Bring on the #ClimateChange lawsuits in #Colorado — Colorado Newsline

A view of Xcel Energy’s Cherokee Generating Station in Adams County on Feb. 20, 2022. (Quentin Young/Colorado Newsline)

Colorado officials are failing to respond to climate change with the urgency the crisis demands. The least they can do is let everyday Coloradans help.

The state already expects residents to do their part. Gov. Jared Polis prefers to nudge individuals to make lifestyle changes such as upgrading to an electric vehicle rather than require that a corporation inconvenience itself with new climate-saving measures.

But the state should give individuals the most muscular climate-action tool there is — the power to sue.

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With such authority at citizens’ disposal, Colorado would have all the personnel it could need to help the state enforce its environmental standards.

Texas lawmakers when they adopted the odious anti-abortion Senate Bill 8 last year understood the potential of citizen suits, in which private citizens are empowered to enforce laws through the courts. Texas Republicans adopted an extreme form of citizen-suit authority as an underhanded device to shield the law from legal challenge, but citizen suits themselves are nothing new.

A key component of the nation’s primary environmental laws — such as the Clean Air Act and the Clean Water Act — is that they allow “any person” to sue to ensure compliance with the laws and to force federal environmental agencies to do their job.

“The citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance” that federal environmental laws would be implemented and enforced, said the D.C. Circuit U.S. Court of Appeals in 1974.

Some research suggests that most federal citizen suits are filed under the Clean Air Act, which sets national emissions standards for a wide range of air pollutants and regulates the toxic substances electric utilities and other large sources can release into the air. It was under the Clean Air Act that in 2017 that environmental advocacy group WildEarth Guardians brought a successful citizen suit against Colorado Springs Utilities, which resulted in air quality improvements at the coal-fired Martin Drake power plant.

Many states grant citizen-suit authority for enforcement of state environmental standards, which can be more protective than federal standards. Colorado is not one of them. But it should be.

A report from 2004 put at 16 the number of states that had granted citizens “general authority to enforce state environmental statutes,” the exemplar being Michigan. Colorado law allows for citizen suits related to a narrow form of oil and gas regulation, notes Jeremy Nichols, climate and energy program director for WildEarth Guardians. But to his knowledge the provision has never been invoked, he said. And Newsline confirmed this week that citizen-suit authority remains absent from the Colorado parallels to the Clean Air Act and the Clean Water Act.

“The state-level versions of those acts, including the Solid Waste Act, Hazardous Waste, or Air Pollution Prevention and Control Act, do not have citizen suit provisions,” wrote a spokesperson for the Colorado Department of Law in an email.

The Legislature should update these sections of state environmental law by inserting citizen-suit authority. A 2022 bill, in fact, that never got beyond draft form would have granted citizen-suit authority in Colorado for “certain clean air regulations,” according to a version shared with Newsline. The draft indicated that Boulder Democratic Rep. Edie Hooton had contemplated sponsoring it. Hooton did not respond to a message seeking comment.

Why not let citizens lend a hand? Give them access to the courts and watch enforcement of the state’s environmental standards achieve a new urgency.

The stakes of the climate change crisis warrant an all-hands-on-deck approach to enforcement of environmental regulations. As a practical matter, Colorado could use all the help it can get. The state’s clean-air regulatory bodies have long faced complaints they lack the resources to properly keep up with enforcement duties, and whistleblowers have alleged regulators are too cozy with polluters even if they did enjoy sufficient staffing levels.

Why not let citizens lend a hand? Give them access to the courts and watch enforcement of the state’s environmental standards achieve a new urgency.

In December, California Gov. Gavin Newsom in response to the U.S. Supreme Court allowing the Texas abortion ban to stand expressed outrage, but he embraced the precedent as an opportunity. He spearheaded state legislation that, modeled on the Texas ban, would allow private citizens in California to sue manufacturers and sellers of assault weapons. This action suggests the availability of even more aggressive forms of environmental citizen suits — the kind that go further than merely allowing citizen enforcement of standards already on the books. Colorado lawmakers should explore such options. 

The deteriorating state of the climate indisputably justifies bold emergency action. Accelerating catastrophic effects of a warming planet are seen throughout the world. The Southwest is more than two decades into a severe drought, and warmer, drier conditions are fueling disastrous wildfires and depleting water resources.

Colorado citizens are suffering in the face of climate change. Citizen suits would give them a powerful way to combat it.

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Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.

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