Air regulators o er legal help to neighborhood groups

Free lawyers to represent groups as environmental rulemaking starts

BY MICHAEL BOOTH THE COLORADO SUN

Did you hear the one about the state government o ering the public free lawyers to harass … the state?

It’s no joke. In one of the rst tangible impacts of environmental justice policies and rules that are working their way into multiple battlegrounds overseen by state and federal regulators, Colorado’s public health department now links community groups with pro bono lawyers who can help the groups become o cial “parties” in complex environmental rulemaking, giving them a voice ampli ed by legal muscle.

e rst such e ort will play out later this year as the Air Quality Control Commission writes new rules requiring some of the largest industrial polluters in Colorado to cut their greenhouse gas emissions by set percentages. e community group Climate Equity Community Advisory Council wants to ensure the state requires 18 targeted industrial polluters to make real cuts using the best technology, not just the cheapest. And they want an accounting of the results down the road.

e air commission and many other state agencies have always taken public comments, said Rachael Lehman, a member of the advisory council, and a Community College of Denver faculty member who volunteers to work on environmental issues.

But too often, Lehman said, “the result is ‘We got your comments, now shut up.’ I’ve seen it in multiple situations, where they say, ‘Yes, we had so many community meetings.’ OK. But did they actually listen and incorporate what the community said?”

Regulators from the Colorado Department of Public Health and Environment put the community council in touch with volunteer Wyatt Sassman of the University of Denver Sturm College of Law’s Environmental Law Clinic. ey are now a party to the industrial pollution rulemaking, sitting shoulder to shoulder with the likes of Anheuser-Busch, Cargill, Molson Coors and environmental giants like the Sierra Club.

“It’s important for us to just have that ability to be able to keep an eye on things, and make sure that the rule is being written in a way that is understandable,” Lehman said. She worries that the big companies targeted by the industrial rules “have the big, big pockets, and you can sort of buy your way out of this.” Sassman, she said, is helping the community group understand the rule drafts word by word, and “what’s even in the realm of possibility.” e commission’s rulemaking sessions debate how to carry out directives from the legislature. As part of Colorado’s overall e ort to reduce all greenhouse gas emissions by 50% by 2030, the legislature added details in 2021 requiring the largest industrial polluters to cut emissions 20% by that year, from a 2015 base year. Any industrial company emitting over 25,000 metric tons of greenhouse gases a year would need to start limits in 2024.

State o cials said they have worked hard to create meaningful community engagement.

A series of state and federal policies made into law in recent years require agencies to consider how past pollution has disproportionately impacted communities with lower incomes and higher minority populations. By default or conscious zoning, Colorado industries are concentrated in communities like north Denver, Adams and Pueblo counties, and in other locations with measurable impacts on the physical health of lower income residents.

“We just are looking at our process from beginning to end, thinking about how we can interact with all stakeholders and open the door to include voices we aren’t hearing, which was quite a few,” said Lauren McDonell, climate change outreach planner for the Air Pollution Control Division. e division sta s the air quality commission and carries out day-to-day air regulation.

After rounds and rounds of lings by the parties, public comments and state responses, the commission will take up the industrial rules, called GEMM Phase 2, in September. e list of 18 Colorado companies ranges from American Gypsum to Molson Coors and Cargill Meat Solutions, to Sterling Ethanol and Suncor Energy’sCommerce City re nery.

Public comments are great, McDonell said, but if a community group is granted “party” status, “they’re actually around the table with other entities, who actually can get into the details of the rule language, they can propose di erent language, alternate proposals.” e APCD’s Clay Clarke reached out to the Colorado Bar Association environment committee and wound up with a list of pro bono attorneys willing to dig in on behalf of community groups. e corporations will have their general counsel and expensive private attorneys, and the established environmental nonpro ts have their sta and contract attorneys,

Becoming an o cial “party” has more involvement and in uence, “but it’s also more time, and it comes with deadlines and things that are related to a legal process. ey don’t require an attorney, but it’s a heck of a lot easier if you have one,” McDonell said.

Sassman said. Community members who may live right next to the industrial plants, meanwhile, are facing “complex and jargony” issues, in their spare time.

“ at’s where somebody like us could come in and help,” Sassman said.

State o cials say they are prepared to handle the results from their e orts at balance, and know full well they are handing the community a list of lawyers who could make regulators’ lives miserable.

“No one’s ever too happy with us” anyway, McDonell said. “But in all seriousness, I think the priority here is to get the voices to the table to have a normal conversation because historically, again, it’s those wellfunded groups that have been part of the conversation. We don’t have any control or expectation about them being supportive of us or the proposal. We know they’re going to challenge us and we want that, we welcome that.”

Lehman and the advisory council already have some buzzwords in the rule drafts for which they are seeking more legal explanations.

Carbon capture, for example, bothers Lehman to no end. She fears state regulators may allow the industrial polluters to keep spewing damaging air into neighborhoods but then o set it through buying carbon credits or stu ng the carbon underground in long-term storage, an ethically controversial tradeo .

Community groups also want tough enforcement language written into the rules, Lehman said. If she gets too many speeding tickets, her driver’s license is taken away, she said. But companies like Suncor have years of multiple air violations and never lose their permits.

“It is a dual system of justice,” Lehman said. “Big polluters continue to do what they want, and our government doesn’t have the courage to just say we are in the business of protecting our citizens and you have to shut down. How is that so hard?” e air pollution division knows the lawyers on their pro bono list will bring those arguments, and more, to the industrial pollution rules, and other upcoming policy battles.

“We absolutely have a deep commitment to environmental justice,” McDonell said. “But we can only say that so many times.” is story is from e Colorado Sun, a journalist-owned news outlet based in Denver and covering the state. For more, and to support e Colorado Sun, visit coloradosun.com. e Colorado Sun is a partner in the Colorado News Conservancy, owner of Colorado Community Media. e new approach “de nitely cuts providers o at the knees with their ability to step into this rst year of (universal preschool) and have adequate facilities and adequate sta ready to go, trained,” said Scott Bright, owner of ABC Child Development Centers, which has 25 preschool sites across Weld County, six of which will participate in Colorado’s expanded preschool program. “ is is a system that providers have been hesitant to jump into because they haven’t gotten clear answers from the departments on how this is all going to go down.” e Early Childhood department, which has a $322 million budget for its inaugural year of the expanded preschool program, previously pledged to compensate preschools participating in universal preschool based on the number of 4-year-olds they had room to educate, regardless of whether they lled all their seats. at’s a much more predictable and reliable method of funding, providers say.

Instead of paying a provider for the number of students it has the capacity to educate, as originally promised, the department will now dole out funding based on the number of students enrolled. It might seem like a subtle shift, but to preschool providers who already run their programs on thin margins, it could mean the di erence between continuing their classes and closing them down for good.

During a Jan. 12 meeting among members of the department’s Rules Advisory Council, M. Michael Cooke — then a universal preschool representative from Gov. Jared Polis’ o ce — said that through monthly state payment to providers from Au- gust through October, those providers would receive a dollar amount based on their capacity, regardless of whether providers could ll all their seats. en in November, she added, the department would reassess how many kids had actually enrolled in provider programs and adjust payments based on those numbers.

“We want to be helpful,” Cooke added. “We don’t want to create a situation where we’re creating a budget shortfall for community partners. We don’t want to create a situation where there has to be a layo of sta .”

However, as the state tried to balance the number of preschool slots available with the number of kids actually being enrolled, it became clear that the scale tipped too far. Data “showed a signi cantly higher number of available seats in the universal preschool system than participating families,” Early Childhood department spokesperson Hope Shuler wrote in an email to e Colorado Sun, noting that there were about two seats open for every child whose family applied.

Bright, who also serves as board president of the Early Childhood Education Association of Colorado, sees the decision to change funding as something of a bait-and-switch after the Early Childhood department simply couldn’t a ord to pay all participating providers for the surplus of preschool slots. at leaves providers like Bright feeling pinched.

“ ey realized they ran out of money based on the promise they made, and now providers are left carrying the load,” said Bright, who typically keeps his business a oat with no more than two weeks of operating cash in the bank at any one time.

Without upfront payment from the state for all kids who enroll in universal preschool at his centers, Bright said he won’t have the funds to pay his sta .

Under the revised funding plan, which Shuler said was communicated to providers by June 27, the state assessed the number of kids enrolled in programs on July 9. Programs will receive funding Aug. 1 based on that count of kids. However, the latest round of matching preschoolers with speci c programs — so far it has facilitated four sets of matching — was completed later in July. at means providers could end up with preschoolers on the rst day of classes who they haven’t been paid to educate. ey won’t receive funding for those students until the next payment from the state, scheduled for Sept. 8.

Each month from August through May, Shuler said, providers will receive a payment determined by the number of students enrolled in their program on the 15th of the previous month. e sum will be adjusted each month so that the amount given to providers accounts for any enrollment swings and re ects the number of students in their classrooms.

“It is very di cult for a provider to hire their sta , prepare their facilities for kids and then not necessarily have all of those seats full but yet have to pay payroll and have to pay the mortgage payment and have to turn the lights on and have to turn the heat and/or AC on,” Bright said.

“It’s very di cult for us to do that when you’re now told late in the game that we’re only going to pay you based on enrollments and we’re going to true up your enrollments every month.” e state is rolling out something of a nancial safety net for providers so that they’re guaranteed at least the same amount of funding they received last year under the state’s previous preschool program, called the Colorado Preschool Program. At

SEE PRESCHOOL, P9

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The Sun, launched in 2018, is committed to fact-based, in-depth and nonpartisan journalism. It covers everything from politics and culture to the outdoor industry and education. the end of the school year, the state will compare the amount paid to each provider this year under universal preschool to the amount paid to each provider last year through the Colorado Preschool Program, according to Bright. If a provider earns less in universal preschool than the amount they earned last year through the Colorado Preschool Program, the state will pay them the di erence, he said. e Early Childhood department was not able to clarify details of its plan to ensure providers receive at least as much funding this school year as they did last year. e only nancial path forward, he said, involves keeping kids who enroll last-minute on the sidelines until the state pays providers for them. at means, for instance, that any family who enrolls their 4-year-old from late July through mid-August will have to wait to start universal preschool until September, when Bright receives money from the state for that particular child. e Early Childhood department doesn’t believe any preschools will have to postpone the start times for any kids, with Shuler writing in an email that “payments will be reconciled for the next month and providers will receive pay if children start earlier.”

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It’s not yet clear whether providers like Bright who own more than one preschool center — including two that participated in the Colorado Preschool Program and six slated to be part of universal preschool — will be compensated for each licensed facility, which will a ect the amount of funding owed by the state.

Bright added that he can’t wait until the end of the school year for funding that is crucial to his ability to keep running his business.

She said the department is also con dent that the rst payment in August, along with the monthly payments recalculated to compensate providers for any enrollment changes, will “help support providers” and are “much more provider-friendly” than other preschool subsidy programs that have paid based on the number of kids attending their program.

Bright noted that under the Colorado Preschool Program he received funding for the entire school year starting in August with monthly payments through May, contingent on his facilities having all seats funded by the state lled with kids by Nov. 1.

He doesn’t see another option other than a delayed start for kids who enroll late.

“I would drown my company if I were to provide services that I was not paid for,” he said.

Bright and other preschools are also worried about having to shutter centers altogether.

One of the six ABC Child Devel- opment Centers Bright owns that is participating in universal preschool has 12 classrooms, only three of which are full with kids whose families have opted into universal preschool. He needs all classrooms full to stay nancially whole at the center, which mostly serves lowincome families.

He expects all the classrooms to ll by November, but to keep the school open until then, he needs the upfront funding from the state. If the school stays open with empty classrooms, he’ll have to lay o teachers and will be unable to accept new students until the state pays their tuition.

Meanwhile, Melissa Lelm, director of Early Childhood University in Greeley, has enrolled only 33 students through universal preschool, far short of the 96 licensed spots in her center. e state has matched another 10 students with her facility, but though Lelm has repeatedly called and emailed those families to encourage them to accept their match, she’s been met with silence. At the same time, she has to renew her lease this year with her landlord wanting to raise her rent.

“I don’t know if we’ll be in business at the end of May of 2024,” said Lelm, who has worked in early childhood education for more than 40 years.

Lelm recently laid o four employees who are now collecting unemployment, keeping only one teacher and one teacher assistant on her sta . And as the Early Childhood department pivots to paying providers based on the number of kids enrolled, she anticipates her reserves will dwindle as she tries to cover even the smaller payroll. She’s applying for grants to help ll in the gaps and has so far collected $26,000, including from the state’s Child Care Stabilization and Workforce Sustainability Grants and a $4,000 state Capacity Building Grant that can fund necessities such as furniture and educational and health care materials.

“ at money will go very quickly for payroll and rent,” Lelm said.

She might be forced to lay o her teacher assistant if enrollment continues to stagnate, but Lelm knows that having more than one trained adult in the classroom helps kids and teachers form better bonds.

Lelm wonders if she’ll be up against the same uncertainties around how many students she’ll serve and how many sta she needs each year of universal preschool — if she manages to stay open.

“I just hope it works,” she said. “I don’t know if they thought it through thoroughly enough.” is story is from e Colorado Sun, a journalist-owned news outlet based in Denver and covering the state. For more, and to support e Colorado Sun, visit coloradosun.com. e Colorado Sun is a partner in the Colorado News Conservancy, owner of Colorado Community Media.