Colorado’s Supreme Court on Monday saddled cities with responsibility for century-old underground toxic messes from coal gas plants that made fuel for lanterns and street lights, ruling in favor of an arts and yoga center that for six years pushed city officials to clean up coal tar in central Colorado Springs.
Cities can be held responsible for coal-tar cleanups, the justices ruled in a 21-page decision, rejecting municipal claims of sovereign immunity.
“To the extent decisions like this protect public health, they send an important message,” said Michael Kosnett, a toxicologist at the University of Colorado’s school of public health. “Things like this have to be addressed. The presence of chemicals creates the potential for harm.”
This decision will govern future cases and may reveal the posture of Colorado’s high court on environmental matters before it, including a review of whether state regulators of the oil and gas industry must prioritize protection of people and the environment.
Cancer-causing waste from coal gasification plants has contaminated soil and water nationwide, according to a U.S. Environmental Protection Agency assessment. In Colorado, known sites also are located in Boulder, Sterling and La Junta. A disputed cleanup near the Dushanbe Tea House in downtown Boulder, led the city to federal court where it forced Xcel Energy to pay $3.6 million.
Sovereign immunity generally bars lawsuits against local governments for harm they cause. In their analysis, high-court justices observed that state law recognizes the concept of continuing harm from pollution decades ago.
“We have places around the state where pollution was created years ago but only now is surfacing,” said attorney Randall Weiner, who represented the nonprofit Smokebrush Foundation arts and yoga center. “Had the Supreme Court let cities off the hook, it would have opened the door to more problems. Now in Colorado, cities that generate gas pollution cannot escape their responsibility for it.”
Smokebrush ran yoga and arts programs near the center of Colorado Springs, north of the city’s coal-fired Drake power plant and the America the Beautiful Park where city leaders envision a museum celebrating the Olympics.
Starting around 1890, private companies ran a plant where they burned coal to produce a gaseous fuel. In 1925, the city bought the property and ran the plant until 1931. Coal-burning to create gas produced coal tar, which contains hazardous chemicals that contaminated soils. The city dismantled the plant in the 1960s and built a city “gas administration building” and other structures.
The court ruling found the city immune from Smokebrush’s claims about asbestos contamination of air. But justices remanded the coal-tar claims to El Paso County District Court.
“Our concern is having the contaminated soil safely and carefully cleaned up, not just for our sake but for the sake of people who go to America the Beautiful Park,” Smokebrush owner Kat Tudor said.
“Our expectation is that the city will take responsibility for the contamination on their property and our property and clean it up,” she said. “It will mean a great deal of peace of mind. It will mean property can be enjoyed by people without any danger of being contaminated.”
