Advocating strategies for reducing greenhouse gas emissions to a level supportive of a livable climate.

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Statement Regarding Concerns About Certain Emerging Technologies

Posted on May 5th, 2023

Summary

As Colorado seeks to address the climate challenges of our time, we appreciate efforts to adopt solutions that positively impact our state. However, we have serious concerns surrounding several of the “emerging” technologies being promoted; in particular, carbon capture and sequestration, direct air capture, hydrogen, and nuclear. We are troubled by the lack of risk-analysis, cost-analysis, and impact-analysis being done in these sectors. We are also concerned that the pursuit and/or adoption of these technologies may further delay action to reduce emissions by redirecting resources and investment away from viable solutions that already exist, such as wind, solar, conservation, and stable energy-storage. We ask for a more rigorous evaluation of emerging technologies than has been presented so far, and for careful re-consideration before pursuing them further.


Carbon Management 

We are concerned that “novel” carbon management methods such as Direct Air Capture and Carbon Capture are unlikely to achieve meaningful CO2 reduction at the levels needed to meet our future climate goals. Currently these strategies are prohibitively expensive and unproven on a widely deployed scale. Even if backed by substantial funding, effective implementation would require decades of research and development – a luxury we do not have. Furthermore, we are concerned that novel carbon management strategies could extend the life cycle of the fossil fuel industry by continuing dependence on oil and gas rather than phasing them out. We ask for climate mitigation efforts focused on stopping the production and consumption of fossil fuels, while also promoting growth in “conventional” carbon dioxide removal methods such as reforestation, ecosystem restoration and agroforestry.

Hydrogen 

Our findings indicate Colorado should only put resources toward green hydrogen, which is produced by splitting the water molecule and uses 100% renewable energy. Blue hydrogen is produced from methane and creates more GHG emissions per unit of energy than burning coal, diesel, or fossil gas. The federal definition of “clean” hydrogen includes blue hydrogen, as does Colorado’s hydrogen roadmap, hydrogen hub and HB23-1281. Hydrogen produced from methane pollutes communities, perpetuates fossil fuel extraction, and increases GHG emissions. Even green hydrogen should be used sparingly. It is inefficient, costly and unsafe in sectors such as vehicles, building heating, and power generation. Hydrogen is only economical in difficult to decarbonize sectors such as maritime shipping, aviation and industrial processes. In developing technological solutions, Colorado should pursue green hydrogen as defined by the International Energy Agency, and should not continue to include blue hydrogen in its energy roadmap or future legislation.

Nuclear

While proponents of nuclear energy claim that it is a clean and carbon-free energy source, research indicates otherwise. The development of nuclear reactors and the mining of raw materials like uranium are highly carbon intensive. The generation of nuclear power creates dangerous waste that remains radioactive for thousands of years, and no sustainable solutions exist for long term storage. Nuclear power plants also pose grave risks to surrounding communities because damage from natural or human related accidents would be catastrophic. Nuclear power is the most water-intensive form of power generation. A single 300 megawatt plant requires hundreds of millions of gallons of water per day. Nuclear power is not competitive in cost or time of deployment, and “advanced nuclear plants,” including Small Modular Reactors, are so far an unproven technology. Marginalized communities surrounding nuclear power plants have been linked to higher rates of cancer, and historically bear a disproportionate burden of the environmental and health impacts of uranium mining.  

Carbon Management

Overview: Carbon Management refers to a suite of emerging technologies that aim to reduce carbon emissions by developing financially and environmentally sustainable mitigation strategies. While there is a place for carbon management in the IPCC Assessment’s plan for addressing climate change, it is important to highlight that these technologies provide widely variable advantages and disadvantages. We give an overview of some of the most frequently discussed carbon management technologies here, while also highlighting some of our concerns.

Carbon Dioxide Removal

The 2023 IPCC AR6 Synthesis Report states that negative emissions will be necessary in order to keep warming under 1.5°C. Carbon Dioxide Removal (CDR), both in its “conventional” and “novel” forms, will be required to meet this goal, especially to counterbalance hard to abate emissions in aviation, shipping and industry. Even so, it must be stressed that no form of CDR, even at scale, will allow us to meet our climate goals without timely and aggressive cuts to GHG emissions. CDR should not be viewed as a “free pass” to continue burning fossil fuels at current (or increasing) levels.

Novel CDR includes means such as Direct Air Capture (DAC), biochar, and enhanced rock weathering. DAC has received much of the focus in this sector, although it still lacks sufficient attention in scientific literature. DAC involves pulling CO2 directly from the air and then sequestering it in geological formations or reusing it. Currently, novel CDR provides less than .002 GT/CO2e per year reduction.

  • DAC is extremely expensive. Cost estimates vary widely – between $250-600 per ton of CO2 captured. Even after extensive research and development, research indicates the cost is unlikely to fall below ~ $100 per ton of CO2 captured. To reach the IPCC’s minimum recommendation of removing 2 Gigatons/CO2e per year, at the current minimum cost of $250 per ton, a 500 billion dollar annual investment would be required. 
  • Even with significant support, DAC will take several decades to be environmentally viable at the scale needed. DAC would need to increase efficiency and scale up in size at a rate of 10,000 times current levels by 2030 to fit into GHG reduction goals. 
  • Separating CO2 from the air is an energy intensive process, requiring 1200 kilowatt hours per ton of CO2. If DAC activities are powered by fossil fuels, the process holds little value due to the reintroduction of GHGs. 

Although some novel CDR technologies are promising, we do not agree with the current push for increased implementation of DAC. DAC lacks effectiveness and the long term viability needed to be a significant part of our GHG reduction goals. Investing large amounts of energy and financial capital into DAC is likely to prove unwise given the landscape of more accessible solutions and the dwindling window of opportunity for decreasing emissions.

Conventional CDR includes removing carbon through “natural” methods such as coastal ecosystem restoration, reforestation, agroforestry and soil carbon sequestration, all of which also enhance biodiversity and ecosystem functions. We advocate for additional research and legislation focussed on conventional methods of CDR. 

  • “There is substantial mitigation and adaptation potential from options in agriculture, forestry and other land use… that could be upscaled in the near term across most regions (high confidence). Conservation, improved management, and restoration of forests and other ecosystems offer the largest share of economic mitigation potential…”(2023 IPCC report). 
  • Conventional CDR methods also increase and enhance ecosystem services like local air quality improvements, opportunities for recreation, and health of the local ecosystems. It is estimated that additions to ecosystem services could add over $30 trillion dollars per year to the global economy.
  • Ecosystem services also correlate with social benefits like therapeutic services, spiritual connections, and social satisfaction. 
  • Conventional CDR currently provides the removal of 2 Gigatons/CO2e per year.

Carbon Capture and Sequestration (CCS)

CCS aims to reduce carbon emissions by capturing them, mainly from industrial facilities and power plants, while redirecting them from entering the atmosphere. CCS has become a frequent topic of discussion as a possible tool for meeting greenhouse gas reduction targets and mitigating the effects of climate change. In 2022, the federal Inflation Reduction Act earmarked billions of dollars of funding for CCS by incentivizing these technologies through the introduction of sizable tax credits.

Before moving forward with CCS, we believe the following factors should be considered:

Summary:
Although carbon management technologies appear to align with the wider goal of addressing climate change, this growing field is rife with unknowns. DAC and CCS are decades away from wide scale implementation, and their ability to effectively limit carbon emissions is a point of concern. Moving forward with these strategies would include deferring much needed resources from areas such as solar and wind infrastructure, building out electric power distribution systems, scaling up transportation charging networks, enhancing innovations in rechargeable battery technologies, and increasing energy efficient housing. Moving forward with the implementation of DAC and CCS risks extending the lifespan of the fossil fuel industry – a move that puts us in grave risk of not meeting our climate targets.

Further recommended reading on carbon management


Hydrogen

Background

Oil and gas companies, along with utilities that are fossil fuel intensive, created the “Clean Hydrogen Future Coalition” in 2021, urging the Biden administration to increase policy support for a wide range of hydrogen uses. Gas companies are testing the use of hydrogen blended with natural gas. Colorado has a Hydrogen Roadmap for development of hydrogen in Colorado and is involved in planning for a regional hydrogen hub. It is time to take a closer look at the long term implications of hydrogen.

Summary

Depending on how it is produced, hydrogen may have some promise in the future in reducing emissions from hard to decarbonize sectors. However, currently at least 99% of the hydrogen being produced actually increases greenhouse gas emissions. The development of “green” hydrogen is in its early stages and still extremely expensive. For all but the most difficult to decarbonize sectors, solar and wind power are more fitting energy sources. Hydrogen is not a good replacement for fossil gas in home use or in generating electricity; it would increase cost and safety concerns while decreasing efficiency.

The facts about hydrogen:

Colorado’s “Low-Carbon Hydrogen Roadmap” recommends pilot projects to blend hydrogen in existing infrastructure to streamline the permitting processes. Developing pilot projects that burn hydrogen for power generation in existing gas turbines and use Colorado’s existing gas storage facilities creates serious public health and safety concerns due to Hydrogen’s chemical composition. This Roadmap is largely for the development and use of “blue” hydrogen, since “green” hydrogen is still too expensive. We believe these factors warrant further consideration before Colorado continues to expand hydrogen production and infrastructure.

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With thanks to Susan Saadat and Sara Gerson, the authors of the report Reclaiming Hydrogen for a Renewable Future, from Earthjustice’s Right to Zero campaign. Many of the facts and studies cited above come from this report. 


Nuclear Power and Small Modular Reactors

Background: 

Nuclear energy is frequently touted by industry advocates as a low-carbon energy source to transition away from fossil fuels. While nuclear proponents have claimed that nuclear power is an attractive energy alternative for coal-transitioning communities such as Pueblo, Moffatt and Routt counties, nuclear proposals have received a great deal of backlash from frontline communities. In 1979, Colorado experienced its first failed attempt at nuclear, with the Fort St. Vrain power plant. Fort St. Vrain was so fraught with operational problems that it had to be shut down after a decade to cut financial losses. Over 14 tons of toxic waste are still being stored at that plant 33 years later. In Pueblo, there is a strong community-led effort to halt proposals to replace the “Comanche 3” coal plant with twelve NuScale Small Modular Nuclear Reactors (SMRs). In 2011, a similar attempt to bring nuclear power to Pueblo was rejected due to community concerns in wake of the Fukushima-Daiichi disaster. 


We believe Colorado’s troubled history with nuclear power, in addition to the concerns outlined below, should be considered before policymakers pursue experimental nuclear technology for Colorado’s coal-transitioning communities. 

Overview of Our Concerns Regarding Nuclear Power and Small Modular Reactors: 

Colorado Should Honor its Legacy as a Place of Healing

Published in Colorado Newsline on May 2nd, 2023

Frances Wisebart Jacobs, a late 19th-century civic leader, is the only woman among the 16 Coloradans memorialized in stained glass on the walls of the Colorado State Capitol rotunda.

Jacobs’ legacy includes bringing free kindergarten to Denver and co-founding the organization that would ultimately become the United Way. She was also the driving force behind National Jewish Hospital, a tuberculosis sanatorium that provided free care for desperate consumptives who came to Colorado to enjoy the healing benefits of clean mountain air. In the late 19th and early 20th centuries, tuberculosis was a leading killer, particularly among the urban poor. Historian Jeanne Abrams notes that “no single accepted standard for tuberculosis treatment prevailed in the early years, but by 1880 medical opinion emphasized fresh air for respiratory ailments. Colorado, with its dry and sunny climate, drew tuberculosis victims like a magnet.” A 1925 report found that 60% of Colorado’s population had arrived, either directly or indirectly, to receive tuberculosis care. 

In light of the history of people coming to Colorado to heal from its clean air, our current status as one of the worst metro regions in the country when it comes to ozone pollution is shameful. Our ozone problems have been so bad that in April 2022, the EPA downgraded the Front Range from serious to severe non-attainment of federal air quality standards.

Breathing ground-level ozone is known to cause and worsen a variety of respiratory problems including chest pain, coughing, bronchitis, emphysema and asthma. Poor air quality disproportionately impacts low-income communities and communities of color, leading to increased health risks, higher health care costs, and missed school days. It is a sad irony that a state that once attracted people seeking healthful, clean air now suffers from polluted air that is sickening its citizens. 

We know that oil and gas operations are the largest source of emissions of ozone precursors. House Bill 23-1294, called Pollution Protection Measures, will enhance permit enforcement. It also includes a definition of “cumulative impacts,” a critically important step for future reform.

Key legislative allies introduced a significantly stronger bill that would have created a clean air future for Colorado. Strident opposition from the oil and gas industry and a lack of commitment from the administration of Gov. Jared Polis to advance bold measures stripped the bill of most of its key provisions. This means that frontline communities will have to continue waiting for relief. And yet, the provisions that remain are important first steps for addressing our ozone pollution problem. The creation of an interim committee, as the bill would do, is one of those steps.

Until last week, the history lesson I shared above was an abstract reminder that we should honor our history as a destination for healing. For us at Colorado Jewish Climate Action, the memory of increased risk suffered by the working poor in the late 19th and early 20th centuries serves as a reminder of our current responsibility to fight for environmental justice.

And then my child had a severe asthma attack and was briefly admitted to the ICU. My family received a stark reminder that while disproportionately impacted communities are most at risk from ozone pollution, this problem harms us all.

Moving forward, my wife and I need to be on guard during those all too frequent summer days when dangerously high ozone levels are a hazard for sensitive groups, including those with asthma. This health scare redoubled my commitment to solving Colorado’s ozone pollution problem. In that spirit, I urge our state representatives to look up at the figures memorialized in the Capitol rotunda and honor Colorado’s legacy as a refuge of healing by committing themselves to continuing the fight for clean, healthful air.

Moshe Kornfeld is the director of Colorado Jewish Climate Action.

Ensure that PERA Fossil Fuel Sections Remain in Senate Bill 23-016!

SB23-016, a bill to reduce greenhouse gas emissions in Colorado, has two sections regarding PERA’s fossil fuel investments, one of which is in danger of being amended out in a Senate Finance Committee Hearing on Tuesday, 2/21. Section 2 of the bill would require the PERA board to adopt proxy voting procedures to ensure that PERA’s shareholder votes in the companies they invest in align with and support statewide greenhouse gas emission reduction goals. Section 3 requires PERA to publicly report a description of climate-related investment risks, impacts, and strategies.

We have three urgent action alerts to ensure that the PERA fossil fuel sections remain in Senate Bill 23-016! Please take action to help pass legislation that ensures PERA is held accountable for its role in financing the climate crisis! 

If you are a PERA member, your voice is especially powerful on this issue – please make note of your PERA membership when taking any of the following 3 actions:

1) Please take 30 seconds to send a letter to members of the Senate Finance Committee, urging them to keep the PERA fossil fuel sections in SB23-016 during next week’s committee hearing!

Click Here to send your letter!

PERA’s leadership has been actively working to get Section 2 removed, and have recently sent out a form letter to PERA members, telling them to urge the Senate Finance Committee to remove PERA from the bill. In the lead-up to next Tuesday’s Senate Finance hearing, we need committee members to hear from constituents loud and clear: PERA must be held accountable for their role in financing the climate crisis. 

If you are a PERA member, please make note of your PERA membership in your letter.

We encourage you to personalize the letter, but feel free to submit the letter as-is.

2) Please sign up to testify at the Senate Finance Committee Hearing on Tuesday, February 21st, and urge the committee to keep the PERA sections in the bill! 

You can testify remotely via Zoom, in-person at the Denver Capitol, or via written testimony. This Factsheet and Testimony Toolkithas talking points and instructions to register to testify.  Please note that comments to the Senate Finance Committee should focus on the PERA provisions of the bill only.

3) If you are a constituent of Senator Kolker or Senator Mullica, please reach out to them and urge them to keep the PERA sections in SB23-016! 

We need PERA members and constituents to contact two Senators on the Finance Committee: Senator Kyle Mullica and Senator Chris Kolker, and urge them to ensure that Section 2 remains in SB23-016. If you are a PERA member and/ or a constituent of these Senators, your voice will be crucial in ensuring this piece of the bill remains intact. You can use this email/ call script to help with outreach – it should only take 2 minutes. 

Senator Kolker represents Senate District 16 which includes Littleton, Columbine Valley, and Bow Mar and the areas around those towns.

He can be reached at chris.kolker.senate@coleg.gov or 303-866-4883.

Senator Mullica represents Senate District 24, which includes Thornton and Federal Heights. 

He can be reached at kyle.mullica.senate@coleg.gov or 303-866-4451.

If you are unsure whether you are a constituent of these Senators, you can find out here. 

Testify on 3/16 to Keep Colorado Nuclear-Free!

In our efforts to keep Colorado nuclear-free as our state plans our necessary transition away from fossil fuels, we have an important hearing coming up related to nuclear power, which would benefit tremendously from public testimony to ensure it does not pass:

Thursday, 3/16 at 1:30pm – Urge House Energy & Environment Committee Members to vote NO on HB23-1080 “Reliable Alternative Energy Sources”. This bill would fund a feasibility study for introducing Small Modular Nuclear Reactors (SMRs) to Colorado. For instructions to register to testify, and talking points to help craft your testimony, please see this toolkit: https://drive.google.com/file/d/1WTvjnZyjQkZscwmZEn_ZgqZ1EX0w3EeE/view?usp=sharing.

Three questions for the next mayor of Denver

Published in the Colorado Sun on February 11th, 2023

The next mayor of Denver must have a heart that longs to keep all of Denver safe from the effects of the changed and changing climate. The next mayor of Denver must have the skill to lead the city to make Denver a world leader in dealing with the changed and changing climate.

The next mayor must clearly prioritize the transition away from burning fossil fuels with initiatives — both established and new — that lead the residents of Denver toward cleaner air, safer indoor spaces, and the new sustainable economic future.

Knowing that racial justice and climate justice are tied together, the next mayor must see that the city must aid those who cannot afford the steps that must be taken to stop burning fossil fuels. More difficult, the next mayor must find ways to persuade those who can afford the steps that must be taken, to take them.

Whatever other good priorities the next mayor has, he or she and the city will face the consequences of our burning fossil fuels: smoke, more heat, ozone, drought, dying forests, erratic weather, potential shortages, and climate refugees.

When new housing is built to help solve our housing crisis . . .

When considering how to help cars, bikes, and pedestrians share the roads . . . 

When trash is collected . . .

When the police do their work, and we strive for justice . . .

When the firefighters do their work . . .

When the city purchases equipment, when it buys its vehicles, when it heats and cools its buildings . . .

When the recreation centers open their doors . . .

When the planes take off from DIA . . .

. . . the mayor must direct the city to do these things in ways that protect Denver from the consequences of the changed and changing climate.

Over the course of 12 years, by 2035, the mayor will know if he or she succeeds if Denver as a whole powers itself by 90% renewable energy.

But which of the many candidates for mayor will care for the health of the city the best? Here are some questions to ask at the forums and debates with the candidates.

These questions are listed in degree of difficulty to show knowledge and commitment to addressing the climate crisis in a just way. The first question is the hardest to answer and the most concrete for city-wide action. The last question might be interpreted as a softball. But if you get a chance to ask all three, they do outline the areas where we Denverites must push on a mayor over the next twelve years.

Q: Do you support the recommendations of Denver’s 2020 Climate Action Task Force and how will you fund the hundreds of millions of dollars it calls to raise?

Acceptable answers will range from a basic familiarity with the Climate Action Task Force; to a basic familiarity with the office of Climate Action, Sustainability and Resiliency and a clear prioritization of the climate problem; to a detailed knowledge of both the task force and the climate action office; to a clear prioritization of the climate crisis and a plan for getting Denver to its stated goal of 65% renewable by 2030 (or a similar plan), with paths that raise up those who have suffered environmental injustice.

Where will Denver get the money? What part must come from the city? As for the rest, how would the candidate put together  public-private partnerships? How would he or she obtain state and federal funding? How do we electrify environmental justice homes and businesses, and work with landlords? Has the candidate given this serious consideration?

The candidate should be talking in the range of $160 million to $240 million a year through 2035.

Q: What opportunities present themselves with the renewal of the Xcel Franchise agreement in 2026?

Acceptable answers acknowledge that the renewal does present opportunities to get Xcel to support more rooftop solar with batteries, community solar, and to rapidly move its transition to renewable technologies.

Q: How would you as the mayor help create a city-wide culture that will lead to accomplishing the 100% carbon neutral goal in 2040?

The answer to this question will tell a lot about the style of the candidate. Bringing a whole city along such a transition is the job of a good politician. Being unnecessarily divisive doesn’t help, being skillfully courageous does help.

Potentially, the next mayor of Denver will have 12 years to achieve his or her goals. The Denver mayor has limited but powerful tools at his or her disposal. Some of those tools can indeed effect substantial change; others are tools of persuasion. The next mayor needs to build a city-wide culture that looks forward to the new electrified economy.

To do this, the new mayor must establish world-leading goals and a path to meet those goals. A world-leading goal is necessary because the world needs leadership to achieve its necessary reductions. Simply being average in a world of below-average responses does not solve the climate crisis. The goal of being 90% fossil fuel free by 2035 is adequate.

Denver is ready to lead. Leading the world means that we show how American people can live their lifestyles more justly while not over-heating the planet.

These goals cannot be simply hidden within the city government but must be broadly shared by both businesses and the public. There are many allies within Denver and a wide-spread acceptance among Denverites that the climate crisis deserves to be addressed in substantial ways. Setting a path forward will have its difficulties but is doable. We need a mayor who will lead us in solving the climate crisis.

Jeff Neuman-Lee, of Denver, is Legislative Team co-chair for Together Colorado‘s Climate Justice Committee.

Action Alert: Letters Needed to Legislators Telling Them About a New Report on How Little Oil and Gas Does for Colorado!

Have you seen the news that oil and gas extraction in our state is only a small fraction of the total economy? That means it is feasible to phase out new permits for wells by 2030. Wouldn’t it be great if the public and our legislators knew this?

***Take 5 minutes now to send this easy one-click letter: https://secure.ngpvan.com/ekjNT0iS3EyA0ASVdSC3Nw2 to your state representative and senator sending them the report that shows oil and gas provides only 0.7% of Colorado jobs, makes up only 3.3% of Colorado GDP, and provides only 1.2% of state and local government revenue. Report here: https://www.coloradofiscal.org/costs-benefits-oil-and-gas-colorado/library/reports/.


***It’s easy and painless – the one-click letter will find your legislators for you and automatically send the letter to them. If you’ve got some extra time, contact your city council member too and let them know about this report, and asking them to sign this letter of support: https://secure.ngpvan.com/ftaIfFXGnESVMdU08tbPAg2 for a phaseout by 2030 of new oil and gas well permits.

Sign Petition Opposing the Guanella Comprehensive Area Plan

PDC Energy has submitted a plan for the development of a 466 well fracking site in Weld County (known as the Guanella Comprehensive Area Plan). The approval of this CAP will indisputably accelerate the climate crisis, further degrade our already poor air quality and permanently deplete our limited water supplies. We can not stand by as O&G continue to put our lives and livelihoods at risk. Please sign the petition, developed by CCLC member organization Colorado Rising, either as an individual or as an organization. The petition is located here: https://secure.ngpvan.com/QgHrisV1q0-V73mupDG72w2

Public Comment in support of Cumulative Impacts Rulemaking Petition to the COGCC

Six groups, including CCLC members 350 Colorado, WildEarth Guardians, and the Larimer Alliance, have submitted a rulemaking petition to ask the COGCC to make rules to tackle cumulative impacts of oil and gas operations in Colorado. The rules proposed by the co-petitioners will address ozone, climate, and environmental justice among other things. The COGCC wants to hear from the public and groups about whether they should hold a rulemaking on these issues.

Instructions for submitting comments, along with background information can be found in this toolkit: https://docs.google.com/document/d/1_16ulI1vV7pW7rmH0xaN2cHaIuQJ2y0TzTb944T8utg/edit#.

Comments made on behalf of organizations are especially helpful.

Action Alert: Tell Your Representative to Stop Manchin’s Dirty Deal!

As part of the deal to pass the Inflation Reduction Act, Senators Manchin and Schumer are introducing a separate piece of legislation that would fast-track permit approvals for dangerous fossil fuel projects in September. We need to tell our Congressional delegation to oppose this act.

The bill finally “dropped” on September 21st. As was long anticipated it’s a disaster – it guts bedrock environmental protections, endangers public health, fast-tracks fossil fuels, and pushes approval for Manchin’s pet project, the Mountain Valley Pipeline. You can view the bill here.

This is a dirty deal written by and for the fossil fuel industry. Leader Schumer will attach this legislation to a must-pass government spending bill this September, so we must do everything we can to stop this legislation in its tracks.

Write to your Members of Congress to pledge right now to block any efforts to dish out new fossil fuel handouts by clicking here. The permitting reforms proposed solely benefit the fossil fuel industry. Protecting our communities and climate is more important than giving Senator Manchin another present to take back to his fossil fuel industry donors. Stop the dirty deal.

The Supreme Court has put us in a Constitutional Crisis and a Climate Crisis

Published in the Colorado Sun on August 6th, 2022

The Colorado Coalition for a Livable Climate is outraged by the recent Supreme Court decision eviscerating the Environmental Protection Agency’s ability to limit greenhouse gas emissions from power plants.

The decision is an outright attack on Congress that shatters our checks-and-balances system of government. It signals that we are in a constitutional crisis that will impede our ability to tackle the climate emergency. 

There are multiple flaws in the Court’s decision on West Virginia vs. EPA. First, the Court chose to accept a case in which the EPA regulation in question — the Clean Power Plan — was repealed three years ago. That is a clear overreach of its authority. No court should have the ability to resurrect a repealed law or rescinded regulation, just to create new legal precedent at will.

Second, the Court majority abandoned the strict “originalism” to which it otherwise professes fealty and invoked the relatively novel legal theory it has deemed the “major questions” doctrine, that allows the court to engage in judicial activism across any spectrum of society, business, or law. This intrusion into both the executive and legislative branches functions violates the Constitution’s separation of powers. 

Third, the majority’s reasoning calls into question Congress’s ability to legislate and delegate implementation of rules to regulatory agencies with the requisite expertise to protect consumers, workers, and the environment. It is unreasonable to expect legislators to have decades of professional experience in every aspect of a proposed bill.

In addition, the executive-branch functions of selecting agency heads and defining their missions — backed by career civil servants who are presumed to be  expert in their field — shouldn’t be overruled by an unelected judiciary with neither the constitutional authority nor the expertise to do so. This is a runaway jury, as novelist John Grisham would say. Clearly, if our three branches of government do not respect each others’ powers, our Constitution ceases to provide the protection it has afforded for the last nearly 250 years.

This decision and others this year are the end result of a multi-decade process by corporations and wealthy individuals to politicize the Supreme Court by filling it with extremist, corporate-friendly justices. Fairness and principle had no place whatsoever in this lengthy plan to reshape the Supreme Court into one which values corporate rights over human and civil rights. The current court majority clearly prioritizes corporate interests over all others, including — in the case of West Virginia vs. EPA — the continued viability of Earth as a home for humans and other animal species.

Come October, the Court will once again exercise the “major questions” doctrine by ruling on whether automobile emissions standards are also beyond the bounds of regulatory oversight, likely returning us to days of low miles/gallon vehicles, and condemning air quality to be irreparably harmed. The current EPA-allowed limit on breathing particulate matter, which is generated primarily from power plants and internal combustion engines, is 11 pounds per day. 

That’s right: It’s acceptable to breathe in 11 pounds of invisible soot every day. With the rollback of the Clean Air Act, and the forthcoming ruling to eviscerate emissions standards, how much more pollution will we breathe each day, and when did it become the job of the Supreme Court to decide this?

Ask your Congressional representatives what they can do to restore checks and balances, and the authority of both the legislative and executive branches of government. The fastest and surest way to do this would be to expand the Court to 13 or more justices to restore the balance that is now clearly lacking.

Court expansion would also require eliminating the filibuster rule in the Senate. Term limits for justices, curtailing the Court’s jurisdiction, and making judicial ethics — including mandatory recusal requirements and discipline applicable to the justices — should also be explored. Demand a plan to address the climate crisis from the legislative branch that can be implemented by the executive branch agencies and will survive this activist court. 

Since the prospects for Supreme Court reform are slim, we must also do everything we can at the state level, by electing candidates who are committed to climate action. And we can contact our congresspeople and tell them we want their support on the Inflation Reduction Act.

We are in both a constitutional and climate crisis; the time to act is now. Failure to address climate change will have devastating consequences, not just for our children and grandchildren, but also for ourselves.

Kevin Cross, of Fort Collins, and Jan Rose, of Wheat Ridge, represent Colorado Coalition for a Livable Climate.

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