Polis commuting mandate on employers moving ahead; written comments open into August

June 21, 2021 By Sherrie Peif

DENVER — The state agency tasked by Gov. Jared Polis to create a mandate requiring large employers to promote commuting alternatives to driving in a car to their employees is taking written comments on the regulatory scheme, and is scheduled to begin the public hearing comment portion of the rule making process in August.

The new regulations– which bypass the legislative process —are being created by the Colorado Department of Public Health and Environment (CDPHE), a state agency under the direction of Polis, and implemented under the authority of the Colorado Air Quality Control Commission (AQCC), which is made up of Polis appointees.

CDPHE is currently taking written public comments concerning those rules until 11:59 p.m. on Aug. 3, and a virtual public comment hearing is scheduled for 4:30-7:30 p.m. on Aug. 18. More details on the hearing can be found on CDPHE’s website.

Earlier this year, Polis told CDPHE to propose new regulations surrounding how employees get to and from their places of employment. Those rules will require companies in the Denver and Front Range areas with more than 100 employees create an Employee Transportation Reduction Plan (ETRP) aimed at reducing air pollution by offering commuting alternatives for those employees who currently drive themselves to work.  Businesses will be forced to hire a transportation manager to implement their plan.

It comes after a 2019 law that requires a 26% reduction in greenhouse gas emissions by 2025 and a 90% reduction from 2005 levels by 2050.

Kelly Sloan, executive director of the Freedom to Drive Coalition said there have been a few changes that have “watered down” the rule, but it is still a bad rule that his organization will continue to fight for multiple reasons, he said.

“The whole thing is bureaucratic absurdity at its worst,” Sloan said. “The issue is this is rule making has not gone through the legislature. It has not seen the inside of the committee room or debated on the floor, but it will impact 900,000 people.”

Polis’ goal is for large companies to reduce the number of individual drivers to 75 percent or less by 2022 and 60 percent or less by 2024.

“So, in three years they will essentially tell 400,000 people they can’t drive themselves to work. This is the demon child of (House Bill 19-1261). This is what happens when the legislature grants all its authority to these executive departments, none of these commissioners are accountable to the voters,” said Sloan.

The Colorado Regional Air Quality Council (CRAQC) has estimated an annual RTD transit subsidy would cost the area’s 800 employers who have greater than 250 employees each nearly $200 million a year (about $250,000 per year, per employer).

However, the new rules would apply to all businesses over 100 employees, which CDPHE estimates there are 2,763, totaling more than 875,000 employees, questioning whether the alternative transportation infrastructure needed to move that number of new riders, twice a day on the right time schedules is possible.

The new rules still apply to any business with more than 100 employees, but only those in nine counties the CDPHE has determined is not in attainment with its pollution standards. Those counties are approximately everything from Colorado Springs on the south to Wellington on the north and Estes Park on the West to Washington County on the east, including all metro Denver counties, Douglas County, Larimer County, Boulder County and Weld County.

“As it stands, they’ve also taken out the civil penalties to businesses if employees don’t follow the plan, but I’d bet there is going to be some push back to that from the environmental organizations,” Sloan said.

Sloan also notes that some of the suggested alternatives to commuting by car, such as telecommuting and using mass transit, simply don’t work for large numbers of workers and are neither simple nor practical as supporters believe.

“If you are in a sector like hospitals or airports, you can’t work from home,” Sloan said. “You can’t build airplane parts from your living room. An emergency room nurse can’t work from home. And most businesses don’t happen to be located on a rail line. Colorado is not Manhattan.”

Additionally, Sloan said there is simply a basic liberty argument against this.

“What about the single mom who has to drop one kid off at daycare and another at school and then pick them up and on the way home has to pick up groceries,” Sloan said. “What if you get a call your kid got sick at school, and now you don’t have your vehicle. What are you supposed to do, hop on five different busses and get out your magic carpet?”

Sloan said there needs to be a rigorous cost benefit analysis done on this proposal because he sees those businesses on the bubble of the employment levels going a different direction in how they would handle the new rules.

“If you are a business of 104 people and you’re looking at this from the practical side, are you tempted to look around and see if you can find efficiency to get rid of five employees?