148 P.3d 960 (Utah 2006), 20050455, Utah Chapter of Sierra Club v. Utah Air Quality Bd.

Docket Nº:20050455.
Citation:148 P.3d 960, 2006 UT 74
Opinion Judge:On Certification from the Utah Court of Appeals DURHAM, Chief Justice:
Party Name:UTAH CHAPTER OF the SIERRA CLUB, a non-profit organization, and Grand Canyon Trust, a non-profit organization, Petitioners, v. UTAH AIR QUALITY BOARD, an agency of the State of Utah, and Sevier Power Company, Respondents.
Attorney:Joro Walker, Sean Phelan, Salt Lake City, for petitioners., Mark L. Shurtleff, Att'y Gen., Fred G. Nelson, Paul McConkie, Asst. Att'ys Gen., Salt Lake City, Fred W. Finlinson, Saratoga Springs, for respondents.
Case Date:November 21, 2006
Court:Supreme Court of Utah
 
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Page 960

148 P.3d 960 (Utah 2006)

2006 UT 74

UTAH CHAPTER OF the SIERRA CLUB, a non-profit organization, and Grand Canyon Trust, a non-profit organization, Petitioners,

v.

UTAH AIR QUALITY BOARD, an agency of the State of Utah, and Sevier Power Company, Respondents.

No. 20050455.

Supreme Court of Utah

November 21, 2006

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Joro Walker, Sean Phelan, Salt Lake City, for petitioners.

Mark L. Shurtleff, Att'y Gen., Fred G. Nelson, Paul McConkie, Asst. Att'ys Gen., Salt Lake City, Fred W. Finlinson, Saratoga Springs, for respondents.

On Certification from the Utah Court of Appeals.

DURHAM, Chief Justice.

INTRODUCTION

¶ 1 The Executive Secretary of the Utah Division of Air Quality granted a permit to the Sevier Power Company authorizing the construction and operation of a 270-megawatt coal-fired power plant in Sevier County, Utah. Shortly thereafter, the Sierra Club filed a petition before the Utah Air Quality Board (the Board) objecting to the permit and seeking to intervene in all related proceedings. The Board denied the Sierra Club's petition, declaring that the Sierra Club did not have standing. We hold that the Sierra Club does have standing to challenge the permit. In so concluding, we take the opportunity to reiterate and clarify Utah's standing law.

BACKGROUND

¶ 2 On October 12, 2004, the Executive Secretary of the Division of Air Quality signed an approval order (the order) granting a permit to the Sevier Power Company to construct and operate a 270-megawatt coal-fired power plant (the plant) near Sigurd, in Sevier County, Utah. Sigurd is located near the Colorado Plateau, an area known for stunning geography and outdoor recreational sites such as Boulder Mountain and Capitol Reef National Park.

¶ 3 After the Executive Secretary signed the order, two parties sought to intervene.1 On November 1, 2004, the Sevier County Citizens for Clean Air and Water (the Citizens' Group) filed a Request for Agency Action with the Board. The Utah Chapter of the Sierra Club and the Grand Canyon Trust (collectively, the Sierra Club) followed on November 12, 2004, by filing a separate Request for Agency Action. The Sierra Club sought review of the order, claiming that the Executive Secretary's approval of the plant failed to comply with the federal Clean Air Act, 42 U.S.C. §§ 7401 to 7671q (2000), the Utah Air Conservation Act, Utah Code Ann. §§ 19-2-101 to -127 (2003 & Supp. 2005), and the Utah Administrative Procedures Act, Utah Code Ann. §§ 63-46b-0.5 to -23 (2004 & Supp. 2005). The request asked the Board to declare the order illegal, revoke the order, and alternatively or additionally remand the

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order to the Utah Division of Air Quality with instructions that the agency undertake the proper analysis and comply with all applicable laws. As required by the Utah Administrative Code, the Sierra Club filed a Statement of Standing and Petition to Intervene in conjunction with its Request for Agency Action. Utah Admin. Code r. 307-103-6(3) (2006). In support of its Statement of Standing, the Sierra Club filed the affidavits of Brian Cass, Cindy Ciciliano Roberts, and Howard Cherry, persons belonging to either the Sierra Club or the Grand Canyon Trust.

¶ 4 Mr. Cass, a member of the Grand Canyon Trust, is an Arizona resident who owns property and a home in Boulder, Utah, which is located to the southeast of Sigurd. Mr. Cass is a videographer who has filmed and produced documentaries on the Colorado Plateau. Additionally, he uses the Colorado Plateau for recreation. In his affidavit, Mr. Cass alleges the plant will emit pollutants that will impair visibility around his home and on the Colorado Plateau and that this decreased visibility will affect his livelihood as a videographer. Moreover, Mr. Cass states that the emissions from the plant will contribute to global warming and climate change, which will further adversely impact the Colorado Plateau's ecosystem. His affidavit also alleges that, if approved, the plant's emissions will impair his health and his family's health and decrease the value of his property.

¶ 5 Ms. Roberts lives in Sigurd and is a member of the Sierra Club. She also belongs to the Citizens' Group. Ms. Roberts and her husband live on a 25-acre farm that is located less than one mile from the proposed site. They also farm an additional 328 acres, 133 of which they own and 195 of which they lease, approximately four miles from the proposed site. In addition, Ms. Roberts and her family use the Sigurd area for recreational activities, including birdwatching and fishing. Ms. Roberts' affidavit claims that if the plant is approved she will suffer injury because the plant will emit pollutants that will contaminate the soil and damage her crops, thereby jeopardizing her livelihood. Likewise, she argues that the plant's emissions will contaminate the waterways that she and her family use to irrigate the crops they later eat. Ms. Roberts also asserts that the emissions from the plant's construction and operation will negatively affect her health as well as the health of her children and neighbors. She believes that if built, the plant's emissions will diminish visibility in the area, increase the number of pollution-related inversions, and decrease her property values.

¶ 6 Finally, Mr. Cherry resides in Sevier County and is a member of the Sierra Club. His current home is about eight miles from the proposed plant site, and he regularly travels to Sigurd. Mr. Cherry's affidavit states that he is concerned that the plant's emissions will cause adverse health effects, including an increase in heart and lung problems. He also maintains that the plant will increase the severity of the area's inversions. For the most part, Mr. Cherry expresses general concerns about the adverse health effects and the inversions. He does allege one specific injury, however, claiming that "[he] will be adversely affected by the proposed power plant because visibility will deteriorate in the area."

¶ 7 On April 13, 2005, the Board held a hearing to determine whether the Citizens' Group and the Sierra Club had standing to intervene. The Board granted the Citizens' Group's petition, finding the Citizen's Group was "the most appropriate entity to bring the action" and that it had alleged "a distinct and palpable injury" resulting from the order. However, the Board denied the Sierra Club's petition. According to the Board, the Sierra Club had not demonstrated a distinct and palpable injury because its members' allegations of adverse public health effects, decreased visibility, and environmental harms were too general, the Sierra Club did not proffer any evidence that the alleged adverse impacts were caused by the order, and the affidavits did not demonstrate a connection between the alleged improper permit and a particular injury to the three affiants. Moreover, the Board found that the Sierra Club was not the most appropriate party and held that the issues were not a "matter of significant public importance that would warrant granting the petition to intervene."

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¶ 8 Following the Board's denial, the Sierra Club filed a Petition for Review with the Utah Court of Appeals, seeking review of the Board's decision to deny standing. The court of appeals certified the question of the Sierra Club's standing to this court pursuant to Utah Code section 78-2a-3(3) (2002). We have jurisdiction under Utah Code section 78-2-2(3)(b) (2002).

STANDARD OF REVIEW

¶ 9 The Utah Administrative Procedures Act (the Act) governs our review of a state administrative agency's decision. Utah Code Ann. §§ 63-46b-0.5 to -23 (2004 & Supp.2005). Where, as in this case, a party is seeking review of a formal agency action, Utah Code section 63-46b-16 supplies the applicable standards of review. Id. § 63-46b-16 (2004). When reviewing formal agency decisions, we apply differing standards of review depending on the type of question before us. WWC Holding Co. v. Pub. Serv. Comm'n, 2001 UT 23, ¶ 7, 44 P.3d 714 (citing Utah Code Ann. § 63-46b-16(4)). Under the Act, we review factual findings for "substantial evidence"; in other words, we affirm an agency's findings of fact where they are "supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. § 63-46b-16(4)(g). We review questions of law for correctness, id. § 63-46b-16(4)(d), granting little or no deference to the agency's determination, Esquivel v. Labor Comm'n, 2000 UT 66, ¶ 13, 7 P.3d 777. Finally, when we review questions of

"ultimate fact, mixed findings of fact and law, and [the agency's] interpretation of the operative provisions of statutory law it is empowered to administer, [agency] findings must be rationally based and are set aside only if they are imposed arbitrarily and capriciously or are beyond the tolerable limits of reason."

Assoc. Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 18, 38 P.3d 291, (alterations in original) (quoting Williams v. Pub. Serv. Comm'n, 754 P.2d 41, 50 (Utah 1988)).

¶ 10 In the case before us, the parties disagree over whether standing is a question of law or a mixed question of law and fact. We elaborated upon the differences between questions of law and mixed questions in the administrative law context in Associated General Contractors,2 2001 UT 112, ¶ 18, 38 P.3d 291. There we explained that

general questions of law include constitutional questions, rulings concerning an agency's jurisdiction or authority, interpretations of common law principles, and interpretations of statutes unrelated to the agency. Conversely, instances involving ultimate facts, mixed findings of fact and law, and [an agency's]...

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