Defend Colo. v. Polis

• Decision Date: 28 January 2021
• Docket Number: Court of Appeals No. 19CA1636
• Citation: 482 P.3d 531
• Parties: DEFEND COLORADO, a Colorado nonprofit association, Plaintiff-Appellant, v. Governor Jared POLIS and The Colorado Air Quality Control Commission, Defendants-Appellees.
• Court: Colorado Court of Appeals

482 P.3d 531

DEFEND COLORADO, a Colorado nonprofit association, Plaintiff-Appellant,

v.Governor Jared POLIS and The Colorado Air Quality Control Commission, Defendants-Appellees.

Court of Appeals No. 19CA1636

Colorado Court of Appeals, Division III.

Announced January 28, 2021

Greenberg Traurig, LLP, Paul M. Seby, Matt Tieslau, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Leeann Morrill, First Assistant Attorney General, Denver, Colorado, for Defendant-Appellee Governor Jared Polis

Philip J. Weiser, Attorney General, Thomas A. Roan, First Assistant Attorney General, Robyn L. Wille, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee The Colorado Air Quality Control Commission

Opinion by JUDGE YUN

¶ 1 This case concerns a certification of air quality data — specifically, ozone levels recorded in the Denver Metropolitan/North Front Range area — that Colorado must annually submit to the United States Environmental Protection Agency (EPA). The central question is whether the Colorado Air Quality Control Commission (Commission) has the authority to require that the certification include supplemental information intended to show the EPA that the recorded ozone levels would have been lower if not for emissions from foreign countries and "exceptional" events such as forest fires.

¶ 2 Based on our review of the statutory and regulatory scheme governing the certification, we conclude, as a matter of first impression, that the Commission does not have such authority. We therefore affirm the district court's judgment dismissing Defend Colorado's claims against the Commission and Governor Jared Polis for lack of standing and failure to state a claim on which relief can be granted.

I. Background

¶ 3 We first briefly describe the parties and the statutory and regulatory background, then describe the procedural history of this case.

A. Parties

¶ 4 Defend Colorado is a nonprofit organization whose members include Colorado businesses and industry groups subject to regulation under the Clean Air Act, 42 U.S.C. §§ 7401 - 7671, and the Colorado Air Pollution Prevention and Control Act, §§ 25-7-101 to - 1309, C.R.S. 2020 (Colorado Air Act). Defend Colorado states that one of its primary purposes is "to advocate for policies and regulations that align with the statutory mandates of the Colorado Air Act and the Clean Air Act."

¶ 5 The Governor is the head of the executive branch. Colo. Const. art. IV, § 2. As such, the Governor is vested with authority and control over the Colorado Department of Public Health and Environment (CDPHE) and its subdivision, the Air Pollution Control Division (Division). See §§ 24-1-119, 24-1-105(4), 25-1-102(1), 25-1-106, C.R.S. 2020. The Division's responsibilities include collecting data to determine the nature and quality of existing ambient air throughout the state, § 25-7-111(2)(b), C.R.S. 2020, and administering and enforcing the air quality control programs adopted by the Commission, § 25-7-111(1).

¶ 6 The Commission is a governmental agency within the CDPHE. § 25-7-104, C.R.S. 2020. It consists of nine Colorado citizens, id. , and is tasked with promulgating rules and regulations under the Colorado Air Act, including, but not limited to, a comprehensive state implementation plan to ensure attainment and maintenance of the national ambient air quality standards and to prevent significant deterioration of air quality, § 25-7-105(1)(a)(I), C.R.S. 2020. The Commission "exercise[s] its prescribed statutory powers, duties, and functions ... independently of the head of the [CDPHE]" and, therefore, of the Governor. § 24-1-105(1) ; see also § 25-7-125, C.R.S. 2020.

B. The National Ambient Air Quality Standards

¶ 7 Under section 108 of the Clean Air Act, 42 U.S.C. § 7408(a)(1)(A), the EPA must identify and list air pollutants "emissions of which ... cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." Section 109, 42 U.S.C. § 7409, directs the EPA to propose and promulgate national ambient air quality standards (NAAQS) for pollutants, including ozone, listed under section 108. The air quality standard relevant to this case is the 2008 ozone NAAQS. 73 Fed. Reg. 16,436 (Mar. 27, 2008).

¶ 8 The EPA determines whether an area attains the ozone NAAQS based on the area's "design value" — that is, the three-year average of the annual fourth-highest daily maximum eight-hour average ozone concentrations. 40 C.F.R. § 50.15(b) (2021). An area with a design value above the NAAQS is designated as being in "nonattainment" and given an "attainment date" by which it must attain the NAAQS. 42 U.S.C. §§ 7407(d), 7511(a)(1). Depending on how much the ozone levels in a nonattainment area exceed the NAAQS, the EPA classifies the area as being in marginal, moderate, serious, severe, or extreme nonattainment. 42 U.S.C. § 7511(a)(1). When an area fails to attain the NAAQS by its attainment date, the EPA may reclassify the area to the next higher classification of nonattainment. 42 U.S.C. § 7511(b)(2).

¶ 9 A state may avoid reclassification of a nonattainment area to a higher classification of nonattainment if it can demonstrate to the EPA that the area would have met the NAAQS "but for" the effect of emissions emanating from outside the United States. 42 U.S.C. § 7509a(b). Similarly, if the ozone levels in an area exceed the NAAQS due to "exceptional" events such as forest fires, then the state may request mitigation for the exceedance in future determinations or designations. 40 C.F.R. § 50.14(c) (2021).

C. The May Data Certification

¶ 10 Each year, a state must submit quarterly data of recorded levels of ozone at all monitoring stations to the EPA's computerized system for the storing and reporting of information relating to ambient air quality data. 40 C.F.R. § 58.16 (2021).

¶ 11 Further, by May 1 of each year, a state monitoring agency, through its head official or his or her designee, must submit to the EPA an "annual air monitoring data certification letter" certifying "that the previous year of ambient concentration and quality assurance data are completely submitted to [the EPA's computerized system] and that the ambient concentration data are accurate to the best of her or his knowledge, taking into consideration the quality assurance findings." 40 C.F.R. § 58.15(a) (2021). We refer to this annual letter as the "May Data Certification."

D. The Nonattainment Area

¶ 12 In 2016, the EPA classified the Denver Metropolitan/North Front Range area (Nonattainment Area) as being in moderate nonattainment for the 2008 ozone NAAQS and imposed an attainment date of July 20, 2018. 81 Fed. Reg. 26,697 (May 4, 2016).

¶ 13 In June 2018, the CDPHE requested a one-year extension of the attainment date. In a proposed rule, the EPA proposed to approve the request. 83 Fed. Reg. 56,781 (Nov. 14, 2018). However, in March 2019, the Governor issued a letter to the EPA withdrawing the extension request. Thus, the Nonattainment Area's attainment date remained July 20, 2018. 84 Fed. Reg. 70,897 (Dec. 26, 2019).

¶ 14 In December 2019, based on ozone monitoring data showing that the design value for the Nonattainment Area exceeded the 2008 ozone NAAQS for the period 2015 to 2017, the EPA published a final rule reclassifying the Nonattainment Area from moderate to serious nonattainment, effective January 27, 2020. 84 Fed. Reg. 70,897 (Dec. 26, 2019).

E. Procedural History

¶ 15 In February 2019, Defend Colorado petitioned the Commission to hold one or more public hearings to "investigate and quantify the ... effects of international emissions and exceptional events on ozone concentrations" in the Nonattainment Area in 2018 and "[i]ssue a Declaratory Order at the conclusion of such investigations ... directing" the CDPHE to demonstrate to the EPA in the 2019 May Data Certification that, but for the effect of international emissions and exceptional events, the Nonattainment Area attained the 2008 ozone NAAQS in 2018. Because, at the time Defend Colorado filed its petition, the Governor had not yet withdrawn Colorado's request that the EPA extend the attainment date to July 2019, Defend Colorado believed that the EPA would consider 2018 data in determining whether to reclassify the Nonattainment Area from moderate to serious nonattainment. Thus, Defend Colorado asserted that the failure to present the EPA with information regarding international emissions and emissions from exceptional events in 2018 would "result in EPA [reclassifying] the [Nonattainment] Area to ‘serious’ nonattainment, and the imposition of extremely burdensome and costly requirements on Coloradans."

¶ 16 The Commission declined to decide the petition. Citing section 24-4-105(11), C.R.S. 2020, the Commission concluded that it had discretion to issue declaratory orders terminating controversies or removing uncertainties "as to the applicability to the petitioners of any statutory provision or of any rule or order of the agency." Because Defend Colorado's petition did not identify any controversy or uncertainty as to the applicability to Defend Colorado of any statute, rule, or order, the Commission held that Defend Colorado lacked standing to petition for a declaratory order. Defend Colorado submitted an emergency motion for reconsideration or clarification of the Commission's order. In its order denying Defend Colorado's motion to reconsider, the Commission clarified that, "[b]ecause Defend Colorado does not have standing to request a declaratory order, holding a hearing to determine whether to issue such an order is illogical."

¶ 17 Defend Colorado brought a complaint in the district court for declaratory and injunctive relief and judicial review under the Colorado Administrative Procedure Act, §§ 24-4-101 to - 204, C.R.S. 2020 (Colorado APA), against the Commission and the Governor. In its complaint, Defend Colorado asserted four claims for relief:

• In its first claim for relief against the

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