Colorado likely will need to rewrite its plan to reduce ozone pollution after a federal appeals court this week determined it was illegal for the state to ignore emissions from oil and gas fracking operations as it tries to improve air quality.
The ruling by the 10th U.S. Circuit Court of Appeals is a win for environmentalists who have argued that the oil and gas industry is among the largest polluters in Colorado and that state and federal air regulators need more stringent permitting rules in place to limit the toxic fumes coming from the industry.
“Colorado ignores pollution from oil and gas wells when fracked,” said Robert Ukeiley, an attorney for the Center for Biological Diversity. “We think that’s a big reason why we are in a severe area when it comes to ozone.”
Colorado’s Air Quality Control Commission approved the state’s air-quality improvement plan in December without requiring fracking emissions to be considered when determining whether an oil and gas drilling site needed an air pollution permit. That allowed oil and gas operators to release unlimited amounts of toxic chemicals while digging a well and then fracking the site, Ukeiley said.
The Environmental Protection Agency approved the state’s plan, and that’s when Ukeiley’s organization filed a challenge in the federal courts.
Already, state regulators knew their air quality plan was flawed after those who drafted it admitted they had miscalculated future emissions from the oil and gas industry.
On Monday, the 10th Circuit agreed with the Center for Biological Diversity that the EPA was wrong to approve the plan without limits on emissions from fracking, according to an opinion published by the court.
The various agencies involved in the court’s decision were still digesting the ruling on Tuesday and it was unclear what’s next for the state.
The American Petroleum Institute, which represents the oil and gas industry, signed onto the case with the EPA to argue Colorado’s plan was valid.
On Tuesday, the institute’s director, Kait Schwartz, said in an email to The Denver Post, “We are reviewing the court’s decision and remain engaged with regulators and stakeholders. We are hopeful that the matter will ultimately be resolved in a functional and practicable manner for the people of our state.”
Efforts to reach officials from the EPA and the Colorado Department of Public Health and Environment, who could answer questions about what’s next, were unsuccessful Tuesday.
Under the air quality improvement plan approved in December, the state decided oil and gas operators do not need air pollution permits for temporary emissions, and state regulators determined that fracking qualified as temporary. Fracking involves the high-pressure injection of liquid into a well at the beginning of the process to create cracks in deep rock formations to ease the flow of natural gas and petroleum.
“In other words, you can put out as many temporary emissions as much as you want,” Ukeiley said of the plan. “And according to this state, fracking is temporary emissions.”
Colorado only requires permits once a well is dug and fracked and has started normal operations.
“The data shows the dirtiest part is that front part of the drilling, fracking and completion,” Ukeiley said.
The ruling could mean that oil and gas operations that previously qualified as minor sources of pollution now will be pushed into the major source category, he said. That means more stringent permits that require operators to offset pollution. Almost all of the operators along the Front Range are considered minor sources.
“They keep adding more and more pollution, but they label it minor source,” Ukeiley said. “There are thousands and thousands of minor sources.”
The Denver Metro Area and Northern Front Range have been out of compliance with federal air quality standards for 15 years. The state has missed 2008 and 2015 deadlines for lowering emissions that cause ground-level ozone pollution. State air regulators believe Colorado can meet the 2008 requirements by 2027, but will continue to fail to hit the 2015 goals.
Because of those failiures, the EPA last year reclassified Denver and the northern Front Range as severe violators of federal air quality standards. That label means motorists will pay higher gas prices, starting next summer, and hundreds of businesses will be required to apply for air pollution permits when they previously did not have to do so.
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