and Equitable Transition for All of Colorado.  In addition to recognizing HB19-1314, which calls for a just transition away from coal-fired electricity, and SB19-236, which requires consideration of workforce transitions when utilities retire facilities, the Roadmap requests consideration of additional financing mechanisms to accelerate the transition away from fossil fuel-based energy in a way that supports affected workers and communities, while continuing to support impacted communities through the Department of Local Affairs’ Rural Economic Development Initiative.

Support Local Commitment to 100% Renewable Energy.  The Roadmap identifies the 14 cities, towns, and counties in Colorado who have committed to 100% renewable energy targets and calls for the development of programs and strategies to support local energy goals and investment in rural electric vehicle infrastructure and renewable energy.

Move Towards Zero Emissions Buildings.  The Roadmap recognizes the need to develop a blueprint for building electrification and work with stakeholders to thoughtfully design the next generation of buildings in Colorado.  This element builds on HB19-1260, which requires local jurisdictions to adopt updated energy standards when amending their building codes.

These actions will also compliment the requirements of HB19-1261—also signed by the Governor on May 30—and puts pollution reduction goals into statute to reduce Colorado’s greenhouse gas pollution by 26% by 2025, 50% by 2030, and 90% by 2050 of 2005 levels.  That law will be implemented by Colorado Air Quality Control Commission, following an extensive stakeholder process throughout the rulemaking period.

For a summary of the bills referenced above and other key energy and climate legislation passed in 2019, please see our 2019 Year in Review.

For more information about Colorado’s energy transition or other energy and climate change related issues, please contact Sarah Keane, Tom Bloomfield, or Bob Randall.

Kaplan Kirsch & Rockwell publishes Energy + Climate Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

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Colorado Legislature Makes Sweeping Changes to the Energy and Climate Landscape in 2019

Colorado’s 2019 legislative session, which ended May 3, was perhaps the state’s most active ever in the areas of energy and climate change.  The two most notable bills that passed this session are HB19-1261, which sets a statewide greenhouse gas reduction target of 90% below 2005 levels by 2050, to be implemented by the state’s Air Quality Control Commission; and SB19-181, which allows local governments to oversee many aspects of oil and gas extraction in Colorado for the first time and requires the consideration of environmental and health impacts when approving new operations.

Overall, Colorado’s legislature indicated strong commitments towards tracking, accounting for, and reducing climate pollution; promoting the adoption of electric vehicles; planning for the transition away from coal-fired electricity generation; and protecting disadvantaged communities during the transition to a cleaner energy economy.

Summaries of the key energy and climate legislation from this session are included in our 2019 Year in Review.

For more information about 2019 legislation or other energy and climate change related issues, please contact Tom Bloomfield, Sarah Keane, or Bob Randall.

Kaplan Kirsch & Rockwell publishes Energy + Climate Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

On April 12, 2019, CityLab published attorney Christian Alexander’s story discussing the key reasons why the City of Cape Town, South Africa survived a historic drought and the worst potential municipal water crisis in modern history last year.  Parsing municipal policies, technical fixes, and public outreach strategies, the article provides insights for other cities facing increasing risk of severe weather events in an era of climate change.

Kaplan Kirsch & Rockwell advises local governments, nonprofit organizations, and other parties on critical issues in federal, state, and local climate policy.  Our attorneys understand the need for strong public action to mitigate climate change and its adverse effects, and we have experience crafting innovative policy approaches to address this necessity.

New Oil and Gas Law Offers Opportunities for Colorado Citizens and Communities

On April 16, Governor Polis signed Senate Bill 181, ushering in sweeping changes to oil and gas oversight in Colorado.

The new law gives local governments additional regulatory authority over oil and gas operations, changes the makeup and charge of the Colorado Oil and Gas Conservation Commission (COGCC), expands the role of the Colorado Department of Public Health and Environment (CDPHE), and imposes new requirements on oil and gas operators.  When fully implemented, the new law will lead to reduced air emissions, increased local government involvement, and enhanced protections for Colorado’s environment and communities.

The new law enables local governments to oversee many aspects of oil and gas development for the first time ever.  The law grants local control over where oil and gas wells are located and expands the ability of local governments to protect water and limit air emissions in a manner more stringent than the State. It also allows local officials to inspect facilities, impose fines for violations, and assess fees necessary to cover the costs of local regulation and oversight of the industry.

SB 181 directs the COGCC to develop rules for evaluating alternative sites, addressing cumulative impacts, increasing financial assurance, overseeing flowlines and shut-in wells, enhancing wellbore integrity, and certifying oilfield workers.  The COGCC is likely to begin rulemaking later this year to implement these and other new mandates, and those proceedings will likely run well into 2020.

The law calls on the Colorado Air Quality Control Commission (AQCC) to adopt rules requiring operators to monitor and to minimize emissions of methane, volatile organic compounds, and other pollutants from oil and gas wells and production and transmission facilities.  In doing so, the AQCC will consider requiring oil and gas operators to inspect their facilities for leaks, install continuous emissions monitors, and utilize pneumatic devices that do not vent natural gas.

The new law also addresses pooling oil and gas resources, authorizes administrative law judges, provides for a technical review board, and modifies some of the standards under which the COGCC will operate going forward.  The agency is directed to “regulate” oil and gas rather than “foster” its development, for example, resulting in a shifted focus in decision making.

For more information about Senate Bill 181 or any other oil and gas related issues, please contact Bob Randall, Tom Bloomfield, or Polly Jessen.

Kaplan Kirsch & Rockwell publishes Energy + Climate Change Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

Greenhouse gas emissions from transportation in the United States have remained persistently high. One cause is common low-density land use patterns that make most Americans dependent on automobiles. Reducing these emissions requires increasing density, which U.S. local government law makes difficult to achieve through the political process. This article argues that Mount Laurel, a 1975 New Jersey Supreme Court case that addressed an affordable housing crisis by restraining local parochialism, provides a potential solution. It demonstrates that a Mount Laurel-style challenge to low-density zoning is legally and normatively defensible in New Jersey and other states.

EPA Announces Per- and Polyfluoroalkyl Substances (PFAS) Action Plan

Today, the United States Environmental Protection Agency (EPA) announced and published its nationwide Per- and Polyfluoroalkyl Substances (PFAS) Action Plan.  As airport sponsors are likely aware, FAA requirements compel Part 139 sponsors to use firefighting foam that contains PFAS, but doing so can release more of the chemicals into stormwater, groundwater, and soils.  A recent FAA CertAlert provided guidance on ways to mitigate the risks of PFAS contamination at airports, but there has been no formal regulatory action by FAA yet.

The EPA Action Plan is a comprehensive document summarizing all of EPA’s prior and ongoing actions with respect to research on, education about, and regulation of PFAS.  Of particular interest to airport sponsors, EPA announced that it “has initiated the regulatory development process for listing PFOA and PFOS as CERCLA hazardous substances.”  This process is already underway, and once completed, it would give EPA additional authority “to require responsible parties to carry out and/or pay for response actions.”  In the meantime, EPA expects to continue using its CERCLA and other federal response authorities to investigate sites when needed, and to continue supporting state and local authorities in enforcement of cleanup and response actions under state law.  Former and current PFAS users should carefully monitor these developments.

EPA also noted that it intends to publish “interim cleanup recommendations” to address contaminated groundwater and that it is currently conducting research “to identify performance and costs associated with treatment and remediation approaches to address PFAS in the environment.”  Both issues are important for airports, as they will likely give some insight into EPA’s expectations and cost estimates with respect to future potential cleanup actions.  EPA expects that both this guidance and the results of the research will be published in 2019.

The Action Plan discusses a wide variety of other strategies and topics, including setting new drinking water standards for certain PFAS chemicals, conducting various research and outreach activities, and cooperating with other federal agencies (though FAA is not specifically mentioned).

For more information about the Action Plan or any other PFAS-related issues, please contact Peter Kirsch or Polly Jessen.

Kaplan Kirsch & Rockwell publishes Airport Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

New FAA Guidance on Testing Equipment Used to Deploy Firefighting Foams Containing PFAS

On January 17, 2018, the FAA issued a CertAlert to all certificated Part 139 Airports providing new guidance to assist airports seeking to manage environmental, liability, and community risks associated with certain chemicals found in airport firefighting foams.  Airports have been in a bind because Part 139 currently requires the use and periodic discharge of these foams, even though doing so can release more of the chemicals into stormwater, groundwater, and soils.  All airports should carefully examine their current and past use of these foams and take steps to manage the environmental and liability risks associated with them.

The CertAlert provides an interim way to reduce potential environmental contamination from mandatory testing of Aircraft Rescue and Firefighting (ARFF) equipment using Aqueous Film Forming Foam (AFFF), which contains a class of chemicals known as per- and polyfluoroalkyl substances (PFAS).  Presently, FAA regulations require airport operators to use firefighting foams that contain PFAS.  Although foams with PFAS are highly effective at extinguishing fires, they also have come under increasing scrutiny from the EPA and state environmental regulators over concerns about groundwater contamination and risks to public health impacts.  The FAA Reauthorization Act of 2018 requires the FAA to stop mandating the use of PFAS in firefighting foams by October 4, 2021, but the FAA has not yet identified an equally effective substitute.

The FAA’s current requirements mandate that airport operators regularly test firefighting equipment, including by discharging foam that contains PFAS onto the ground.  If not properly managed, such discharges can result in PFAS being released into groundwater.

The FAA’s new CertAlert announces that airport operators may immediately begin using three new testing systems that do not involve dispensing foam onto the ground.

The CertAlert further recommends that airport operators:

• Consider establishing standard guidelines to identify a suitable location/storage container to discharge AFFF for training and/or testing.
• Consider establishing safe and environmentally effective handling and disposal procedures during testing and re-servicing.
• Periodically visit the FAA ARFF webpage for further guidance.

Although these latest recommendations are not legally binding, airport operators should carefully evaluate implementing these recommendations as soon as possible as part of an overall plan to manage risks associated with PFAS in AFFF.  For more information, please contact Polly Jessen.

Kaplan Kirsch & Rockwell publishes Airport Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.

Colorado Governor Issues Electric Vehicle Executive Order

Newly inaugurated Governor Polis signed Executive Order B 2019 002, Supporting a Transition to Zero Emission Vehicles, on January 17, calling for extensive transportation electrification in Colorado.  As one of the first policy actions of Governor Polis’ tenure, this Executive Order complements his goal to pursue 100 percent renewable energy by 2040 to create meaningful reductions in greenhouse gas and local air pollution in the State.

ASPECTS OF THE EXECUTIVE ORDER

The Executive Order takes a multi-faceted approach to accelerate the adoption of electric vehicles and transit in Colorado.

First, it directs the Colorado Department of Public Health and the Environment to propose a Zero Emission Vehicle (ZEV) program rulemaking to the Air Quality Control Commission this spring for possible Commission adoption by October.  Although the Commission adopted a complementary Low Emission Vehicle (LEV) standard in a rulemaking last year—and has already signaled its intention to take up a ZEV rulemaking this year—the Executive Order provides additional momentum to keep the rulemaking on track.

Second, the Executive Order calls for the creation of an interagency working group to help coordinate electrification infrastructure and policy, and recommits Colorado to a 7-state initiative promoting electric vehicle infrastructure that was put into place by Governor Hickenlooper. The Order also directs the Colorado Department of Transportation to develop a plan that will align transportation investments and programs with strategies to support electric vehicle deployment and expand mobility options.

Finally, the Order revises the State’s spending plan for money obtained from the Volkswagen emissions settlement.  Whereas the money previously could be used to promote natural gas and alternative fuel vehicles, Governor Polis has directed all future spending to focus solely on supporting electrification of the transportation sector.

CLEAN TRANSPORTATION INITIATIVES IN COLORADO

Kaplan Kirsch & Rockwell’s energy and climate team engages on a variety of clean transportation and energy policy and other matters in Colorado.  Please contact Tom Bloomfield or Sarah Keane if you have any questions about this Executive Order or other clean transportation developments in Colorado.

Kaplan Kirsch & Rockwell publishes Energy + Climate Law Alerts to announce late-breaking developments in legislation, regulation, and policy for our clients and colleagues.  Nothing in our Alerts is intended as legal advice, and readers are reminded to contact legal counsel for legal advice on the matters that appear in our Alerts.