EPA ozone rule looms large in swing state

By Timothy Cama - 04-29-16 06:00 AM EDT

The Denver area is playing a starring role in the national fight over President Obama's new ozone pollution rule, with potential implications for a crucial Senate race.

The energy industry and other opponents of the ozone rule argue that the Mile High City will suffer serve economic damage from the Environmental Protection Agency's (EPA) regulation, which is meant to reduce smog.

They see fertile ground for their cause in Colorado, a presidential swing state where Sen. Michael Bennet is considered the most vulnerable Senate Democrat running for reelection this year.

The rule's supporters note that Denver has repeatedly failed to meet national air quality standards over the years, and say its reputation for polluted air presents an opportunity to make the case for government regulation.

But the Center for Regulatory Solutions, an industry group that's been at the forefront of the fight against the ozone rule, has repeatedly highlighted and targeted Denver in its campaigns, characterizing the advocacy as amplifying local opposition.

"Moving the standard down to where the far left wants it to be has received significant pushback in Colorado," said Matt Dempsey, spokesman for the Center for Regulatory Solutions (CRS).

"That's why you see such strong pushback from state, local and county officials, and elected representatives, because they have been on top of this issue."

The National Association of Manufacturers (NAM), the American Petroleum Institute (API) and others have also focused significant efforts on Denver, both to pressure local leaders to oppose the rule and to show national leaders the area's pain.

The EPA's rule from last year lowered the acceptable amount of ozone in ambient air to 70 parts per billion, from the 75 parts per billion set in 2008. Ozone is the main component in smog, and is linked to respiratory ailments like asthma.

Areas that exceed the standard have to come up with ways to clean their air. That usually means reducing the pollutants from fossil fuel burning that turn into ozone, something that could hurt the energy industry and sectors that rely on energy.

In December, the EPA said Denver is unlikely to meet the new standard by 2025, the only area outside of California to get the honor. In its annual report on air pollution released in April, the American Lung Association, which supports the EPA's rule, ranked the Denver area as the 8th worst for ozone in the country, saying its air improved since last year, but is still worse than two decades ago.

Due to its manufacturing base, the oil and gas boom, population growth and other factors, Denver produces many of the pollutants that become ozone. But owing to the Rocky Mountains, wind patterns and similar factors, the city has had difficulty cleaning its air.

"There are a number of drivers for ozone in the air, and so far we haven't gotten a handle on how to ratchet that back and come into compliance with even the old standards, or even the new standard," said Justin Pidot, an environmental law professor at the University of Denver. "So that causes handwringing."

Business interests see those factors as working in their favor as they oppose the rule.

"If you're a manufacturer in Colorado, and you're looking to expand your product line or open a new facility, and you have to comply with a federal standard that is unattainable, in that part of the country, you can't get your project done," said Greg Bertelsen, senior director for energy policy at NAM. "You're really hamstrung."

NAM and API are both suing the EPA in federal court to have the regulation overturned, and lobbying Congress to change or reverse it.

Bennet and Gov. John Hickenlooper (D) are key targets for business groups in the ozone fight. Both are moderate Democrats who've spoken out with concerns about the rule, and the rule's opponents have highlighted their comments as breaking with Obama.

Bennet told The Hill that the EPA needs to recognize how much of Colorado's pollution is blown in from other states or countries.

"We need a rule that is going to work for Colorado, and recognizes that a lot of these issues in our air aren't coming from Colorado, it's not produced in Colorado," he said. "So we're going to have to get a rule that actually works."

Asked if the rule that the EPA put out works, Bennet said, "well, we're examining it."

Shortly before the rule was made final last year, Bennet said at an oil industry event that he was "deeply concerned about it."

Hickenlooper said in March that "it would be a great idea" if the ozone standard were suspended.

But he's also defended the rule. "Clean air is too important to Colorado to become a partisan issue," he said. "I am convinced as much as I ever have been that this is in the self-interest of the state."

Bennet has made a name for himself as a moderate on energy and environmental policy, in part by supporting the Keystone XL pipeline. But the ozone rule could still hurt him if his eventual GOP opponent uses it to tie him to Obama's regulatory agenda.

"If played correctly, some political points can be made here for sure, but how salient this particular issue will be compared to the nationalized politics that has driven down-ballot politics in recent presidential election years, that's hard to forecast," said Kyle Saunders, a political science professor at Colorado State University.

There are currently five Republicans vying to face Bennet, and none have made ozone a major point of their campaign yet.

Public health and environmental advocates say the energy industry has it all wrong with its Denver strategy.

"The polluters may well be looking at Colorado as their Alamo, the place to take their last stand," said Pete Maysmith, executive director of Conservation Colorado. "Because once a clean air policy or regulation is moving forward in Colorado, which is a purple state politically and has a heavy and significant fossil fuel industry presence, it's kind of game over elsewhere."

Maysmith, who grew up in Denver and has numerous stories going back years about the city's thick, brown air, labeled the efforts to highlight Democratic opposition as "grasping at straws."

"I think they're overplaying their hand. I think you might even detect a whiff of desperation in them doing that," Maysmith said. Hickenlooper, who was within 4 percentage points of losing the 2014 election, has repeatedly said he wants Colorado to have "the cleanest air in the nation."

Paul Billings, head of advocacy for the American Lung Association, said the energy sector is probably fighting the ozone rule so much because it knows it's a major part of the problem.

"What we're seeing is that the additional emissions from oil and gas operations - fugitive emissions, additional emissions associated with the diesel from vehicle traffic - all these things are contributing to the ozone problem," he said.

"It's a manmade problem that needs manmade solutions, cleaning up these sources and working to drive down pollution levels."