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State Policy News
CACI Successfully Persuades Regulators to Retain Critical Legal Protections
Yesterday, CACI joined the Colorado Air Pollution Control Division in successfully persuading the state Air Quality Control Commission to retain vital legal protections for Colorado’s industry operators under the federal Clean Air Act. CACI was a formal party to this state administrative rulemaking, and took a lead role in representing the priorities of industrial operators across a range of sectors impacted by this matter. CACI’s testimony before the Commission focused on the need to retain critical legal protections for Colorado operators that experience malfunctions resulting in excess emissions. As an issue of fundamental fairness, CACI strongly advocated that industry operators should not be punished and exposed to the risk of substantial monetary penalties when industrial machinery or electronics experience malfunctions that are beyond operators’ reasonable control.
In June, the U.S. Environmental Protection Agency took action to require states to change how their Clean Air Act regulatory programs, codified in state-specific state implementation plans (SIP), treated certain legal affirmative defense provisions pertaining to excess emissions that result from startup, shutdown, and malfunction (SSM) events. Since the EPA’s June action, the Air Pollution Control Division of the Colorado Department of Public Health and Environment led an exhaustive stakeholder process aimed at crafting a Colorado-developed response to the EPA action. CACI actively engaged in this process, working with impacted members, the Division, and other vested stakeholders to consider numerous draft proposals and provide feedback that ultimately aided the Division’s efforts to fully develop the proposal. This robust stakeholder process succeeded in creating carefully crafted revisions to the Common Provisions Regulations that are contained in Colorado’s Clean Air Act SIP. The proposal responds directly to the legal basis of the EPA’s actions while retaining references to the affirmative defenses available to industrial operators in Colorado that experience excess emissions that result from SSM events that are beyond their reasonable control.
CACI Energy & Environment Council Chair, John Jacus, a leading environmental and natural resources attorney and partner at Davis, Graham, & Stubbs, LLP, led the CACI coalition effort with support from Adam Berig, CACI Air Quality Committee Chair and Air Permitting Manager at Encana Services Company. The CACI coalition included Colorado Utilities Coalition (CUC), represented by Jim Sanderson of Ryley, Carlock, & Applewhite, and the Colorado Petroleum Association and its president Stan Dempsey. The CUC and CPA were also formal parties to the administrative rulemaking process.
The decision of the Colorado Air Quality Control Commission to retain the legal affirmative defenses in Colorado’s response to the EPA’s June order represents a significant win for Colorado’s business community. The provisions not only provide effective environmental protections but also retain critical legal protections for operators that experience excess emissions beyond their normal permitting limits through no fault of their own due to SSM events such as unforeseeable and unpreventable malfunctions in industrial machinery. As an issue of fundamental fairness, CACI advocated that where there is no misconduct or lack of regular maintenance that leads to a malfunction resulting in excess emissions, that malfunction should not serve as the basis for imposing stiff legal and civil penalties, including large fines and attorneys’ fees.
CACI’s work to support the Colorado Air Pollution Division’s proposal was instrumental to the passage of the measure. The measure attracted strong criticism from the environmental advocacy organization, Sierra Club, and garnered concerns from the Region 8 office of the EPA in a strongly worded comment letter the EPA issued to the Commission just one week prior to its consideration of the matter. Furthermore, because Colorado is the first state to adopt revisions to its Clean Air Act regulatory program, Colorado’s newly adopted revisions to its Clean Air Act regulatory program could become yet another example of Colorado’s national significance as a leading trend setter of state approaches to environmental protection law and policy.
CACI is extremely appreciative of John Jacus and the leadership and legal counsel he provided throughout this administrative rulemaking process. CACI also extends its thanks to Adam Berig for providing his technical expertise and leadership as Air Quality Committee Chair, and to the numerous engaged CACI members that provided support and expertise to CACI’s efforts over the last six months leading to this successful outcome.
Amendment 69: the Organizations, People and Money behind ColoradoCare
The most visible person behind Amendment 69 is undoubtedly Colorado State Senator Irene Aguilar (D-Denver), the physician who sponsored a bill in the 2015 legislative session to create a single-payer health-care system in Colorado. The bill died. CACI opposed the measure.
Organizations Backing Amendment 69
In March, an issue committee named ColoradoCareYes was filed with the Colorado Secretary of State’s office. This will be the main campaign vehicle advocating for the passage of Amendment 69.
It appears that there are two organizations that have laid the groundwork for Amendment 69 and are coordinating support for ColoradoCareYes:
Co-operate Colorado, an IRS 501(c)(4) organization, transferred $39,000 to ColoradoCareYes. Co-operate Colorado, formed in May 2012, “educates Coloradans about the health care crisis, brings Coloradans together to work for solutions, and advances principles, policies and structures that establish universal and equitable access to affordable, quality health care for all Coloradans.” As a 501(c)(4), the organization does not have to disclose its contributions.
Colorado Foundation for Universal Health Care, an IRS 501(c)(3) organization, whose mission is to conduct “research on and educate the public about universal health care in Colorado.” It will spend 20 percent of its expenditures on advocating for ColoradoCareYes as allowed by IRS rules.
The Money behind ColoradoCareYes
The October 15th filing of ColoradoCareYes listed contributions of about $33,000, expenditures of just over $261,000, and balance of almost $69,000.
Co-operate Colorado transferred $39,000 to ColoradoCareYes because, as a 501(c)(4) organization, it cannot advocate for Amendment 69 once the initiative had qualified for the ballot.
Here are the major, individual contributors:
- $122,000, Lyn Gullette, Louisville, a psychologist;
- $69,880, Ivan Miller, Boulder, a psychologist;
- $34,650, Ralph Ogden, Denver, a retired attorney;
- $23,025, Eliza Carney, Fort Collins, retired;
- $21,059, David Beckwith, Westminster, retired;
- $10,000, Katherine Kohnen, Fort Collins, retired; and
- $8,125, Dr. Mark Matthews, Littleton, Kaiser Permanente.
Beckwith, Carney, Ogden and Miller are, or were, members of the Board of Co-operate Colorado and Gullette was the executive director. Beckwith is the registered agent for ColoradoCareYes with the Secretary of State’s Office.
Perhaps the most interesting contributor, however, is T.R Reid, the noted journalist who wrote “The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care,” which was published in 2009.
Reid contributed $2,200 to ColoradoCareYes. He also penned an op-ed, “ColoradoCare is health care for everyone,” that ran in early November in The Denver Post. Reid is the chairman of the Colorado Foundation for Universal Health Care.
Paying for Gathering Signatures
To gather signatures to qualify a proposed ballot initiative takes money. Specifically, at least 98,492 valid signatures are needed to place a ballot initiative on the November 2016 ballot. This represents 5 percent of the votes cast in the last statewide race for Secretary of State.
To that apparent end, ColoradoCareYes paid Kennedy Enterprises LLC, which is located in Colorado Springs, $183,142.88 from July 31st to September 25th. The company describes itself as “a marketing and consulting firm that has a proven methodology that gets results.”
ColoradoCareYes submitted 158,831 signatures. Based on a 5 percent sample, the Secretary of State’s Office calculated that 110.8 percent of the needed signatures were valid, thus qualifying the measure for the ballot.
For more information on Amendment 69, read:
“Godzilla of All Colorado Ballot Initiatives: $25 Billion Universal Health Care Measure Qualifies for 2016 Ballot,” CACI Colorado Capitol Report, November 13th.
You Are Invited to “CACI 101” Luncheon at 11:30 a.m., Tuesday, December 8th
Have you ever wondered what CACI Councils are like, but were afraid to ask? Are you thinking there might be more advantages and opportunities at CACI that you have yet to discover? Then you should attend our “CACI 101 Luncheon” at the CACI Office.
Come and meet our new members and find out how to get the most out of your dues investment. The agenda will include meeting the CACI staff, events overview, membership overview, legislative indications for 2016, Policy Council Chairs review and, if we have time, a mock Policy Council meeting!