Advocates for A Cleaner Tacoma v. Puget Sound Clean Air Agency

• Docket Number: 56938-8-II
• Decision Date: 26 December 2023
• Parties: ADVOCATES FOR A CLEANER TACOMA; SIERRA CLUB; WASHINGTON ENVIRONMENTAL COUNCIL; WASHINGTON PHYSICIANS FOR SOCIAL RESPONSIBILITY; STAND.EARTH, AND THE PUYALLUP TRIBE OF INDIANS, Appellants, v. PUGET SOUND CLEAN AIR AGENCY, PUGET SOUND ENERGY, AND THE WASHINGTON STATE POLLUTION CONTROL HEARINGS BOARD, Respondents.
• Court: Washington Court of Appeals

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ADVOCATES FOR A CLEANER TACOMA; SIERRA CLUB; WASHINGTON ENVIRONMENTAL COUNCIL; WASHINGTON PHYSICIANS FOR SOCIAL RESPONSIBILITY; STAND.EARTH, AND THE PUYALLUP TRIBE OF INDIANS, Appellants,
v.
PUGET SOUND CLEAN AIR AGENCY, PUGET SOUND ENERGY, AND THE WASHINGTON STATE POLLUTION CONTROL HEARINGS BOARD, Respondents.

No. 56938-8-II

Court of Appeals of Washington, Division 2

December 26, 2023

OPINION

LEE, J.

Appellants Advocates for a Cleaner Tacoma, Sierra Club, Washington Environmental Council, Washington Physicians for Social Responsibility, Stand.Earth (collectively ACT), and the Puyallup Tribe of Indians (Tribe) appeal the Pollution Control Hearings Board's (PCHB) dismissal on partial summary judgment the claim that the Puget Sound Clean Air Agency's (PSCAA) "Notice of Construction (NOC) Order of Approval" for the Tacoma Liquefied Natural Gas (TLNG) facility was issued ultra vires. Appellants^[1] also appeal the PCHB's Final Order affirming the PSCAA's Supplemental Environmental Impact Statement (SEIS) and the NOC Order of Approval for the TLNG facility.

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Appellants argue that the Washington Clean Air Act (WCAA)^[2] authorizes only the PSCAA board, and not staff members, to issue orders of approval. Appellants also claim that the SEIS was inadequate because (1) it found the TLNG facility would not have a "significant" adverse impact on greenhouse gas emissions; (2) the use of a static baseline in the "No Action Alternative" was unreasonable; and (3) the use of a 0.32 percent methane emissions/leak loss rate was unreasonable. Finally, Appellants claim that the PCHB erred in affirming the NOC Order of Approval because PSCAA did not conduct a sufficient best available control technology (BACT) analysis and the NOC Order of Approval was based on an inaccurate air dispersion model, the updated version of which was never provided to the public for comment.^[3]

Because the WCAA authorizes PSCAA staff members to issue orders of approval, the PCHB did not err in dismissing the Appellants' ultra vires claim on partial summary judgment. And because we find no error in the PCHB's conclusion that the SEIS was adequate or in the PCHB affirming the NOC Order of Approval, we affirm.

FACTS

Puget Sound Energy (PSE), a state-regulated entity, provides natural gas services to Washington customers. In anticipation of future demand and long-term needs, PSE proposed constructing the TLNG facility at the Port of Tacoma with access to the Puget Sound. The TLNG facility would sit on the west shore of the Hylebos Waterway on an approximately 30-acre site. The site is adjacent to the Puyallup Indian Reservation.

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In May 2017, PSE submitted a NOC permit application to PSCAA for the TLNG facility. In 2019, PSCAA issued NOC Order of Approval No. 11386.^[4] PSCAA Reviewing Engineer, Ralph Munoz, and PSCAA Compliance Manager, Carole Cenci, signed the NOC Order of Approval.

On December 19, 2019, ACT appealed to the PCHB, challenging the NOC Order of Approval issued by PSCAA to PSE for the construction of the TLNG facility. On the same day, the Tribe also filed an appeal of PSCAA's NOC Order of Approval to the PCHB. The PCHB consolidated ACT's and the Tribe's appeals into a single appeal.

In January 2020, ACT filed a motion for a stay of the effectiveness of the NOC Order of Approval. The Tribe filed its own motion for stay and joined ACT's motion. The Appellants' main arguments included (1) PSCAA's NOC Order of Approval was issued ultra vires, and therefore invalid, because it had been issued by PSCAA staff instead of the PSCAA board; (2) the SEIS violated the State Environmental Policy Act (SEPA); and (3) the NOC Order of Approval violated various provisions of the federal Clean Air Act. PSE opposed both motions. The PCHB denied the motions for stay.

In May 2020, PSE filed a motion to dismiss and for partial summary judgment. PSCAA joined PSE's motion. Among the issues the Respondents^[5] sought to dismiss was the Appellants' ultra vires argument. PSE argued that "PSCAA staff's authorization to issue Order of Approvals is consistent with the plain language and the underlying framework of the [Washington] Clean Air Act and PSCAA's regulations, and with PSCAA's longstanding application of the statutes and regulations, which must be given deference." Admin. R. (AR) at 3500 (footnote omitted).

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The PCHB granted Respondents' motion in part and dismissed the ultra vires claim. The PCHB held that under a plain language reading of RCW 70A.15.2300 and RCW 70A.15.2210, air pollution control officers, in addition to an air agency board, have the authority to issue orders of approval. PCHB's order further stated that "the parties do not dispute that PSCAA staff engineers constitute control officers. They are therefore authorized to issue the order of approval here under [RCW 70A.15.2300] and PSCAA Regulation I, § 3.01." AR at 12671-72 (footnote omitted).

The Tribe appeals the PCHB's dismissal of the ultra vires claim on partial summary judgment.

ANALYSIS

The Tribe argues that PSCAA's NOC Order of Approval was ultra vires and invalid because it was issued by PSCAA's staff rather than the PSCAA board. Specifically, the Tribe asserts that the PSCAA board impermissibly delegated its authority and violated the WCAA. We disagree.

A. Legal Principles

Appeals from PCHB orders are governed by the Washington Administrative Procedure Act (APA), chapter 34.05 RCW. RCW 43.21B.180; RCW 34.05.570(3); Snohomish County v. Pollution Control Hr'gs Bd., 187 Wn.2d 346, 357, 386 P.3d 1064 (2016). We "directly apply APA standards to the PCHB's record." Wash. State Dairy Fed'n v. Dep't of Ecology, 18 Wn.App. 2d 259, 273, 490 P.3d 290 (2021).

We review summary judgment orders de novo and make the same inquiry as the PCHB. Cornelius v. Dep't of Ecology, 182 Wn.2d 574, 585, 344 P.3d 199 (2015). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c). Furthermore, "[a]n order granting summary

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judgment may be affirmed on any legal basis supported by the record." Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d 506, 514, 475 P.3d 164 (2020).

Questions of statutory interpretation are also reviewed de novo. Lakehaven Water & Sewer Dist. v. City of Fed. Way, 195 Wn.2d 742, 752, 466 P.3d 213 (2020). In cases of statutory interpretation, the court's primary objective is to ascertain and carry out legislative intent. Id. "[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent." Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).

A statute's plain meaning is discerned by the context of the statute, the text of the provision in question and related provisions, and the statutory scheme as a whole. Ass'n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350, 340 P.3d 849 (2015). All provisions of a statute must be read in harmony and must be construed such that no portion is rendered meaningless or superfluous. Segura v. Cabrera, 184 Wn.2d 587, 593, 362 P.3d 1278 (2015); Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 440, 359 P.3d 753 (2015). If the plain language is unambiguous, our inquiry ends "and we will not resort to interpretive tools such as legislative history." PeaceHealth St. Joseph Med. Ctr. v. Dep't of Revenue, 196 Wn.2d 1, 8, 468 P.3d 1056 (2020). The rules of statutory interpretation also apply to administrative regulations; if the plain language of a regulation is clear on its face, its meaning is to be derived from the plain language alone. D.W. Close Co. v. Dep't of Lab. & Indus., 143 Wn.App. 118, 126, 177 P.3d 143 (2008). Finally, we construe statutes to avoid absurd results. Jespersen v. Clark County, 199 Wn.App. 568, 578, 399 P.3d 1209 (2017).

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We review rules and regulations to determine "whether the rules are reasonably consistent with the statutes they purport to implement." ASARCO, Inc. v. Puget Sound Air Pollution Control Agency, 51 Wn.App. 49, 52, 751 P.2d 1229 (1988), aff'd, 112 Wn.2d 314 (1989).

Certain well settled principles govern the scope of an administrative agency's rule-making authority. First, an agency has only those powers either expressly granted or necessarily implied from statutory grants of authority. Second, an agency does not have the power to promulgate rules that amend or change legislative enactments. Third, rules may "fill in the gaps" in legislation if such rules are "necessary to the effectuation of a general statutory scheme." Fourth, administrative rules adopted pursuant to a legislative grant of authority are presumed to be valid and should be upheld on judicial review if they are reasonably consistent with the statute being implemented. Fifth, a party attacking the validity of an administrative rule has the burden of showing compelling reasons that the rule is in conflict with the intent and purpose of the legislation.

Green River Cmty. Coll., Dist. No. 10 v. Higher Educ. Pers. Bd., 95 Wn.2d 108, 112, 622 P.2d 826 (1980) (citations omitted) (internal quotation marks omitted) (quoting Hama Hama Co. v. Shorelines Hr'gs Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975)).

Ultra vires means "beyond the scope or in excess of legal power or authority." Webster's Third New International Dictionary 2480 (2002). An ultra vires act is one performed without legal authority and is "void on the basis that no power to act existed, even where proper procedural requirements are followed." S. Tacoma Way, LLC v. State, 169 Wn.2d 118, 123, 233 P.3d 871 (2010). "Ultra vires acts cannot be validated by later ratification or events." Id.

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B. Applicable Statutes and Regulations

1. Washington Clean Air Act (WCAA)

The WCAA was enacted in 1967 and created...