Colorado Mining Ass'n v. Urbina , 2013 Colo. App. LEXIS 1783 ( 2013 )

Opinion by

JUDGE ROMAN

T1 Plaintiff, Colorado Mining Association (CMA),¹ a trade association representing coal producers, appeals the trial court's judgment dismissing as moot its claims against defendants, Colorado Department of Public Health and Environment (CDPHE), Christopher E. Urbina in his capacity as Executive Director of CDPHE, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively the agencies). CMA alleged that the rulemaking process employed by the agencies in promulgating environmental air quality regulations violated procedural rules, resulting in harm to CMA's members. The trial court, however, concluded that subsequent legislation adopting the regulations, section 25-7-188.5, C.R.S8.2013, mooted any procedural challenge to the agencies' rulemaking.

12 We agree with the trial court and therefore affirm its judgment determining this case is moot. Because an order declaring the AQCC's procedures invalid would not affect section 25-7-188.5, 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. «

I. Legal Background

13 This case involves a unique and complex statutory and regulatory scheme under which Colorado submits proposed environmental air quality regulations to the United States Environmental Protection Agency (EPA). To facilitate our analysis, we begin by providing the background of the relevant statutes and regulations, as well as the involved agencies and entities.

A. Clean Air Act

4 Through section 169A of the Clean Air Act (CAA), 42 U.S.C. § 7401 (2012), the United States Congress has sought to protect visibility in certain National Parks and Wilderness Areas. See 42 U.S.C. §§ 7491, 7492 (2012). The CAA operates through cooperative federalism procedures that require states to develop and submit, for EPA's review and approval, a State Implementation Plan (SIP) designed to achieve the environmental protection goals set forth by Congress in the CAA. See 42 U.S.C. §§ 7410, 7492 (2012); see also New York v. United States, 505 U.S. 144, 167-68, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (defining cooperative federalism). Onee a state submits a complete SIP to the EPA, the EPA determines whether to approve it 42 U.S.C. § (2012). If a state fails to submit an acceptable SIP, the EPA must formulate its own plan for the state, called a Federal Implementation Plan. 42 U.S.C. § 7410(c) (2012).

B. Regional Haze Regulations

T5 Pursuant to section 169A of the CAA, the EPA promulgated regulations aimed at decreasing visibility-impairing pollutants referred to as "regional haze." See Regional Haze Rule, 40 C.F.R. §§ 51.300 to 51.309 (2012). Under the Regional Haze Rule, states are required to amend their SIPs to "establish goals ... that provide for reasonable progress towards" reducing regional haze. 40 C.F.R. § 51.308(d)(1) (2012). To achieve "reasonable progress," the rule requires states to install "Best Available Retrofit Technology" (BART) on existing facilities that emit visible pollutants. See 40 C.F.R. § 51.301 (2012). Alternatively, states may propose other means for reducing regional haze, so long as those means would "achieve greater reasonable progress than would be achieved through the installation and operation of BART." 40 C.F.R. § 51.8308(c)(@) (2012).

C. Clean Air-Clean Jobs Act

T 6 In 2010, the General Assembly enacted the Clean Air-Clean Jobs Act (CACJA), in part to fulfill the requirements of the CAA and the Regional Haze Rule. See §§ 40-8.2-201 to -210, C.R.S$.2018. Under the CACJA, rate-regulated utility companies that own coal-fired electric generating facilities in Colorado were required to submit emission reduction plans to the Colorado Public Utilities Commission (PUC) on or before August 15, 2010. § 40-8.2-204(1), C.R.S.2013. CACJA further required that utility companies consult with the CDPHE in developing their plans, prior to submission to the PUC. § 40-3.2-204(2)(b), C.R.S.2018. A final emission reduction plan under CACJA must be consistent with "the current and reasonably foreseeable requirements of the [CAA]," and must "include a schedule that would result in full implementation of the plan on or before December 81, 2017." § 40-8.2-204(2)(b)(I), (2)(c), C.R.9.2018.

T7 Onee a utility company submits a plan to the PUC, the PUC is required to "review the plan and enter an order approving, denying, or modifying the plan" to ensure consistency with federal and state requirements. § 40-3.2-205(2), C.R.S.2018.

T8 After a utility company files a plan with the PUC, the AQCC is required to schedule a hearing to determine whether the plan should be incorporated into Colorado's SIP. § 40-3.2-208(1), C.R.S8.2018. However, the AQCC cannot act on the plan until the PUC finally approves it. § 40-3.2-208(2)(a), C.R.S.2018. All proceedings conducted by the AQCC in relation to a proposed plan require "public notice and an opportunity for the public to participate." §§ 25-7-110(1), 40-8.2-208(2)(c), C.R.S.2018. These proceedings must comply with the rulemaking procedures in the Colorado Administrative Procedure Act (APA), section 24-4-108, C.R.S.2013. See § 25-7-110(1) (requiring sixty-day notice and compliance with the rulemaking requirements of the APA for the adoption, promulgation, or modification of any air quality standard or regulation); § 25-7-1883(8), C.R.S.2013 (requiring compliance with the APA when a proposed SIP amendment contains terms more stringent than federal requirements). The AQCC's rulemaking procedures are referred to as "Phase III Rulemaking." Onee the AQCC approves the plan, it is incorporated into Colorado's SIP, subject to legislative review and EPA approval.

D. Legislative Review of the SIP Amendments

19 Section 25-7-188(1), C.R.S.2018, requires the AqQ@CC to submit an annual summary of any additions or changes to Colorado's SIP to the General Assembly's Legislative Council. The Legislative Council is an executive committee consisting of six senators, six representatives, and the leadership of both the Senate and House. § 2-3-301(1), C.R.S.2018. Section 2-38-308, C.R.S.2013, defines the functions of the Council, which include

collecting] information concerning the government and general welfare of the state; . examin[ing] the effects of constitutional provisions and statutes and ree-ommend{ing] desirable alterations; consider[ing] important issues of public policy and questions of statewide interest; ... [and] prepar[ing] for presentation to the members and various sessions of the general assembly such reports, bills, or otherwise, as the welfare of the state may require.

See also § 2-8-311(1)(b), C.R.S.2018 (Legislative Council shall "[elncourage and assist state officials and employees to cooperate with officials and employees of ... the federal government").

{ 10 Onee the annual summary is submit, ted, one of two scenarios can occur.

{11 First, the General Assembly may choose not to act, in which case the SIP is submitted to the EPA for final approval. § 25-7-188(2)(b), C.R.98.2013.

{12 Second, any member of the General Assembly may request the Legislative Council to hold a hearing to review the additions or changes to the SIP. § 25-7-138(2)(a), C.R.S$.2018. The purpose of such a hearing is to "determine whether the addition or change to the SIP element accomplishes the results intended by enactment of the statutory provisions under which the addition or change to the SIP element was adopted." Id. At the conclusion of the hearing, the Legislative Council may recommend the introduction of a bill either to reject or to approve the proposed SIP amendments for submission to the EPA. Id.

E. Public Service Company's Emission Reduction Plan

1 13 Before the deadline for filing emission reduction plans, the Public Service Company of Colorado (PSCo)² collaborated with CDPHE to develop an emission reduction plan, which was eventually submitted to the PUC and approved by the PUC and the AQCC. Accordingly, the AQCC sent a summary of the proposed SIP changes to the Legislative Council for review and approval on January 14, 2011.

14 In response to the summary of the SIP amendments, several state legislators requested the Legislative Council conduct a hearing to review the SIP amendments under section 25-7-183(1). In their request, the legislators cited "serious concerns" regarding whether the AQCC's and the PUC's analysis and approval of the SIP amendments were conducted in accordance with the agencies' duties under the APA. See §§ 24-4-101 to -108, C.R.S.2018. Specifically, the request noted that the AQCC provided the public with three weeks to review and comment on the proposed SIP amendments, when by statute it was required to provide sixty days notice. See § 25-7-110(1). The request also noted that the agencies, in violation of the APA, had failed to allow the public an opportunity to comment on certain substantive determinations.

T15 Accordingly, on March 25, 2011, the Legislative Council held a hearing on the SIP amendments. During the hearing, representatives of the CDPHE, the AQCC, and multiple energy companies testified regarding the SIP amendments and the procedures employed by the PUC and AQCC. Members of the public also testified on their own behalves. At the conclusion of the hearing, the Legislative Council voted unanimously, seventeen to zero, to recommend that a bill be drafted to ratify the SIP amendments.

F. HB 11-1291

{16 Following the Legislative Council hearing, HB 11-1291 was introduced in the House of Representatives. The first portion of the bill included a legislative declaration, which stated that it was the intent of the General Assembly to approve the SIP amendments proposed by the AQCC on January 14, 2011. The second section of the bill amended section 25-7-183.5 by adding the following subsections:

(2) Pursuant to section 25-7-188, the following revisions to the state implementation plan (SIP), which were adopted by the air quality control commission on the dates indicated and received by the legislative council for review, are approved for incorporation into the state implementation plan:

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(bb)(I) The "Colorado Visibility and Regional Haze State Implementation Plan for the Twelve Mandatory Class I Federal Areas in Colorado," adopted by the air quality control commission on January 7, 2011.

(I1) The automatic expiration of the rules contained in the plan specified in subpara-graph (1) of this paragraph (bb) that were adopted on January 7, 2011, and that are therefore scheduled for expiration on May 15, 2012, is postponed, effective May 15, 2011.

1 17 Following Senate and House approval, the bill was signed into law by Governor Hickenlooper on May 4, 2011. Ch. 144, see. 2, § 25-7-1383.5(2), 2011 Colo. Sess. Laws 502. On May 25, 2011, the Governor submitted the proposed SIP amendments in section 25-7-133.5 to the EPA for review. On September 11, 2012, the EPA announced its approval of the SIP amendments.

II. Factual and Procedural Background

118 CMA is a trade association whose members include both individuals and organizations engaged in the exploration, production, and refining of coal. On March 16, 2011, following the AQCC's approval of the SIP amendments but prior to the Legislative Council's hearing, CMA filed its complaint for judicial review in this case. The complaint sought review of the AQCC's Phase III Rulemaking, alleging that the AQCC had failed to (1) provide sixty days notice for CMA's members to comment on the proposed SIP amendments, and instead only provided three weeks notice, in violation of section 25-7-110(1); (2) conduct rulemaking procedures with respect to certain substantive terms in the proposed SIP amendments in violation of section 24-4-102(15), C.R.S. 2013; (8) conduct necessary investigation pri- or to the rulemaking process in violation of section 25-7-102, C.R.S. 2018; (4) provide notice of portions of the proposed SIP amendments that contained terms more stringent than the CAA in violation of section 25-7-110.5(5)(a), C.R.S.2018; and (5) address the "sound economic conditions of the energy producing communit{y]" in violation of seetion 40-3.2-202(8), C.R.S.2018. The complaint further alleged that CMA's members were adversely affected by the AQCC's rule-making, because under the amended SIP, Colorado utility companies would purchase three to four million tons less coal per year from CMA members.

1 19 CMA's complaint asked the trial court to invalidate the proposed SIP amendments adopted by the AQCC, vacate the Phase III Rulemaking, and renotice it to the public, based on the AQCC's failure to comply with the above-noted Colorado statutes.

1 20 Following the passage of HB 11-1291, the trial court requested oral argument on the issue of whether CMA's claims were moot. After oral argument, the trial court issued an order concluding that a ruling in favor of CMA would have no practical effect due to the enactment of HB 11-1291, and, thus, CMA's claims should be dismissed as moot. CMA moved the court to reconsider, relying on existing cases not previously cited, including Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145 (7th Cir.1983). The trial court denied the motion to reconsider without making additional findings of fact or conclusions of law.

III. Mootness

121 CMA, on the one hand, asserts that the trial court erred by dismissing its claims as moot, because a ruling in its favor could lead the EPA not to enforce the SIP amendments, notwithstanding the enactment of HB 11-1291. The agencies, on the other hand, assert that such an order would have no practical effect because the enactment of HB 11-1291 rendered irrelevant any procedural violations by the AQCC. We agree with the agencies.

A. Legal Standards

"A case is moot when the relief sought, if granted, would have no practical legal effect on the controversy." Gresh v. Balink, 148 P.3d 419, 421 (Colo.App.2006).

123 We review de novo the legal question of whether a case is moot. See generally Ashton Props., Ltd. v. Overton, 107 P.3d 1014, 1017 (Colo.App.2004) (questions of law are reviewed de novo).

124 Our analysis of mootness here requires statutory interpretation. We likewise review de novo issues of statutory interpretation and legislative intent. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.2010); Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo.App.2009).

125 When interpreting a statute, we strive to adopt the statutory construction that best effectuates the legislative purposes. Smith, 230 P.3d at 1189. To determine the legislative intent, we look to the plain language of the statute, giving the language its commonly accepted and understood meaning. Id. When the plain language of the statute is clear and unambiguous, we apply the statute as written. Id.

B. Discussion

126 CMA sought a declaration that the AQCC violated section 25-7-110, and requested that the trial court invalidate the BART Alternative Plan adopted by the AQCC. After the plan was submitted to the Legislative Council, however, the Legislative Council held a hearing to review the plan under section 25-7-188(2)(a). The plan was ultimately approved by the General Assembly and signed by the governor. Therefore, a challenge to the AQCC's procedural violations does not affect the validity of the statute. See Vagneur v. City of Aspen, 2018 CO 13, 157, 295 P.3d 498 (it is not "unusual for legislative acts to trigger changes to administrative practices, or to have the effect of reversing or rendering moot prior administrative actions").

1 27 Additionally, section 25-7-183 contemplates three primary methods to submit a SIP to the EPA. The first method is the course of action taken in this case-a hearing by the Legislative Council followed by a vote by the General Assembly:

[Alny member of the general assembly may make a request in writing to the chairperson of the legislative council that the legislative council hold a hearing or hearings to review any addition or change to elements of the SIP contained in the report submitted pursuant to subsection (1) of this section. Upon receipt of such request, the chairperson of the legislative council shall forthwith schedule a hearing to conduct such review. Any review by the legislative council shall determine whether the addition or change to the SIP element accomplishes the results intended by enactment of the statutory provisions under which the addition or change to the SIP element was adopted. The legislative council, after allowing a public hearing preceded by adequate notice to the public and the commission, may recommend the introduction of a bill or bills based on the results of such review.

§ 25-7-188(2)(a).

1 28 Here, pursuant to this section, a hearing was requested, a bill was introduced, and the bill was ultimately enacted into law. Significantly, there has been no challenge to the validity of the statute or the procedures employed to enact it.

129 The second method involves inaction by the Legislative Council, and therefore, submittal of the AQCC's plan directly to the EPA for final approval. § 25-7-188(2)(b).

T 30 Under the third method, "[alny member of the general assembly ... introducefs] a bill to modify or delete all or a portion of the SIP or any rule or additions or changes to SIP elements which are a component thereof." § 25-7-188(2)(c), C.R.8.2018.

131 Had the SIP in this case been submitted to the EPA through the second method, and the legislature not been involved, a finding of a procedural violation would have had a practical effect on the controversy. That was the situation in Sierra Club, 716 F.2d 1145, on which CMA relies. But that is not the situation in this case. Rather, here, the General Assembly approved the SIP by enacting a statute. When the legislature "enacts intervening legislation that definitively resolves the issues a litigant seeks to put before us, the claims are moot and we are precluded from deciding them." Nuclear Emergy Inst., Inc. v. Envtl. Prot. Agency, 378 F.3d 1251, 1309 (C.A.D.C.2004). This is because "[nlo determination as to the soundness of the administrative and executive actions leading up to" the statute's enactment, will undo its binding effects. Id. We therefore disagree with CMA's speculation that the EPA could somehow challenge the validity of the statute based on some alleged procedural irregularity in agency proceedings.

I 32 Thus we conclude that where, as here, a SIP is ultimately approved by the General Assembly through enactment of a statute, a challenge to the AQCC's actions becomes moot upon passage of the statute. See id. (Congress' enactment of a law that approved a site for development of a nuclear repository rendered the administrative actions leading up to the law's enactment moot); Mobil Oil Corp. v. United States EPA, 35 F.3d 579, 585 (D.C.Cir.1994) (challenge to EPA interim final rule rendered moot by passage of subsequent statute that effectively codified preexisting EPA rule).

133 Moreover, it does not matter that courts have authority to review ageney action pursuant to the APA. We are aware of no authority for the proposition that a challenge to agency action pursuant to the APA is somehow immune from being rendered moot. The power of judicial review simply does not extend to moot questions.

€34 Because the General Assembly approved the SIP through the passage of seetion 25-7-1338.5(2)(bb), and the CMA does not challenge the validity of that statute, we conclude that the case is moot.

1 35 Judgment affirmed.

JUDGE FOX specially concurs. JUDGE TAUBMAN dissents.

4 36 Appendix A

Acronym Chart

APA-Administrative Procedure Act

AQCC-Colorado Air Quality Control Commission

BART-Best Available Retrofit Technology

CAA-Federal Clean Air Act

CACJA-Clean Air-Clean Jobs Act

CDPHE-Colorado Department of Public Health and Environment

CMA-Colorado Mining Commission

EPA-Environmental Protection Agency

PSCo-Public Service Company of Colorado

PUC-Colorado Public Utilities Commission

SIP-State Implementation Plan

1 . Appendix A to this opinion provides a chart summarizing the acronyms used herein.

2 . PSCo is a rate-regulated utility company that operates coal-fired generating facilities in Colorado.