Utah Physicians for a Healthy Environment v. Executive Director of the Utah Department of Environmental Quality
391 P.3d 148
| Utah | 2016Background
- Tesoro sought approval to modify its Salt Lake City refinery ("Waxy Crude Processing Project"), submitted a Notice of Intent including emissions estimates and relied on a prior (2007) BACT analysis; Tesoro later submitted a July 25, 2012 supplemental BACT analysis.
- UDAQ reviewed the materials, issued an Intent to Approve and later an approval order; Petitioners (Utah Physicians for a Healthy Environment and Sierra Club—collectively "Petitioners") filed comments and then a Request for Agency Action challenging UDAQ’s BACT determination.
- An ALJ conducted a permit-review adjudicative proceeding, held the Petitioners bore the burden to marshal evidence, found many arguments waived or inadequately briefed, found Petitioners failed to overcome UDAQ’s BACT determination (including that UDAQ adopted the July 25 supplement), and recommended dismissal.
- The Executive Director of UDEQ adopted the ALJ’s findings and issued a final order dismissing Petitioners’ Request for Agency Action; Petitioners appealed to the Utah Supreme Court.
- The Supreme Court dismissed the appeal because Petitioners’ opening brief challenged only the Director of UDAQ’s actions and did not identify errors in the Executive Director’s final order (the dispositive agency action), thereby failing to meet the appellate burden of persuasion and procedural briefing requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper appellant focus / adequacy of briefing | Petitioners argued UDAQ’s BACT analysis was legally inadequate and asked court to review UDAQ’s decision directly. | UDEQ and Tesoro argued Petitioners failed to challenge the Executive Director’s final order in their opening brief and thus failed to meet their burden on appeal. | Court: Appeal dismissed for inadequate briefing; appellant must show error in the Executive Director’s final order (the dispositive action). |
| Use of July 25, 2012 supplement in BACT analysis | Petitioners argued UDAQ did not properly consider or adopt the July 25 supplement and thus BACT analysis was insufficient. | UDEQ and Tesoro maintained UDAQ reviewed and adopted the July 25 supplement (ALJ found UDAQ adopted it). | Court: Did not reach the substantive merits because Petitioners failed to challenge the final order; notes ALJ/UDEQ found the supplement was adopted. |
| Whether failure to address final order may be cured in reply/oral argument | Petitioners attempted to raise Executive Director issues in reply brief and at oral argument (harmless error assertion). | UDEQ/Tesoro moved to strike new arguments in reply; argued reply may not be used to cure opening-brief deficiencies. | Court: Struck portions of reply that first addressed final order; held opening-brief omission was fatal and not cured by reply/oral argument. |
| Characterization of BACT claim as legal vs. factual | Petitioners characterized BACT sufficiency as a legal question warranting independent review. | Court and respondents viewed many BACT complaints as factual/mixed; Petitioners failed to rebut ALJ/Executive Director factual findings. | Court: Petitioners failed to demonstrate a purely legal claim with appropriate briefing; did not decide merits. |
Key Cases Cited
- Allen v. Friel, 194 P.3d 903 (Utah 2008) (appellant must identify errors in the lower court’s final order on appeal)
- State v. Green, 99 P.3d 820 (Utah 2004) (appellate court will not assume burden of argument and research for inadequately briefed claims)
- State v. Roberts, 345 P.3d 1226 (Utah 2015) (adequate briefing requirement tied to appellant’s burden of persuasion)
- Murray v. Utah Labor Comm’n, 308 P.3d 461 (Utah 2013) (deference depends on the type of agency question; mixed questions may warrant institutional deference)
- Bennion v. Utah State Bd. of Oil, Gas & Mining, 675 P.2d 1135 (Utah 1983) (guidance on appellate review and when deference to intermediate review is appropriate)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency action must be upheld on the basis articulated by the agency)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (U.S. 2016) (agency must examine relevant data and articulate a satisfactory explanation; post-hoc rationalizations are insufficient)