Peak & Prairie
August / September 1999
1999 Session: Many Defeats, Few Victories
by Sandra Eid, Legislative Coordinator
Emboldened by the election of a Republican governor (the first in more than two decades), Republican legislators resurrected a number of anti-environmental measures that had either failed to pass in previous years or been vetoed. all of them passed this year, and all of them were signed into law.
The resurrected bills limit prescribed burning on public lands; continue privilege and immunity for businesses doing self-audits; advance property rights for developers; and require legislative approval for the reintroduction of endangered species. The Sierra Club and other environmental groups opposed these measures. The General Assembly and Governor Owens ignored our opposition.
A small number of good environmental bills also passed—primarily, bills that continue programs already in existence. But once again, the legislature failed to address public concerns about growth and sprawl, except for the formation of an interim committee.
The environmental scorecards that accompany this article show cause for alarm. In 1997 there were only four senators with scores of 40 or lower. In 1998 that number increased to 13. This year (1999) there are 18 senators (51 percent) who rejected most efforts to protect our environment. The numbers in the House of Representatives are even more alarming: 15 in ’97; 21 in ‘98; 37 in ‘99—fully 57 percent who, by scoring 40 or lower, seem to be defying the Colorado voters who identify themselves as environmentalists.
One of the victories for voters and the environment was the defeat of a bill that should never have been introduced. HB 1384 CONTROL OF ODOR EMISSIONS (Rep. Spradley, R-Buelah) did not appear on either the status sheet or the calendar prior to the day of its hearing. It was considered by the House Agriculture, Natural Resources, & Livestock Committee on the 111th day of the 120-day session.
HB 1384 would have significantly altered the air quality and citizen suit provisions of Amendment 14 REGULATION OF COMMERCIAL HOG FARMS. This amendment—directed at large-scale factory hog operations—was adopted by Colorado voters in November, ‘98, by a vote of 62.4 percent.
Amendment 14, itself, was the result of legislative inaction, and the failure of the hog industry (and other concentrated animal feeding operators) to recognize their obligations to protect water and air quality. HB 1384 was a last-minute, bad faith effort to get the legislature to overturn portions of Amendment 14. The bill was killed by a committee vote of 7 to 6.
SB 145 AIR QUALITY STANDARDS FOR PUBLIC LANDS (Sen. Wattenberg, R-Walden, Rep. Taylor, R-Steamboat Springs) was one of the bills resurrected from previous years. (As SB 98 to 4, it was vetoed by Governor Romer.) SB 145 requires the submission of federal land management plans to the Colorado Air Quality Control Commission. It also requires the denial of permits for prescribed burning unless the plans are consistent with Commission recommendations.
The goal of SB 145 is to promote logging on public lands, and to limit prescribed burning—an important tool for reducing wildfire risks and for maintaining forest integrity. The Sierra Club opposed the bill and believes that it is illegal and unenforceable. SB 145 creates a new requirement for federal land managers that is not applicable to other parties. Nonfederal activities on federal lands are specifically exempted by the bill. SB 145 passed the Senate by a vote of 22-12-1 and the House by a vote of 43 to 22. Governor Owens signed the bill into law on May 24.
A second bill—HB 1351 REGIONAL HAZE POLLUTION (Rep. Mitchell, R-Broomfield, Sen. Teck, R-Grand Junction)—also applies only to public lands. It does not address pollution on private lands. HB 1351 requires the periodic preparation of emissions inventories of pollutants that affect visibility in class I (wilderness) areas. The inventories are to include: stationary sources, mobile sources, paved and unpaved roads, fires, and biogenic sources (flora and fauna). The Sierra Club opposed HB 1351. It is a violation of the federal Clean Air Act to impose requirements on federal and state governments that are not imposed equally on other parties. HB 1351 passed the House by a vote of 38-26-1 and the Senate by a vote of 24 to 11. Governor Owens signed it into law on June 2.
HB 1249 SEVERANCE TAX MODIFICATIONS (Rep. Spradley, R-Beulah, Sen. Wattenberg, R-Walden) was a bill by which legislators, anxious to reduce the collection of excess revenues, bestowed substantial benefits on the mining industry. For each company involved, HB 1249 provides a mineral severance tax exemption for: (1) the first 300,000 tons of coal produced each quarter; (2) the first 625,000 tons of molybdenum ore produced each quarter; and, (3) the first $19 million of gold produced each year. The combined total of these exemptions is estimated to be $3.8 million annually.
Severance taxes are levied upon the removal of nonrenewable resources (and their sale for private profit) “to recapture (for Coloradans) a portion of this lost wealth.” Proponents of HB 1249 argued that the bill would help mining in the state “to remain competitive.” After passage of this measure, but even before its signing by the governor, Cyprus Amax Minerals announced that it is selling its coal interests in Colorado to a German company. The Sierra Club opposed HB 1249. The House passed it by a vote of 54-8-3 and the Senate passed it by a vote of 35 to 0. The governor signed it on May 24.
With a ploy common in Washington, D.C., but not common in Colorado, the sponsors of HB 1271 ALTERNATIVE FUELS TAX EXEMPTION CREDIT & REBATE (former Rep. Sullivant, R-Breckenridge, Sen. Evans, R-Parker) introduced the same bill ( SB 9) simultaneously in the opposite chamber. SB 9 was eventually sacrificed as HB 1271 moved forward. This bill creates a state sales and use tax exemption for specified motor vehicles, power sources for motor vehicles, and parts used for converting the power sources of motor vehicles (greater than 10,000 pounds) that are certified by EPA or any state as meeting an emission standard equal to or more stringent than the low-emitting vehicle standard. The Sierra Club supported HB 1271. The House passed it a vote of 63-0-2 and the Senate passed it by a vote of 34 to 1. The governor signed it on May 28.
Another resurrected bill—SB 70 ENVIRONMENTAL AUDIT PRIVILEGE (Sen. Powers, R-Colorado Springs, Rep. Taylor, R-Steamboat Springs)—took the place of a bill (HB 98-1418) that failed to pass last year. SB 70 repeals the sunset date and continues indefinitely a program created in 1994. It grants to businesses doing self-audits the privilege of keeping environmental violations secret from the public. It also ensures that no penalties can be considered for either civil or criminal violations. The Sierra Club opposed SB 70.
At the hearing held by the Senate State, Veterans, & Military Affairs Committee, an alternative bill (SB 138) was presented that described a self-audit program that would have been acceptable to EPA and environmentalists. Both the Attorney General’s office and the Department of Public Health & Environment testified that, during the THREE weeks preceding the hearing, they had not had time to analyze SB 138 COMMUNITY POLLUTION PREVENTION (Sen. Thiebaut, D-Pueblo). SB 70 was passed by the committee and SB 138 was killed. The Senate passed SB 70 by a vote of 27-7-1. The House passed it by a vote of 44-18-3. Governor Owens signed the bill into law on April 14.
The three bills in this category—all supported by the Sierra Club—were noncontroversial and have been signed into law. SB 20 HAZARDOUS SUBSTANCE RESPONSE MONEYS (Sen. Phillips, D-Louisville, Rep. Zimmerman, D-Thornton) and HB 1056 HAZARDOUS SUBSTANCE EMERGENCY REPONSE (Rep. Berry, R-Grand Junction, Sen. Phillips, D-Louisville) were products of a 1998 interim committee. SB 20 creates a fund for emergency planning and response, and appropriates money for the purchase of a hazmat training vehicle that can be used to train local responders. HB 1056 designates which authorities have responsibility for hazmat incidents in various locations, clarifies the duties of different agencies, and creates a temporary committee to make recommendations to resolve reimbursement claims that result from hazmat incidents.
HB 1213 EXTEND VOLUNTARY CLEAN-UP ACT (Rep. Spradley, R-Beulah, Sen. Feeley, D-Lakewood) repeals the sunset date and continues indefinitely a law passed in 1994 that encourages the voluntary cleanup of properties contaminated by hazardous substances or petroleum products. Originally sponsored by former State Rep. DeGette (D-Denver), this law does not apply to listed or proposed Superfund sites, or to properties subject to other federal or state laws. It does facilitate the transfer, redevelopment, and reuse of existing, industrial properties.
SB 15 EXPAND COUNTY LEASE PURCHASE AUTHORITY (Sen. Phillips, D-Louisville, Rep. Witwer, R-Evergreen) was another noncontroversial bill. Previously, counties have had the authority to enter into lease purchase agreements to finance courthouses, jails, and other buildings and equipment. SB 15 expands that authority to include the financing of public parks, trails, golf courses, and open space. HB 1155 CONSERVATION EASEMENT TAX CREDIT (Rep. Spradley, R-Beulah, Sen. Owen, R-Greeley) creates an income tax credit (not to exceed $100,000) for any person who donates all or part of a perpetual conservation easement to a governmental entity or a charitable organization. This act takes effect on January 1, 2000. The Sierra Club supported SB 15 and HB 1155. Both have been signed into law.
Two comprehensive land use bills never advanced beyond the committee level. SB 107 LOCAL GOVERNMENT GROWTH MANAGEMENT (Sen. Pascoe, D-Denver) was killed by a 4 to 3 vote of the Senate Local Government Committee. SB 211 COLORADO RESPONSIBLE GROWTH ACT (Sen. Sullivant, R-Breckenridge) passed that committee, but was killed by the Senate State, Veterans, & Military Affairs Committee. To date, legislators have refused to seriously consider any bills that would make meaningful changes in Colorado’s land use laws. This, in spite of statewide concern about development and growth.
Supported by the Sierra Club, SB 136 COLORADO NATURAL AREAS COUNCIL (Sen. Dennis, R-Pueblo West, Rep. Young, R-Lamar) passed easily and has been signed by Governor Owens. This bill repeals the sunset date and continues until July 1, 2004, the council of advisers who evaluate sites for inclusion in the Colorado Natural Areas Program. Also supported by the Sierra Club, HB 1328 LOCAL GOVERNMENT GROWTH ASSISTANCE (Rep. George, R-Rifle) did not fare so well. This was the sponsor’s fourth attempt to create a pilot program for the sharing of state grants and loans between counties that benefit from growth and counties that subsidize growth. For the first time, this bill was debated on the House floor, where it became linked to expansion of the Denver Convention Center. HB 1328 passed the House on Second Reading, but was lost on Third Reading (31 to 34).
Opposed by the Sierra Club, HJR 1020 OPPOSE COLORADO WILDERNESS ACT (Rep. Hoppe, R-Sterling, Sen. Dennis, R-Pueblo West) was adopted by both the House and Senate. (Joint resolutions need not be signed by the governor and cannot be
vetoed.) HJR 1020, presumably, expresses “the will of the legislature” which, in this instance, is opposition to the BLM wilderness bill recently introduced by U.S. Congresswoman Diana DeGette. The Sierra Club supports the DeGette proposal—1.4 million acres that have been determined by the BLM to meet the statutory requirements of the 1964 Wilderness Act. The House vote on HJR 1020 was a voice vote (unrecorded). The Senate vote was 22-12-1.
All four bills in this category were resurrected—either from previous years or, in the case of SB 218, from this year. SB 133 PROPERTY RIGHTS VIOLATION ATTORNEY FEES (Sen. Lamborn, R-Colorado Springs) had been attempted by the same sponsor in 1996. It was killed in a committee that year. This year, SB 133 was defeated on the Senate floor. The bill would have allowed a private citizen who prevailed in a real property controversy to recover attorney fees and costs, but did not extend the same opportunity to a governmental entity that prevailed. The defeat of SB 133 was the only good news involving takings legislation.
HB 1192 PROPERTY RIGHTS (Rep. Stengel, R-Littleton, Sen. Anderson, R-Lakewood) was identical to a bill that had passed and been vetoed by Governor Romer two years in a row (1996 and 1997). After passing the House this year by a vote of 39-25-1, HB 1192 was killed by the Senate Local Government Committee. Almost immediately it was reintroduced as SB 218 PROPERTY RIGHTS (same sponsors) and assigned by the Senate leadership to a “friendlier” committee. SB 218 passed the Senate by a vote of 19 to 16 and the House by a vote of 35-29-1. Governor Owens signed it into law on May 17.
The Sierra Club opposed all of the bills in this category. SB 218 upsets the balance in law that has existed between the rights of individual property owners and the rights of the community-at-large. It makes it more difficult for local governments to exercise their legitimate land use authority by raising the burden of proof by which they must support their actions, and by creating a procedure for contesting decisions that parallels a procedure already in existence.
As introduced, HB 1280 INVESTMENT RECOVERY ACT (Rep. McPherson, R-Aurora, Sen, Lamborn, R-Colorado Springs) was similar to another bill that had been vetoed by Governor Romer in 1997. HB 1280 would have allowed the “vesting” of a developer’s property rights during the preliminary stages of the development process—so early as to make public input meaningless. If any changes had been demanded subsequent to the point of “vesting”, the developer would have been entitled to claim compensation from the public. HB 1280 was significantly amended during its passage through the House and Senate but, in its final version, it was still objectionable to the Sierra Club. It passed the House by a vote of 36-28-1 and the Senate by a vote of 20-14-1. Governor Owens signed it into law on May 24.
Although this is an extremely important resource area, there was little legislative activity this year. HB 1050 WATER PROJECT DEVELOPMENT PROCESS (Rep. Smith, R-Grand Junction) was a second attempt by the sponsor to create a process whereby the state could plan for the development of water projects. The Sierra Club supported the idea of local watershed planning groups to identify needs in their respective basins, but opposed the subsequent takeover of the process by the state. HB 1050 did not move beyond the House Agriculture, Livestock, & Natural Resources Committee. The first good environmental bill to pass was HB 1054 WATER CONSERVATION SUNSET DATES (Rep. Gotlieb, R-Denver, Sen. Chlouber, R-Leadville). This measure repeals the sunset dates and continues indefinitely a number of water conservation programs that have proven their effectiveness. HB 1054 passed the House and Senate unanimously and Governor Owens signed it on March 5.
The three bills in this category—targeted at the Division of Wildlife (DOW) and opposed by the Sierra Club—illustrate a state agency under siege by legislators and special interests. SB 214 FUNDING THE WILDLIFE EDUCATION COUNCIL (Sen. Dennis, R-Pueblo West, Rep. Johnson, R-Fort Collins) advances the interests of an external “advisory council” that was created in ’98 to promote hunting and fishing. As DOW revenues fall (and popular programs such as Watchable Wildlife are being curtailed) it is difficult for environmentalists to see some of the remaining dollars be used for promoting only the consumption of wildlife. However, nonconsumptive users will probably always be fighting for “a place at the table” as long as DOW’s primary source of funding is license fees. SB 214 passed the Senate by a vote of 24 to 11 and the House by a vote of 56 to 9. It was signed into law on June 4.
The last bill that was resurrected from a previous session was HB 1229 REINTRODUCTION OF ENDANGERED SPECIES (Rep. Johnson, R-Fort Collins, Sen. Wattenberg, R-Walden). This bill was vetoed by Governor Romer in 1995. HB 1229 requires that the legislature act by bill specifically naming the threatened or endangered species, and the manner of its introduction or reintroduction before any state or local government agency can participate in such activity. This bill is another slap at the authority of DOW, and the wishes of the majority of Coloradans who support endangered species recovery. It substitutes politics for the expertise of biologists and other wildlife professionals. HB 1229 passed the House by a vote of 41-22-2 and the Senate by a vote of 20-13-2. Governor Owens signed the bill into law on April 22.
HB 1313 WILDLIFE COMMISSION OPERATION (Rep. Alexander, R-Montrose, Sen. Teck, R-Grand Junction) began as a bad bill (favoring sportsmen and outfitters) and took a sharp turn late in the process that made it even worse. As drafted, HB 1313 eliminated the three members of the Wildlife Commission that represent the “public at large”. In its final version, two of those members have been restored, however, the heads of two executive departments (Agriculture and Natural Resources) have been added as ex-officio Commission members. Such additions create a situation whereby the citizens on the panel may be intimidated by the Cabinet officers. Late in the process (beyond the point of public testimony), HB 1313 was further amended to change DOW from a Type 1 to a Type 2 agency—reducing its autonomy and placing it more firmly under the control of Natural Resources. (The Wildlife Commission, itself, remains a Type 1 entity, which raises questions about the coordination of future decision-making.) HB 1313 passed the Senate by a vote of 30-3-2 and was readopted unanimously by the House. Governor Owens signed the bill on May 17.
|SIERRA CLUB POSITIONS - ENVIRONMENTAL LEGISLATION - 1999
Oppose SB 43 Protect Farms Against Nuisance Suits Chlouber, MIller Signed
Oppose HB 1384 Control of Odor Emissions Spradley AGR PI
Oppose SB 117 Remove Clean Vehicle Fleet Plan from SIP Dennis, Taylor Signed
Oppose SB 145 Air Quality Standards for Public Lands Wattenberg, Taylor Signed
Support HB 1181 Emissions Requirements for Govt Vehicles Plant, Dennis Signed
Support HB 1193 Air Pollution Permit Modifications Saliman HEA PI
Oppose HB 1297 Mobile Source Air Pollution Program Paschall APP PI
Oppose HB 1351 Regional Haze Pollution Mitchell, Teck Signed
Support SB 9 Alt Fuels Tax Exempt Credit & Rebate Evans, Sullivant FIN PI
Support HB 1120 Environ. Protection Tax Incentives Plant FIN PI
Oppose HB 1249 Severance Tax Modifications Spradley, Wattenberg Signed
Support HB 1271 Alt Fuels Tax Exemption Credit & Rebate Sullivant(Paschall), Evans Signed
Support HB 1343 Oil & Gas Conservat. Comm. Service Kaufman H Lost
Support HB 1064 Environmental Justice Clarke LG PI
Oppose SB 70 Environmental Audit Privilege Powers, Taylor Signed
Support SB 138 Community Pollution Prevention Thiebaut SA PI
Support SB 20 Hazardous Substance Response Moneys Phillips, Zimmerman Signed
Support HB 1056 Haz Substance Emergency Response Berry, Phillips Signed
Support HB 1213 Extend Voluntary Clean-up Act Spradley, Feeley Signed
Support SB 15 Expand County Lease Purchase Authority Phillips,Witwer Signed
Support SB 107 Local Govt Growth Management Pascoe LG PI
Support SB 157 County Land Divisions Weddig AGR PI
Support HB 1155 Conservation Easement Tax Credit Spradley, Owen Signed
Support HB 1177 Limits on Tax Incentives Zimmerman LG PI
Support HB 1205 Open Space Donation Tax Credit Gordon FIN PI
Support SB 76 County Inits Referenda & Ref Measures Lamborn LG PI
Support SB 105 County Noise Regulation Phillips LG PI
Support SB 136 Colorado Natural Areas Council Dennis, Young Signed
Support EB 209 Authority for County Referred Measures Lamborn LG PI
Support HB 1328 Local Govt Growth Assistance George H Lost
Oppose HJR 1020 Oppose Colorado Wilderness Act Hoppe, Dennis Adopted
Oppose SB 133 Property Rights Violation Atty Fees Lamborn S Lost
Oppose SB 218 Property Rights Anderson, Stengel Signed
Oppose HB 1192 Property Rights Stengel, Anderson S LG PI
Oppose HB 1280 Investment Recovery Act McPherson, Lamborn Signed
Support SB 121 Neighborhood Notice Transport. Proj Nichol TRA PI
Support HB 1294 New District Area Petition or Election Ragsdale, Lacy Signed
Oppose HB 1050 Water Project Development Process Smith AGR PI
Support HB 1054 Water Conservation Sunset Dates Gotlieb, Chlouber Signed
Support HB 1286 Ground Water Quality Process Gordon AGR PI
Oppose SB 214 Funding the Wildlife Education Council Dennis, Johnson Signed
Oppose HB 1229 Reintroduction of Endangered Species Johnson, Wattenberg Signed
Oppose HB 1313 Wildlife Commission Operation Alexander, Teck Signed
Oppose HJR 1051 Amending the Endangered Species Act Johnson, Hillman Adopted
PI = Postponed Indefinitely (Killed) by a Committee
Scorecard House and Senate 1999
August 1999 Online Newsletter - Peak & Prairie Home Page - Rocky Mountain Chapter Home Page