Delay as policy: A double standard Colorado must answer

By RMV Editorial Board

Colorado is asking a court to decide whether doing nothing can amount to doing too much. In its lawsuit over frozen federal funding, the state argues that agencies crossed the line when they allowed congressionally approved programs to stall through delay and inaction. At some point, Colorado contends, refusing to decide becomes a veto Congress never granted.

That argument deserves to be taken seriously—and it raises an unavoidable question closer to home.

If delay is unlawful at the federal level, why has it become routine at the state level?

The standard Colorado is asking courts to enforce

In its lawsuit over frozen electric vehicle infrastructure funding, Colorado argues that process cannot be used to achieve outcomes lawmakers never voted on. Agencies, the state contends, may not slow-walk or indefinitely “review” projects in order to nullify statutory programs without repeal.

In other words, delay itself can function as cancellation.

Colorado is right about that.

What the lawsuit does not address is whether the state applies the same standard to its own regulators, particularly in energy policy, where outcomes are increasingly shaped not by votes or bans, but by cumulative process.

July 12, 2023: Executive direction, on the record

That contradiction came into sharp focus during the Energy and Carbon Management Commission’s inaugural meeting on July 12, 2023.

During that meeting, ECMC Commissioner John Messner read language from a letter sent by Gov. Jared Polis outlining emissions goals and calling for “robust administrative action.”

The letter was not framed as abstract vision or optional guidance. It was treated as direction.

“The best strategy to achieve a goal is to set clear, measurable targets and take robust administrative action to facilitate meeting those targets,” Messner read from the governor’s letter.

That phrase—robust administrative action—matters. It frames process itself as the mechanism for achieving outcomes, even before new rules are adopted.

Decisions today, rules tomorrow

Throughout the July 12 meeting, commissioners openly discussed how that executive direction should influence their work, even while acknowledging that the specific rules to carry it out were not yet in place.

“We’ve received a directive from the governor… and decisions that we make today will inform future rulemakings,” Messner said.

He later articulated the disconnect between written rules and policy expectations.

“The application may meet the rules… but I don’t think it meets the intent of what the industry has indicated it would be able to accomplish as per the governor’s directive,” Messner said.

This was not a procedural footnote. It shows how policy goals are being used to steer decisions even before they are written into law.

Goals outside the rules

ECMC Chair Jeff Robbins acknowledged that the policy goals outlined by the governor were not yet embedded in regulation.

“OGDPs are to be reviewed based upon the rules we have in place now,” Robbins said.

He then added a critical clarification.

“Those goals are not within our rules today.”

Together, those statements reveal the core contradiction: a commission charged with applying current rules while simultaneously operating under a mandate to pursue outcomes not yet written into law.

How ‘robust administrative action’ works in practice

What the commission described in theory has produced measurable consequences in practice.

Colorado didn’t shut down oil and gas with a single vote. It slowed it, narrowed it and complicated it. Oversight multiplied. Reviews stretched out. Rules changed along the way. The effect has been the same: lawful projects that are increasingly difficult to move forward.

Rocky Mountain Voice has documented this pattern extensively. 

Operators have described years-long permitting delays, repeated requests for additional information, changing interpretations of rules, and enforcement actions that escalate without formal denials. 

Well starts collapsed after the SB19-181 mission change took effect. Permitting volumes fell sharply. Production has remained afloat largely because legacy wells continue producing, not because new development is thriving.

Shutting something down does not always require a ban. Sometimes it requires time.

The contradiction Colorado has not answered

Colorado’s lawsuit argues that federal agencies may not use delay to nullify programs Congress approved.

Yet the state has embraced a regulatory model in which delay, review and evolving expectations are openly acknowledged as tools for advancing policy goals, sometimes ahead of rulemaking, sometimes alongside it.

The contradiction is not partisan. It is structural.

If “robust administrative action” is a legitimate way to advance climate policy in Colorado, the state must explain why similar administrative tactics are unlawful when used by federal agencies it disagrees with.

There is an important distinction the Polis administration would prefer not to address.

When President Trump issued an executive order on energy policy, he did so through a formal, public mechanism that explicitly invoked constitutional authority, acknowledged statutory limits and was immediately subject to judicial review.

By contrast, the governor’s climate directive was delivered through a letter—an internal communication with no independent legal force—yet was treated by state regulators as guidance shaping real-world outcomes before any corresponding statute or rule existed.

Colorado cannot credibly argue that one form of executive direction is unlawful abuse of power while the other is responsible governance. 

Process matters. Authority matters. Transparency matters.

Rule of law cuts both ways

Colorado is right to defend legislative authority against executive overreach.

That defense is laughable when the state adopts the very conduct it now urges courts to prohibit. The rule of law is not optional, and it is not situational.

Delay cannot be unlawful sabotage in federal court and prudent governance at home. That is not consistency. It is selective application of principle.

This is not a matter of ideology. It is a matter of governance.

Administrative paralysis used to sidestep legislative limits is either an abuse of power or policy by another name. Colorado must choose which it believes—and live with the precedent it sets.