July 15, 2019

Colorado Court of Appeals: Subsequent Legislation Made Moot Trade Association’s Claims of Harm

The Colorado Court of Appeals issued its opinion in Colorado Mining Association v. Urbina on Thursday, November 21, 2013.

Environmental Air Quality Regulations—Challenge to Validity of Procedural Rules and Legislation.

Plaintiff Colorado Mining Association (CMA), a trade association representing coal producers, appealed the trial court’s judgment dismissing as moot its claims against defendants Colorado Department of Public Health and Environment (CDPHE), CDPHE Executive Director Christopher E. Urbina, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively, agencies). The judgment was affirmed.

CMA alleged that the rulemaking process employed by the agencies in promulgating environmental air quality regulations violated procedural rules, resulting in harm to CMA members. Pursuant to CRS § 25-7-133, a hearing was requested, a bill was introduced, and the bill was enacted into law. Significantly, there has been no challenge to the validity of the statute or the procedures employed to enact it. Therefore, subsequent legislation adopting the regulations—CRS § 25-7-133.5—mooted any procedural challenge to the agencies’ rulemaking. Because an order declaring the AQCC’s procedures invalid would not affect § 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. Accordingly, the trial court did not err in dismissing CMA’s claims as moot.

Summary and full case available here.

Tenth Circuit: EPA Did Not Act Arbitrarily or Capriciously in Denying Petition for Objection to Permit Issued to Coal-Fired Power Station

The Tenth Circuit Court of Appeals published its opinion in Wildearth Guardians v. United States Environmental Protection Agency on Tuesday, July 23, 2013.

Petitioner Wildearth Guardians sought review of an order of the Environmental Protection Agency denying in part Petitioner’s petition for an objection to an operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado for its coal-fired power station located in Colorado. In its petition for an objection, Petitioner argued that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or “major modification” of a stationary source of air pollution had been triggered when the station underwent major modifications. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002. However, the EPA denied Petitioner’s petition for an objection, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner’s additional evidence also failed to demonstrate a violation. Petitioner sought review of the EPA’s denial of the petition.

The Tenth’s Circuit’s review of the EPA’s order is governed by the Administrative Procedure Act, and the court accordingly will not set aside the agency’s decision unless it is procedurally defective, arbitrary or capricious, or manifestly contrary to statute.

The EPA must issue an objection if a petitioner demonstrates that the permit is not in compliance with the requirements of the Clean Air Act. A central dispute in this case was the question of what was required for the petitioner to “demonstrate” noncompliance. To resolve the dispute, the court had to first consider whether the agency’s interpretation of this requirement was entitled to any deference.

To the extent a statute speaks clearly to a question at issue, the court must give effect to the unambiguously expressed intent of Congress. If, however, a statute is silent or ambiguous with respect to an issue, the agency’s interpretation of the statute is entitled to some degree of deference. Indeed, the statute at issue does not resolve the questions that are part and parcel of the Administrator’s duty to evaluate the sufficiency of this petition: the type of evidence a petitioner may present and the burden of proof guiding the Administrator’s evaluation of when a sufficient demonstration of noncompliance has occurred. The statutory silence suggests that Congress delegated to the EPA some discretion in determining whether a petitioner has presented sufficient evidence to prove a permit violates clean air requirements, and thus the court concluded some level of deference was warranted.

Viewing the record as a whole, the Tenth Circuit was not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under its deferential standard of review, the court AFFIRMED the EPA’s denial of the petition on this ground.

Tenth Circuit: EPA Had Authority to Review and Reject Oklahoma’s BART Determination Under Clean Air Act

The Tenth Circuit Court of Appeals published its opinion in State of Oklahoma v. United States Environmental Protection Agency on Friday, July 19, 2013.

Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) must create and review national ambient air quality standards for certain pollutants. States then have the responsibility to adopt state implementation plans (SIPs), which provide for implementation, maintenance, and enforcement of those primary and secondary air quality standards.

States, however, exercise this authority with federal oversight. The EPA reviews all SIPs to ensure that the plans comply with the statute. The EPA may not approve any plan that would interfere with any  requirement of the Clean Air Act.

At issue in this case were the portions of the CAA that seek to protect visibility at certain national parks and wildlife areas. A state—or the EPA, when promulgating a FIP—must: 1) determine which eligible sources in their state contribute to visibility impairment; and then 2) determine the “best available retrofit technology” (BART) for controlling the emissions causing that impairment at that source.

In 2005, the EPA issued an updated version of its Regional Haze Rule that required states to submit SIP revisions by December 17, 2007. On January 15, 2009, the EPA took final action in finding that Oklahoma failed to submit a SIP that addressed any of the Regional Haze elements by this deadline. This triggered the EPA’s duty to promulgate a federal implementation plan within two years. Before the EPA promulgated a FIP, however, Oklahoma submitted its SIP. After notice and comment, the EPA published the final rule enacting emissions limits. On February 24, 2012, the State of Oklahoma and the Oklahoma Industrial Energy Consumers filed in this court a petition seeking review of the EPA’s final rule.

In these consolidated petitions for review, petitioners challenged the final rule promulgated by the EPA. The petitioners argued that the EPA impermissibly rejected Oklahoma’s plan to limit the emissions of sulfur dioxide at Oklahoma Gas and Electric Company power plants and replaced it with its own more stringent regulations, which petitioners contended usurped the state’s authority and required sizable expenditures on unnecessary technology.

The Tenth Circuit agreed with the EPA that the statute provided the agency with the power to review Oklahoma’s BART determinations. The EPA rejected Oklahoma’s SIP because the BART determinations failed to comply with the required guidelines. The statute and the legislative history supported the Court’s conclusion that the EPA could reject BART determinations that do not comply with the guidelines. States have the ability to create SIPs, but they are subject to EPA review.  The Tenth Circuit therefore held that the EPA had authority to review the state’s BART plan.

The Tenth Circuit then had to determine whether the EPA lawfully exercised that authority when it rejected Oklahoma’s SIP. Petitioners argued that the EPA took arbitrary and capricious action in rejecting two sets of cost estimates they used in determining BART. In following the standards of the Administrative Procedure Act (APA) in reviewing the EPA’s actions under the CAA, the Tenth Circuit held that the EPA lawfully exercised its authority in rejecting Oklahoma’s SIP and promulgating its own. The EPA considered the relevant data and rationally explained its decision. The Court found petitioners’ arguments to be without merit.

Petitioners further challenged many decisions made by the EPA in promulgating the FIP. The Court reviewed these challenges under the same arbitrary and capricious standard it used to evaluate the EPA’s rejection of the SIP and rejected all of the petitioners’ arguments.

In addition to these arguments concerning the EPA’s substantive analysis, the petitioners raised a number of challenges to the procedures the EPA used in promulgating the rule. The CAA creates a high bar for any petitioner challenging an EPA action on procedural grounds. The petitioner must prove: 1) that the failure to observe the procedure was arbitrary and capricious; 2) that the objection was raised with reasonable specificity during the period for public comment; and 3) that the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made. The Tenth Circuit did not agree that the EPA’s actions violated the procedural requirements of the Clean Air Act.

In summary, the Tenth Circuit held that the EPA had the authority to review Oklahoma’s BART determinations. Moreover, it exercised that authority properly. Accordingly, the Court denied the petition for review of the EPA’s final rule.  The stay pending hearing by the merits panel was lifted.