Sierra Club v. DEQ
2016 UT 49
| Utah | 2016Background
- Tesoro sought to modify its Salt Lake City refinery in 2011; its Notice of Intent included emissions estimates and a claimed BACT (best available control technology) determination based largely on a 2007/2006 analysis. UDAQ issued an Intent to Approve and later an Approval Order. Tesoro submitted a supplement on July 25, 2012.
- Petitioners (Utah Physicians for a Healthy Environment and Utah Chapter of the Sierra Club) submitted public comments, then filed a Request for Agency Action challenging UDAQ’s permitting/B A C T work; an ALJ was appointed under Utah Code § 19-1-301.5 to conduct permit-review adjudicative proceedings.
- After extensive briefing, oral argument, and a 4,500-page record, the ALJ found Petitioners failed to marshal evidence, waived or failed to preserve many arguments, and recommended dismissal; the Executive Director adopted the ALJ’s findings and issued a final order dismissing the Request for Agency Action.
- Petitioners appealed to this court but focused their opening brief on alleged errors by the Director of UDAQ (the initial permitting decision) rather than challenging the Executive Director’s final order that the statute makes the reviewable dispositive action.
- The Supreme Court held the Petitioners’ opening brief inadequate because it failed to identify errors in the Executive Director’s final order (and failed to marshal the record), struck portions of Petitioners’ reply brief that first attempted to address the final order, and dismissed the appeal without reaching the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper target of appeal: whether Petitioners satisfied burden by attacking UDAQ Director instead of Executive Director’s final order | Petitioners argued UDAQ’s BACT analysis was legally inadequate and asked court to review the Director’s permitting decision | UDEQ and Tesoro argued appellate review is limited to the Executive Director’s final order and Petitioners failed to challenge it in their opening brief | Court: Petitioners failed to meet burden; appellate jurisdiction is limited to review of Executive Director’s final order, and Petitioners’ opening brief did not challenge that order — dismissal |
| Adequacy of briefing / marshaling requirement | Petitioners contended briefing was adequate and that some issues are jurisdictional (and may be raised anytime) | UDEQ/Tesoro argued Petitioners failed to marshal evidence and waived/preserved arguments below; reply brief may not cure opening brief defects | Court: Petitioners failed to marshal and preserve; may not raise final-order claims first in reply; portions of reply struck; briefing failure fatal |
| Whether reply brief may cure opening-brief defects or harmless-error applies | Petitioners attempted to address Executive Director’s order in reply and asserted any defect was harmless because Director’s decision was invalid | Respondents argued raising new issues in reply violates rule 24(c) and cannot cure opening-brief failures; harmless-error claim insufficient | Court: Reply cannot cure the omission; harmless-error argument rejected; dismissal warranted |
| Merits: Was UDAQ’s BACT analysis legally inadequate? | Petitioners argued UDAQ relied on outdated/insufficient BACT analysis and did not adopt or rely on Tesoro’s July 25 supplement | Tesoro and UDEQ contended the Executive Director (and ALJ) found UDAQ adopted the July 25 supplement and that Petitioners failed to show a purely legal error | Court: Did not reach merits due to briefing/jurisdictional failure (expressly declined to decide whether Petitioners’ substantive claims had merit) |
Key Cases Cited
- Allen v. Friel, 194 P.3d 903 (Utah 2008) (appellant must identify errors in lower court’s order on appeal; issues raised first in reply are normally waived)
- Butterfield v. Okubo, 831 P.2d 97 (Utah 1992) (appellate briefs must address the decision of the intermediate appellate body rather than re-litigate the trial court de novo)
- State v. Green, 99 P.3d 820 (Utah 2004) (appellants may not dump the burden of argument and research on the appellate court)
- Murray v. Utah Labor Comm’n, 308 P.3d 461 (Utah 2013) (deference standards: no deference on pure questions of law; varying deference for mixed questions)
- Yuanzong Fu v. Rhodes, 355 P.3d 995 (Utah 2015) (when reviewing intermediate appellate decisions, the court must decide correctness and may "step into the shoes" of the intermediate reviewer)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action must be sustained on the basis articulated by the agency itself)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (agency must examine relevant data and articulate a satisfactory explanation for its action)
- Thummel v. King, 570 S.W.2d 679 (Mo. 1978) (court not required to assume role of appellant’s counsel when briefs are inadequate)