Holding Colorado’s Governor accountable for chronically understaffing his air permitting agency

Colorado has a backlog of hundreds of pending permit applications for operating permits for “major sources” of air pollution, including the four Bonanza oil and gas production facilities involved in this lawsuit. Many of these facilities have never received an operating permit from the state and still haven’t, despite a hard deadline of 18 months for the state to approve or deny these permit applications. With Guardians first suit against Colorado over this backlog the agencies responsible for overseeing permitting (the Colorado Department of Public Health and Environment and its subsection the Air Pollution Control Division) argued to the court that these agencies were under-resourced and could not comply with the law despite their best efforts. Although the state is required by law to maintain adequate staffing for these agencies – and charge polluters appropriate fees to cover these costs – Colorado is chronically starving these agencies of the resources they need to comply with the law and protect people and the environment from harmful air pollution.

This situation is unacceptable. Judge Lyons of Weld County District Court agreed, and on March 23, 2023 granted Guardians requested relief by ordering the state to put these draft permits out for public comment by April 15, 2023, to submit the permits to EPA for its approval by June 14, 2023, and to take final action on these permits within 60 days if the EPA did not object to them. Additionally, the Judge noted that she was “troubled that this case appears to represent a larger trend of Defendants routinely exceeding the statutory deadline for approving or disapproving applications for renewable operating permits.”

Colorado does not permit the automatic recovery of attorney’s fees in successful cases against the state the way that the Federal government does. Guardians requested a fee award under a Colorado statute which allows fees to be awarded against parties who brought, maintained, or defended an action that lacked substantial justification: that was frivolous, groundless, or vexatious. Although she did not grant Guardians an award of attorney’s fees for the state’s arguably frivolous and vexatious defenses against their indefensible conduct, she warned the agencies that she was “remarkably close to concluding that Defendants defended a civil action that lacked substantial justification based on their unreasonable request for indefinite delay” and that “[s]hould the same conduct persist in the future and again be accompanied by a request for indefinite delay, the Court may not be willing to make the same finding since repeated conduct would suggest Defendants are engaged in a willful pattern of statutory violations.”

Guardians will continue this important work in holding Colorado agencies accountable for their failure to protect the public and the environment from big polluters. Until these agencies maintain adequate staffing to comply with their statutory duties, start enforcing the air pollution laws which are already on the books – and charge polluters appropriate fees to do so – Guardians will keep bringing lawsuits against them.