2013 COA 155
Colo. Ct. App.2013Background
- Colorado agencies (CDPHE, AQCC, Air Pollution Control Division) adopted Regional Haze SIP amendments incorporating a BART alternative tied to Public Service Company of Colorado (PSCo) emission-reduction plans under the Clean Air–Clean Jobs Act (CACJA).
- CMA (trade association for coal producers) challenged AQCC Phase III rulemaking in district court, alleging multiple APA and state‑statute procedural defects (insufficient 60‑day notice, inadequate investigation, failure to notify when state terms exceed federal requirements, and failure to consider local economic impacts).
- While CMA's suit was pending, the Legislative Council reviewed the SIP, recommended ratification, and the General Assembly enacted HB 11‑1291, which expressly approved the SIP amendments and postponed expiration of certain rules; the governor signed it and the SIP amendments were later submitted to and approved by the EPA.
- The trial court dismissed CMA’s challenge as moot because the General Assembly’s enactment effectively superseded any agency procedural errors; CMA appealed.
- The Colorado Court of Appeals affirmed the dismissal as moot, reasoning that invalidating AQCC procedures would not affect the enacted statute (which CMA did not challenge), and thus would have no practical legal effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CMA's APA/procedural challenge is moot after legislative ratification of the SIP | A state court ruling invalidating AQCC rulemaking could cause EPA to refuse to enforce the SIP despite HB 11‑1291, so claims are not moot | Legislative enactment of HB 11‑1291 ratified the SIP and thus renders judicial relief (invalidating AQCC procedures) without practical effect | Court held claims are moot because the statute enacted by the General Assembly is not challenged and would remain effective even if agency procedures were invalidated |
| Whether courts may review agency rulemaking under APA once legislature has enacted statute approving the SIP | Judicial review remains available and is necessary to vindicate statutory procedural rights and could affect EPA enforcement | Judicial relief would be ineffective because the legislature’s approval supersedes preceding administrative action | Court rejected this and concluded APA review cannot revive a controversy where legislative action has rendered relief ineffectual |
| Whether prior cases like Sierra Club control here | CMA relied on Sierra Club to argue state invalidation can prevent EPA enforcement, preserving a practical effect | Agencies distinguished Sierra Club because there the SIP went to EPA without intervening legislative ratification by statute | Court agreed the situations differ: legislative enactment here moots the challenge, unlike Sierra Club’s facts |
| Whether legislative review process (Legislative Council + GA) implicitly validated agency procedures | CMA argued Council’s review did not decide procedural compliance and so did not bar judicial relief | Agencies argued the Council’s hearing and GA enactment show the legislature considered the record and acted, producing reliance and finality | Court found GA enactment dispositive and that CMA did not challenge the statute, so procedural attack is moot |
Key Cases Cited
- Sierra Club v. Indiana‑Kentucky Electric Corp., 716 F.2d 1145 (7th Cir. 1983) (state judicial invalidation of SIP provisions for procedural defects can affect EPA enforcement)
- Nuclear Energy Inst., Inc. v. Environmental Protection Agency, 378 F.3d 1251 (D.C. Cir. 2004) (congressional enactment can moot challenges to prior administrative actions)
- Mobil Oil Corp. v. United States Environmental Protection Agency, 35 F.3d 579 (D.C. Cir. 1994) (subsequent statute that codifies or preserves agency action can render challenges moot)
- New Mexico Envtl. Improvement Div. v. Thomas, 789 F.2d 825 (10th Cir. 1986) (when an approved SIP contains elements invalidated under state law, EPA adoption may also be invalid)