Colo. Mining Ass'n v. Urbina

• Citation: 318 P.3d 562
• Decision Date: 21 November 2013
• Docket Number: Court of Appeals No. 12CA1628
• Court: Colorado Court of Appeals
• Parties: COLORADO MINING ASSOCIATION, Plaintiff–Appellant, v. Christopher E. URBINA, Executive Director of the Department of Public Health and Environment for the State of Colorado; Colorado Department of Public Health and Environment; Colorado Air Quality Control Commission; and Air Pollution Control Division, an agency of the State of Colorado, Defendants–Appellees, and EnCana Oil & Gas (USA); Chesapeake Energy Corporation; Noble Energy, Inc.; Public Service Company of Colorado; Environment Colorado; Environmental Defense Fund; Conservation Colorado; Sierra Club; and Western Resource Advocates, Intervenors–Appellees.

318 P.3d 562

COLORADO MINING ASSOCIATION, Plaintiff–Appellant,

v.Christopher E. URBINA, Executive Director of the Department of Public Health and Environment for the State of Colorado; Colorado Department of Public Health and Environment; Colorado Air Quality Control Commission; and Air Pollution Control Division, an agency of the State of Colorado, Defendants–Appellees,andEnCana Oil & Gas (USA); Chesapeake Energy Corporation; Noble Energy, Inc.; Public Service Company of Colorado; Environment Colorado; Environmental Defense Fund; Conservation Colorado; Sierra Club; and Western Resource Advocates, Intervenors–Appellees.

Court of Appeals No. 12CA1628

Colorado Court of Appeals,

Div. I.

Announced November 21, 2013

City and County of Denver District Court No. 11 CV2044, Honorable Christina M. Habas, Judge

Seby Larsen, LLP, Paul M. Seby, Marian C. Larsen, Denver, Colorado, for Plaintiff–Appellant.

John W. Suthers, Attorney General, Casey Shpall, Deputy Attorney General, Thomas A. Roan, First Assistant Attorney General, Denver, Colorado, for Defendants–Appellees.

RoweLaw, LLC, Russell P. Rowe, R. William Rowe, Greenwood Village, Colorado, for Intervenors–Appellees EnCana Oil & Gas (USA), Chesapeake Energy Corporation, and Noble Energy, Inc.

Faegre Baker Daniels, LLP, Michael S. McCarthy, Linda L. Rockwood, Ann Prouty, Denver, Colorado, for Intervenor–Appellee Public Service Company of Colorado.

Gallagher Law Group, P.C., Jill H. Van Noord, Thomas H. Bloomfield, Boulder, Colorado, for Intervenors–Appellees Environment Colorado, Environmental Defense Fund, Conservation Colorado, Sierra Club, and Western Resource Advocates.

Opinion by JUDGE ROMÁN

¶ 1 Plaintiff, Colorado Mining Association (CMA),¹ a trade association representing coal producers, appeals the trial court's judgment dismissing as moot its claims against defendants, Colorado Department of Public Health and Environment (CDPHE), Christopher E. Urbina in his capacity as Executive Director of CDPHE, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively the agencies). CMA alleged that the rulemaking process employed by the agencies in promulgating environmental air quality regulations violated procedural rules, resulting in harm to CMA's members. The trial court, however, concluded that subsequent legislation adopting the regulations, section 25–7–133.5, C.R.S.2013, mooted any procedural challenge to the agencies' rulemaking.

¶ 2 We agree with the trial court and therefore affirm its judgment determining this case is moot. Because an order declaring the AQCC's procedures invalid would not affect section 25–7–133.5, and the CMA has not challenged the validity of that statute, the relief sought in this appeal—invalidation of the regulations—would have no practical effect.

I. Legal Background

¶ 3 This case involves a unique and complex statutory and regulatory scheme under which Colorado submits proposed environmental air quality regulations to the United States Environmental Protection Agency (EPA). To facilitate our analysis, we begin by providing the background of the relevant statutes and regulations, as well as the involved agencies and entities.

A. Clean Air Act

¶ 4 Through section 169A of the Clean Air Act (CAA), 42 U.S.C. § 7401 (2012), the United States Congress has sought to protect visibility in certain National Parks and Wilderness Areas. See42 U.S.C. §§ 7491, 7492 (2012). The CAA operates through cooperative federalism procedures that require states to develop and submit, for EPA's review and approval, a State Implementation Plan (SIP) designed to achieve the environmental protection goals set forth by Congress in the CAA. See42 U.S.C. §§ 7410, 7492 (2012); see also New York v. United States, 505 U.S. 144, 167–68, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (defining cooperative federalism). Once a state submits a complete SIP to the EPA, the EPA determines whether to approve it. 42 U.S.C. § 7410(k)(2)-(3) (2012). If a state fails to submit an acceptable SIP, the EPA must formulate its own plan for the state, called a Federal Implementation Plan. 42 U.S.C. § 7410(c) (2012).

B. Regional Haze Regulations

¶ 5 Pursuant to section 169A of the CAA, the EPA promulgated regulations aimed at decreasing visibility-impairing pollutants referred to as “regional haze.” See Regional Haze Rule, 40 C.F.R. §§ 51.300 to 51.309 (2012). Under the Regional Haze Rule, states are required to amend their SIPs to “establish goals ... that provide for reasonable progress towards” reducing regional haze. 40 C.F.R. § 51.308(d)(1) (2012). To achieve “reasonable progress,” the rule requires states to install “Best Available Retrofit Technology” (BART) on existing facilities that emit visible pollutants. See40 C.F.R. § 51.301 (2012). Alternatively, states may propose other means for reducing regional haze, so long as those means would “achieve greater reasonable progress than would be achieved through the installation and operation of BART.” 40 C.F.R. § 51.308(e)(2) (2012).

C. Clean Air—Clean Jobs Act

¶ 6 In 2010, the General Assembly enacted the Clean Air—Clean Jobs Act (CACJA), in part to fulfill the requirements of the CAA and the Regional Haze Rule. See§§ 40–3.2–201 to –210, C.R.S.2013. Under the CACJA, rate-regulated utility companies that own coal-fired electric generating facilities in Colorado were required to submit emission reduction plans to the Colorado Public Utilities Commission (PUC) on or before August 15, 2010. § 40–3.2–204(1), C.R.S.2013. CACJA further required that utility companies consult with the CDPHE in developing their plans, prior to submission to the PUC. § 40–3.2–204(2)(b), C.R.S.2013. A final emission reduction plan under CACJA must be consistent with “the current and reasonably foreseeable requirements of the [CAA],” and must “include a schedule that would result in full implementation of the plan on or before December 31, 2017.” § 40–3.2–204(2)(b)(I), (2)(c), C.R.S.2013.

¶ 7 Once a utility company submits a plan to the PUC, the PUC is required to “review the plan and enter an order approving, denying, or modifying the plan” to ensure consistency with federal and state requirements. § 40–3.2–205(2), C.R.S.2013.

¶ 8 After a utility company files a plan with the PUC, the AQCC is required to schedule a hearing to determine whether the plan should be incorporated into Colorado's SIP. § 40–3.2–208(1), C.R.S.2013. However, the AQCC cannot act on the plan until the PUC finally approves it. § 40–3.2–208(2)(a), C.R.S.2013. All proceedings conducted by the AQCC in relation to a proposed plan require “public notice and an opportunity for the public to participate.” §§ 25–7–110(1), 40–3.2–208(2)(c), C.R.S.2013. These proceedings must comply with the rulemaking procedures in the Colorado Administrative Procedure Act (APA), section 24–4–103, C.R.S.2013. See§ 25–7–110(1) (requiring sixty-day notice and compliance with the rulemaking requirements of the APA for the adoption, promulgation, or modification of any air quality standard or regulation); § 25–7–133(3), C.R.S.2013 (requiring compliance with the APA when a proposed SIP amendment contains terms more stringent than federal requirements). The AQCC's rulemaking procedures are referred to as “Phase III Rulemaking.” Once the AQCC approves the plan, it is incorporated into Colorado's SIP, subject to legislative review and EPA approval.

D. Legislative Review of the SIP Amendments

¶ 9Section 25–7–133(1), C.R.S.2013, requires the AQCC to submit an annual summary of any additions or changes to Colorado's SIP to the General Assembly's Legislative Council. The Legislative Council is an executive committee consisting of six senators, six representatives, and the leadership of both the Senate and House. § 2–3–301(1), C.R.S.2013. Section 2–3–303, C.R.S.2013, defines the functions of the Council, which include

collect[ing] information concerning the government and general welfare of the state; ... examin[ing] the effects of constitutional provisions and statutes and recommend[ing] desirable alterations; ... consider[ing] important issues of public policy and questions of statewide interest; ... [and] prepar[ing] for presentation to the members and various sessions of the general assembly such reports, bills, or otherwise, as the welfare of the state may require.

See also§ 2–3–311(1)(b), C.R.S.2013 (Legislative Council shall “[e]ncourage and assist state officials and employees to cooperate with officials and employees of ... the federal government”).

¶ 10 Once the annual summary is submitted, one of two scenarios can occur.

¶ 11 First, the General Assembly may choose not to act, in which case the SIP is submitted to the EPA for final approval. § 25–7–133(2)(b), C.R.S.2013.

¶ 12 Second, any member of the General Assembly may request the Legislative Council to hold a hearing to review the additions or changes to the SIP. § 25–7–133(2)(a), C.R.S.2013. The purpose of such a hearing is to “determine whether the addition or change to the SIP element accomplishes the results intended by enactment of the statutory provisions under which the addition or change to the SIP element was adopted.” Id. At the conclusion of the hearing, the Legislative Council may recommend the introduction of a bill either to reject or to approve the proposed SIP amendments for submission to the EPA. Id.

E. Public Service Company's Emission Reduction Plan

¶ 13 Before the deadline for filing emission reduction plans, the Public Service Company of Colorado (PSCo) ² collaborated with CDPHE to develop an emission reduction plan, which was eventually submitted to the PUC and approved by the PUC and the AQCC. Accordingly, the AQCC sent a summary of the proposed SIP changes to the Legislative Council for review and approval on January 14, 2011.

¶ 14 In response to the summary of the SIP amendments, several state legislators requested the Legislative Council conduct a hearing to review the SIP amendments unde...