Marijuana, Construction Defects, Fracking On Tap

Colorado Legislature Kicks Off Jan. 11

By Penfield W. Tate III

Special to the GPHN

Holiday decorations remain, decorating houses and yards. Hot apple cider and holiday cookies (my favorites) remain fresh in our minds from office gatherings and holiday house parties. Denver has finally seen its first snowfall of the year, and the temperature continues to drop. Winter is fully upon us. So also, is the start of the 2017 legislative session.

Last year delivered one of the most memorable presidential elections in our history –not necessarily in a positive fashion. It was the most vicious, insulting and distressing election I have witnessed in my lifetime. Of greater concern, is the apparent “legitimizing” of the absence of decorum and civility in our interpersonal discourse, and most particularly in the social media cyberspace of Facebook, LinkedIn and Twitter.

That lack of civility at the presidential campaign level filtered down through U.S. congressional and senate races, as well as infecting state legislative races. And so, come Jan. 11 and the kickoff of Colorado’s legislative session, be prepared for one of the most confrontational and distressing legislative sessions in our recent history.

Control of Colorado’s General Assembly remains divided as before: Republicans are in control of the Senate and Democrats in control of the House. The tenor, tone, and character of the 2016 election cycle are sure to impact and affect the work that is done (or not done) in the General Assembly.

In addition to new faces throughout the body, we will see new leadership. Rep. Crisanta Duran of Denver will serve as the first Latina Speaker of the House, and Republican Kevin Grantham of Cañon City will serve as President of the Senate. In addition, Democrats elected Representative KC Becker of Boulder as House Majority Leader, while Republicans elected Rep. Patrick Neville as their minority leader.

Senator Chris Holbert of Parker will serve as senate majority leader and Senator Lucia Guzman will serve as senate minority leader. In an unusual occurrence, while the caucuses were selecting their new leadership, Rep. Jovan Melton of Aurora helped lead a protest on the Capital steps criticizing Republican leadership for electing pro-Trump legislators whose primary agenda was to stop the work of government and to impede any progress on behalf of the state.

Tensions could not be higher and lines could not be more clearly drawn. This is going to be a difficult legislative session as clearly the antipathy of the presidential and general election has filtered into the upcoming session.

Wrangling over marijuana

As has been the case since voters initially approved its legalization, marijuana may well dominate much of the legislative session. Since Colorado voters legalized marijuana, there has been a tension between the state and the federal government on marijuana policy. Federal law still considers marijuana a Schedule 1 controlled substance, and its use and possession is considered a crime. Moreover, transporting marijuana across state lines is, as it always has been, a federal offence.

The tension between the need for legally licensed marijuana businesses to access the financial system through banks, credit unions or even credit cards, and federal and legal regulations that deny access, remains problematic. In addition, President-elect Trump has been clear about his opposition to legalized marijuana for medicinal or personal use.

Partially as a result of his statements, numerous proposals are in the works regarding further regulation of the marijuana industry and possession and consumption. In the face of this drive to further regulate marijuana is the simple fact that sales continue at record levels, resulting in increased tax revenues at the local and state level.

Indeed, Gov. John Hickenlooper has proposed using some of the state’s marijuana tax revenues to fund initiatives to combat homelessness.

Other legislative proposals include tightening regulations on marijuana grows for medicinal and personal use, as well as outright bans in some instances. Stepped up law enforcement of what are identified as illegal marijuana grow operations are increasingly being reported.

Similarly, a reported explosion in black market trafficking of marijuana to other states is also making headlines. In the wake of the signals coming from Washington D.C., state legislators will be looking to place further restraints on the industry, increase law enforcement efforts, and work to draw less attention from the federal government.

Fracking and renewable energy

Other signals from President-elect Trump indicate that the approach to addressing climate change may be left to the states. If this is the case, the General Assembly may see renewed interest in regulating fracking or other fossil fuel development.

In addition, legislative proposals promoting further investment in renewable energy development and technologies may wind their way through the session. A likely outcome is that the pro-fracking and fossil fuel development measures may originate in the Senate only to die in the House. Similarly, the renewable energy efforts will likely originate in the House only to die in the Senate.

Even with the Governor’s intervention, it is likely that no compromise will be reached or perhaps even sought. Given the recent election results, it is highly likely that the oil and gas industry may sense a favorable trend with the electorate, and instead pursue its own initiated measure for the 2018 election cycle leaving it to play defense on legislation this session.

Wrangling over construction defects

The population boom in Colorado continues. A recent Denver Post report anticipated that Colorado’s population would double by 2060. This population increase places several strains on state and local government, which may also play out in the legislative session.

First, the ongoing debate on how to reconcile the need for more affordable housing and the state’s current construction defects law will likely continue. In past sessions, compromises crafted at the last hour failed to receive support from competing extreme viewpoints.

Some legislators want the construction defects law amended or repealed so that developers can build more housing, including affordable housing. Opponents protest and argue that repealing the law will not compel developers to build more affordable housing and that they will build the housing that most profits them – market rate and luxury housing.

Expect a number of proposals to be introduced with, once again, no likely compromise being reached. Although the governor has expressed some interest on this topic, given his increasing lame duck status (he is term-limited from office in 2018) it is questionable whether he will venture into this fray.

Clean rivers and streams

The population crush has also begun to generate more focus on the continuing stress we are placing on our system of rivers and reservoirs. The competing demands of environmentally healthy streams and waterways and the need for water to support a growing population have never been more evident.

The Colorado Water Conservation Board recently sent an interim committee of the legislature a $25M proposal for a stream protection program. The hope is that by increasing action to save streams the state will meet its various environmental and economic development goals given the importance of the streams and the waterways to the recreational economy.

Expect legislation supporting this effort by CWCB and other legislation pertaining to trans-mountains diversion and enhanced conservation measures in urban and rural communities.

Replacing Obamacare?

The Affordable Care Act, commonly referred to as Obamacare, has its share of detractors and supporters. Chief among the detractors is President-elect Trump, and a host of Republicans in Congress who have vowed to abolish Obamacare. What they have not been successful in articulating is what will be stood up in its place to cover the nearly 20 million Americans insured through the program.

Many agree that Colorado’s exchange, Connect for Health Colorado, has performed better than most state exchanges. Indeed, it has seen a nearly 25 percent increase in enrollment over last year during the recent open enrollment period.

With nearly 208,000 Coloradans enrolled through the state’s exchange, there are likely to be legislative efforts to ensure the ongoing operation of the exchange or greatly soften any blow occasioned by changes in federal legislation.

The desires of the coming Trump administration to boost spending on infrastructure will also be a topic of conversation. Last session legislation was introduced to authorize extensive bonding for road and bridge infrastructure improvement and development. The measure was not successful, as a dedicated revenue stream could not be identified.

Given the early pronouncements from the Trump administration, this topic is likely to be revisited although the same difficulty will remain: where does the money come from? Or more importantly, what do we stop that we are now doing to finance the infrastructure improvements?

Pressures on the budget

Finally, speaking of revenue, the Joint Budget Committee continues to meet during the interim, the period between legislative sessions.

Little has been reported about the work of the JBC, but as a result of last year’s legislative session, the inability to remove the hospital provider fee or marijuana revenues from the application of TABOR, the constitutional provision restricting the growth of state revenue and spending, will continue to place pressure on the budget.

The holiday season – with friends and family and festivities and fun – has been a welcome respite from what promises to be a troubling legislative session.

Penfield W. Tate III is an attorney with Kutak Rock and serves on a number of nonprofit boards. He represented Park Hill in the Colorado House of Representatives from 1997-2000, and in the State Senate from 2001-February 2013. Tate’s adult daughter was born and raised in Park Hill, and he and his wife Paulette remain in the neighborhood.