The Energy and Carbon Management Commission (ECMC) is about to get into the dictionary and the math business. HB23-1294, Pollution Protection Measures, tasks the ECMC with defining two terms: “incremental” and “cumulative.” The legislation then tasks the commission with adding up incremental pollution impacts to determine the cumulative effects of oil and gas extraction on the environment, which includes the people of Colorado and not just the bottom lines of oil and gas operators.

The two terms are significant to the study of air pollution that has become an annual summer event in Colorado as the chemicals from vehicle emissions and oil and gas extraction mix with sunlight to create ozone that irritates human tissue and turns up the heat on the planet.

The words are also important to the concept of environmental social justice which embraces the idea that the deleterious overall effects of pollution too often impact mostly low-income families living close to pollution sources.

In its previous iteration as the Colorado Oil and Gas Conservation Commission, whose mission was to “foster” oil and gas development, air pollution was viewed through near-sighted lenses. Pollution studies relied on data and analysis from industry rather than from independent sources. This data were looked at in incremental bits like the individual dots in a pointillist painting. The commission never put the dots together to create a full picture.

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The commission, in its old and new form, has been told twice by the legislature to fix its rules on oil and gas development. SB19-181 changed the commission’s mission from “fostering” oil and gas drilling to regulating extraction in a manner that “protects public health and the environment.” In the 2023 General Assembly, like parents telling a child the second time to put out the trash, the legislature passed HB23-1294 demanding new rules to bring Colorado into compliance with federal pollution law and international agreements.

The new rules must come to terms with the terms “incremental” and “cumulative,” especially “cumulative.” This shouldn’t be a tough job since the federal government put together this definition more than 50 years ago through the National Environmental Policy Act (NEPA).

NEPA states the following: “Cumulative impact is the impact on the environment, which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency… or person undertakes such other actions. (40 CFR § 1508.8).”

Fifty years of case law on this definition says an oil and gas leak cannot be considered in isolation. First, a leak affects many parts of the environment. Second, in the extraction industry, a leak is one of many leaks. When they are accumulated as a whole, they have brought us to a tipping point in climate catastrophe.

In a counter-intuitive goal, our political and economic leaders have stated Colorado should expand its oil and gas drilling by 30%. Our political leaders also have stated the state must reduce greenhouse gas emissions and other pollutants to comply with various national agreements such as the Paris Accords. Isn’t it impossible to add and subtract two opposing numbers acting on the same number simultaneously and reach the correct numbers for two opposing goals simultaneously?

NEPA requires Environmental Impact Statements (EIS) as part of pollution regulation. An EIS examines various options related to proposed projects to mitigate pollution. Currently in Colorado’s model, mitigation involves such actions as rearranging well sites or changing equipment from storage tanks to pipes.

A NEPA EIS goes further by requiring a no-action option in which the alternative to drilling 100 wells in a well pad would be not drilling new wells at all. Such an analysis would put oil and gas projects under a far-sighted lens.

As an example, mitigation assessments based on changed rules might include expanding renewable energy or doing nothing. Colorado’s current oil and gas operations produce a lot of energy, enough to satisfy the needs of the state with excess shipped out of state, often to foreign buyers. A NEPA-based EIS would examine whether it would be smarter environmentally and economically to leave the oil or gas in the ground in the short term rather than producing and shipping this resource to other countries.

With this deeper analysis, the state can determine whether the risk of pollution, especially for populations close to pollution sources, is too great. History suggests the ECMC needs this kind of rigor in its analysis as the vast majority of requests for drilling permits currently are granted.

A great deal is at stake in this rule-writing. The legislature has spoken. Will the executive branch of government through this ECMC hear what the people’s representatives have asked them to do, twice?

Paula Noonan owns Colorado Capitol Watch, the state’s premier legislature tracking platform.