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Environmental Defense Fund v. Colorado Department of Public Health.

2022 COA 130. No. 21CA2032. Public Health and Environment—HB 19-1261—SB 19-096—Agency Rules and Regulations—Greenhouse Gas Emissions—Data Collection.

November 3, 2022

In 2019, HB 19-1261 and SB 19-096 were signed into law. These complementary bills seek to reduce statewide greenhouse gas (GHG) emissions. HB 1261, codified at CRS §§ 25-7-102 and -105, set GHG emission reduction targets and directed the Colorado Air Quality Control Commission (Commission) to promulgate rules and regulations to effectuate the goals in CRS § 25-7-102(2)(g). SB-96, codified at CRS § 25-7-140, requires the Commission to take steps to ensure that GHG-emitting entities monitor and report their emissions and to tailor such reporting requirements to fill any existing data gaps. As relevant here, CRS § 25-7-140(2)(a)(III) set a July 1, 2020, deadline for the Commission to publish a notice of proposed rulemaking for implementation of measures to allow the state to meet its GHG emission reduction goals.

On July 7, 2020, WildEarth Guardians sued the Governor and the Colorado Department of Public Health and Environment (Department), the Commission, and the Colorado Air Pollution Control Division (Division) (collectively, Agency Defendants), seeking declaratory and injunctive relief for the Agency Defendants’ purported failure to meet the July 1, 2020, deadline. The Environmental Defense Fund’s identical lawsuit was consolidated with WildEarth Guardian’s. Agency Defendants stipulated that they had not proposed rules or promulgated regulations since the passage of HB 1261 and SB 96 that would, if complied with, sufficiently meet the overarching GHG reduction goals. On cross-motions for summary judgment, the district court concluded that CRS § 25-7-140(2)(a)(III) is ambiguous and that the July 1, 2020, rulemaking requirement concerns data collection and inventory regulations rather than comprehensive rules “sufficient” to meet CRS § 25-7-102(2)(g)’s GHG emission reduction goals. Because Agency Defendants had promulgated rules that took steps to ensure more robust data collection and statewide inventory, the court determined they had satisfied CRS § 25-7-140(2)(a)(III)’s deadline, and it ruled in favor of Agency Defendants.

On appeal, plaintiffs argued that CRS § 25-7-140(2)(a)(III) is unambiguous. That section requires the Commission to publish a notice of proposed rulemaking to “implement measures” that would cost-effectively “allow the state to meet” its GHG emission reduction goals. The terms “implement measures” and “allow the state to meet” could have more than one reasonable interpretation. For example, “measures” could refer to data collection measures, emission abatement measures, or both; and “allow the state to meet” could mean rules that are either “sufficient” to meet the GHG reduction goals or that “make it possible” to meet the GHG reduction goals. Given the entire language of CRS § 25-7-140(2)(a)(III), its legislative history, and the broader statutory scheme, while the Commission is required to propose rules that implement measures related to data collection and the corresponding statewide inventories, the statute does not prevent the Commission from fulfilling these requirements in stages. Here, after HB 1261 and SB 96 were passed, Agency Defendants promulgated a rule directly related to GHG emission data reporting and collection that establishes mandatory GHG monitoring, recordkeeping, and reporting requirements for owners and operators of certain facilities. That rule further acknowledges that the Commission was undertaking its duties in two stages: first by requiring GHG emitters to monitor and report GHG emissions, and next by implementing measures to cost-effectively meet its GHG reduction goals. Enhancing the Agency Defendants’ data collection framework and statewide inventories for GHG emissions will enable the Commission to implement additional measures to cost-effectively meet the GHG reduction goals in CRS § 25-7-102(2)(g). Accordingly, these actions are consistent with the duty imposed by CRS § 25-7-140(2)(a)(III).

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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