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In Colorado Just Another Environmental Whitewash for the Polis Administration

Last March 30th was a bad air day along Colorado’s heavily populated northern front range. Indeed most days are bad air days for the people living here. It also happens that on this day three employees, Rosendo Majano, DeVondria Reynolds, and Bradley Rink, from the Colorado Air Pollution Control Division went to the United States EPA’s Inspector General with a whistleblower’s complaint against their boss, Division Chief Garry Kaufman. He is one of a growing stable of misfits, malingerers, can kickers, and incompetents Governor Jared Polis has employed to oversee the state’s deteriorating air quality. The Polis crowd keeps telling us our air quality is getting better. The ever-increasing number of stay-in-doors-days tells us the opposite.

Up till now, the Polis administration, allied with the oil industry as a silent partner, has been somewhat successful in confounding the true causes of our air quality problems. They initiated a fairly successful trope claiming the source of our miserable air quality was the massive fires on the west coast. It was California’s fault. But the actions of these courageous three, who incidentally comprise the entire air-quality modeling branch for the APCD, may have turned the tables on this flimsy political contrivance.

First of all Polis’s repeated claim that California is responsible is a laugher. Colorado’s front range has had air quality problems for decades. They didn’t start with the wildfires on the west coast, though those certainly haven’t helped. Neither, with a radically heating planet, are these fires likely to diminish. Hidden in the soot from the west coast fires is the fact that the state and the oil industry admitted in 2013 that most of the volatile organic compounds, VOCs, come from oil activities centered in Weld County. Colorado’s fracking activity and oil production is centered in that county. Ozone, formed through the chemistry of VOCs reacting with sunlight, which in Colorado is also abundant, is recognized as a primary cause of asthma in children and a dangerous health threat to all people with lung and heart disease. Ozone pollution is the primary reason Colorado is under threat of going from serious to severe noncompliance with the federal Clean Air Act. Severe is exceeded only by extreme in the CAA’s hierarchy of risks. Soot from forest fires near and far is simply icing.

It was Polis’s predecessor, Governor Hickenlooper, now a U.S. Senator, who with the oil industry in tow made the VOC pollution announcement in the rotunda of the state capital. Hickenlooper, another erstwhile CEO like Polis, said he saw the state not as a regulator, but as a business partner with the oil industry, and that together they would do better for the people of this state. Given the evidence, this cozy lash up between government and the oil industry has not changed in nearly 16 years of continuous Democratic administrations. Only our air quality has changed, and for the worse.

It is with this necessary background that we return to the 3 whistleblowers. Assisted by PEER (Public Employees for Environmental Responsibility), which has long provided essential legal help and advice to federal and state environmental whistleblowers, they laid out for EPA’s Inspector General how they’d been directed to issue “illegal pollution permits, ignore violations, and refrain from verifying pollution emissions.” Central to their complaint is the fact that Director Kaufmann had told them to stop modeling so-called minor polluters. It so happens that most individual oil and gas facilities in this state come under the federal designation of minor. But we also know from Hickenlooper’s soiree with oil industry leaders in the capitol rotunda in 2013 is that most of the state’s VOCs come from oil and gas activities in Weld County. Benzene is a VOC and a ubiquitous component in oil and gas production. The World Health Organization says it is unsafe for humans at any level. It is rarely measured individually in this state.

We don’t know how many pollution permits the APCD has issued since Polis became governor, though it has said that in the decade between 2009 and 2019 it issued roughly 49,000 for minor polluters and 6 for major polluters.

We do know that one of the largest polluters in the state, the Suncor Refinery located just north east of downtown Denver, has 2 major pollution permits, both of which are long expired, one for over a decade.   The Denver Post’s environmental reporter Bruce Finley, who broke the story, compared Suncor’s expired permits to driving around town for 10 years without a driver’s license. Director Kaufman, ever insouciant, breezily attributed the Suncor embarrassment to understaffing and a backlogged workload.   Finley has since been transferred to the Post’s education beat.

We also know that over 4000 new well permits have been issued since Polis took office, and that uncounted miles of pipelines have been laid, with numerous new storage, processing, and transport facilities constructed. All of them leak. All of them increase VOC pollution. All of them require permits. But given the managerial flaccidity at the Air Pollution Control Division, no attempt has been made to assess their actual impact, not individually, not cumulatively, on the Front Range’s air quality problems.

So why has Polis ignored what every earnest six year old in Colorado might reason is the key to controlling Colorado’s runaway ozone problem? The surest answer is that Polis like his predecessors continues to allow the industry to regulate itself. It’s been said that self-regulation has about the same relationship to regulation as self-importance has to importance. In the capitalist system self-interest almost always trumps the public interest. This is especially so if you have a confirmed libertarian running the ship of state. Polis is reported saying he thinks the market will ultimately decide the fate of the oil industry. The role of government is apparently only honorary.

Add to this that individual VOCs such as benzene are difficult and expensive to measure, and would increase costs to the fracking industry, an industry that has been bathed in red ink from its inception. True the frackers generate a lot of cash flow, but that money has never been enough to cover their operating costs, not even when oil was $100 a barrel. The end result is that public health and the environment have always been sacrificed at least in part to the industry’s bottom line. It’s called balance and is expressed best in Senator Hickenlooper’s neoliberal notion that government and the industry need not be adversaries, but partners.

Now, enter stage left the state’s Attorney General, Philip Weiser. He rode to office with Polis and a clear Democratic majority in the 2018 election. He’d worked in the Obama Justice Department. It was there that Obama’s punitive policy toward federal whistleblowers was developed. On the campaign trail, he promised to be a “lion for the people.” Mostly he resembles Bert Lahr’s Cowardly Lion, but without the charm or innocence, and is reliably late to the state’s oil and gas fights. But not this time.

As the state’s lawyer, Weiser was quick to say he would investigate the whistleblower charges independent of the EPA. His declaration to investigate was strengthened by Jill Hunsaker Ryan, the Director of Colorado’s Department of Public Health and the Environment, CDPHE. She too wanted an independent investigation. Kaufman’s division is within her department.

Her reputation had suffered in the early days of the pandemic as many senior scientific and medical staff left the CDPHE.   She was not helped by her agency’s inability to ramp up testing for COVID, leaving Colorado near the top of western states for COVID related deaths and near the bottom in testing. Polis, his entrepreneurial spirit at the ready, had, through a venture capitalist friend, contacted a former CEO of an email marketing company in New York City for help in overcoming Ryan’s COVID problems. Apparently, tycoons have a sixth sense about problem solving. Taking no money, he came, he saw, and emailed a friend that “I don’t know what the f— I’m doing. Fortunately, I never have, and that’s usually OK.” A few tycoons, it seems, have a well-developed sense of the absurd.

Attorney General Weiser took a similar approach to investigating the whistleblower charges. He avoided seeking local help from sources such as the state’s two well-regarded law schools or any number of retired judges he might have asked to investigate the whistleblower allegations. Instead he went to Atlanta, Georgia, and hired one of the largest corporate law firms in the world, Troutman Pepper. They proclaim their business to be “Environmental Litigation and Enforcement Defense.” If translation is needed, it means their business is defending corporate polluters.

Troutman Pepper in their original meeting with the whistleblowers, and while acting as the state’s official lawyer, wanted them to agree that all testimony would remain confidential. To this the whistleblowers refused. AG Weiser had apparently failed to brief them on Colorado’s transparency and open-records laws.

A couple of weeks ago, well after their embarrassingly maladroit howdy-do with the three whistleblowers, the Atlanta law firm released its 50-page report. It is a mighty thunder mug of tortured language and logic.

For instance, they conclude that while Director Kaufman was guilty of a “potential” conflict of interest, he was also not guilty on a technicality. It is true, say they, that while working as a corporate lawyer for Holland and Hart he represented the massive open pit CC&V gold mine near Colorado Springs, and that while in that capacity lobbied APCD staff hard for a new pollution permit so that the mine could expand. The mine is owned by the Greenwood Village based Newmont Mining Company, the largest gold mining company in the world. It is also true, say they, that he had worked on the gold mine permit while employed as Deputy Director at APCD before resigning and going to Holland and Hart. It is also true, say they, that when he returned to the APCD as director 2 years later he interceded directly in getting the mining company its permit with falsified data. These actions the Atlanta lawyers admit create the “potential” for a conflict of interest, but since he was taken off the permit before it was issued the conflict might be a mere peccadillo. They fail to mention that the reason he was taken off the permit was because PEER lawyers reported him to John Putnam, the CDPHE’s deputy director who has since gone to work for the Biden administration. They mention that neither did he take any money from the mining company or Holland and Hart—no payola was involved. This apparently burnishes his reputation in their minds.

Thus, they leave to heaven the answer to the riddle of why then? They also leave unanswered what harm this exception, which he and his senior staff were quick to assure the subject specialists would never happen again, could have on the people living near the mine, many of whom were already complaining of orange tinged clouds coming from the gold mining operation.

Though Director Kaufman also falsified his state-mandated, annual no-conflict-of-interest certification on the above matter for two years running, the boys from Atlanta reason there was really no damage since he corrected his declaration in the third year. Here again they fail to mention that he came clean only after PEER reported him to John Putnam. Falsification in this instance is a Class II misdemeanor in Colorado. It carries a penalty of from 3 to 12 months in jail and a fine of up to $1000 for each offense.

They also agree that Kaufman and his senior staff broke federal law, but they give great weight to Kaufman’s declaration that he meant no ill intent, that he did not intend to break any laws. Here is an example of the tortured logic that allows them to accept Kaufman’s excuse for his actions: “…APCD’s decision… was contrary to law, (but) no evidence has been identified that would suggest that the APCD managers intended to violate the law. While their analysis of the law was incorrect, their actions were understandable…” So, let me parse this for you. What they’ve said is that if you act “contrary to law” that is not “violating the law” provided you’re not smart enough to understand the law. If you like getting cuffed, try that argument the next time you get a speeding ticket—“Yes officer, I was driving contrary to law, but I wasn’t violating the law because I don’t understand the law.”

But the big-ticket item in the Troutman Pepper review of the whistleblower report is the decision by Kaufman and Robyn Wille to do away with pollution modeling all together for so-called small emitters. Wille is another lawyer lately spirited away from Weiser’s office to become the APCD’s head of strategic planning and development.

As the report relates the APCD just had to many pollution permits to get out the door. Slowing down permitting to protect the public was not an option. That’s not the way partnering is done. What this policy decision meant was that all oil and gas pollution permits would not be modeled even though Kaufman and associates knew or should have known that pollution from the fossil fuel industry was the major contributor to the state’s air quality problems and that modeling was required under EPA guidelines.

After endless pages of legal dipsy doodle, the reading of which is roughly analogous to drawing a camel through the eye of a needle, Troutman lawyers reasoned that while the APCD had defied the requirements of the CAA by not requiring modeling in a non attainment area, as Colorado’s Northern Front Range has been for over a decade, it was really the EPA’s fault. They should have given the state better guidance. In defense of her department and Kaufman, Jill Ryan has repeated this absurd confection to the press.

This is the stated purpose of the Clean Air Act: “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b)(1).

How much more guidance should highly paid public servants and licensed lawyers need if they took the declared purpose of the CAA as foundational for the Air Pollution Control Division’s day-to-day activities? When you add to this that EPA’s modeling requirements in areas with serious air quality problems are quite clear and that the expert modelers in the division had advised their managers on more than one occasion on what must done to comply with those requirements–all of which they ignored–you start to get something some would say resembles a criminal enterprise.

Quite simply, the 3 whistleblower’s charges are founded on their belief that science and laws such as the CAA are to be taken seriously. As PEER and the whistleblowers lay out in the 15-page complaint for the IG, one primary concern for all of them was a “moral” belief that they were being asked to break a public trust. Immediate supervisors Gordon Pierce and Emmett Malone didn’t get that message. Neither it seems did AG Weiser’s highly paid sleuths from Atlanta. Thus, we shouldn’t be surprised to find they didn’t interview any of the former employees who came forward to validate the whistleblowers assertions concerning the regulatory climate within the APCD.

But the foregoing is not the whole story. You see the CAA has a severe limitation, despite its stated intent. It requires a test for economic feasibility for any CAA enforcement requirement. That is to say, you can’t ask a polluter to control his pollution if it is economically impossible for him to do so. Of course, this does not mean that government could not delay or deny new pollution permits in on effort to protect “public health and welfare.” Partnering with the polluter makes that hard to do however as we’ve seen.

A state law passed in 2019, SB 181 turns the tables on the CAA conundrum. It states simply that public health and the environment must be protected as a condition for any new or continued oil and gas activity. The state must, without exception, protect the people and the environment. There is no limiting caveat about economics. It also goes without saying that you can’t protect if you make no attempt to understand and measure the potential air quality impacts of a proposed or existing industrial activity. Despite the fact this law was written in direct response to wide spread public alarm over the oil industry’s fracking invasion into residential and municipal space, the foregoing discussion demonstrates how SB 181 has been systematically repealed by the Polis administration through can kicking and deception.

In fact, Kaufman has told citizen activists that the requirements of SB 181 apply to the Colorado Oil and Gas Commission more than they apply to the APCD. As the Environmental Director for a small grassroots group in Colorado, I asked twice for the legal opinion that allowed him to make such a wild claim. Clearly, if the law does not apply to all equally you have a bad joke, not a law. He has never replied even though we asked the commission that oversees his operations to intercede. Similarly we asked AG Weiser his opinion on SB 181’s applicability to all offices of government in Colorado. Here again we have asked twice over the past year and a half–once by certified mail, and once in person. He apologized, blaming the mail. We are still waiting.

Polis has given himself much credit for the bloodless implementation of SB 181, but his self-congratulatory pronouncements are mostly a PR confection designed to deceive as he and Phil Weiser concentrate on their reelection. The Troutman Pepper white wash is merely the latest confection in the long deception.

The Nobel laureate Joseph Steiglitz has observed that you can’t imagine the damage government can do when it decides not to regulate. To this every sentient being in Colorado would reply: yes we can, we live it.

Coda

Only days after Weiser’s report from the Georgia lawyers was released, the state issued another report on Green House Gas emissions in the state. It too was a white wash. It claimed that about 17 percent of the GHGs in the state come from oil and gas production. This too is a confection based on an outdated calculation that methane’s heat storing capacity is only 25 times greater than CO2s. This is only true if its heat trapping capacity is calculated over a 100- year time span. Methane dissipates in the atmosphere in 10 to 12 years, but in that time frame its heat trapping capacity is at least 86 times greater than CO2s. This is a supremely important distinction because the scientific consensus is that if we don’t get our GHG emissions under control in the next 8 to 10 years game-over as far as controlling climate disruptions.

Add to this, that it is also the scientific consensus that the decades old modeling formulas used in estimating actual GHG releases from oil and gas facilities under reports the actual releases by at least a factor of 3. Thus if the state were to use the best science, oil and gas would actually be responsible for over 50 percent of the state’s GHGs, not 17 percent.

Here again every energetic 6 year old in the state would surely reason that if GHGs from the oil and gas industry constitute our greatest manmade contribution to the unfolding climate crisis we should be concentrating our efforts in limiting emissions from that source. But it gets worse, the state in its official projections, called its Climate Road Map, accepts that oil and gas production will increase by 30 percent over next few years. Add to this that the state by another law passed in 2019, HB 1261, has a legal obligation to reduce GHGs by 30 percent in 2026 and by 50 percent in 2030. Some estimates have the current reductions at a measly 2 percent. Others would argue there has been no reduction at all. Everyone paying an ounce of attention has asked how can you reduce GHGs by 30 percent if at the same time you allow the oil industry to increase production by 30 percent?

As I was finishing this piece, it was announced that Garry Kaufman would no longer be the APCD Division Chief, that he was being bumped upstairs to take over the newly created position of Deputy Director for Regulatory Affairs for Jill Ryan’s department. It is indeed important after a major white wash that a little touching up be done around the edges.