Colorado Mining Ass'n v. Urbina

JUDGE FOX

specially concurring.

37 I agree that this case is moot for the reasons the majority opinion provides. I disagree with CMA's suggestion that it has been deprived of the opportunity to lodge objections to the AQCC's rulemaking. The record in this case suggests otherwise. Moreover, the regulated entities have acted in reliance on agency decisions and some of those actions may be difficult or impossible (not to mention expensive) to reverse at this late stage. Our General Assembly has spoken clearly about cleaning our air in more than one statute, including, as relevant here, in HB 11-1291 and in the CACJA. And, here the process resulting in the SIP modifications was an extensive and coordinated process involving multiple governmental entities who afforded the public, regulated business, and others-including CMA-ample opportunity to object and to be heard. CMA's invitation for courts to second-guess the highly technical and painstaking work that CDPHE, the AQCC, and the PUC have undertaken to implement the General Assembly's directives, when the legislative action implementing that work is not challenged, is misguided.

I. The Record Supports The Trial Court's Actions

A. Detrimental Reliance

€38 Prolonging the process has caused, and will continue to cause, detrimental reliance on HB 11-1291. Even as of the January 7, 2011, hearing before the AQCC, regulated entities had acted in reliance on the SIP negotiation process and on the PUC's December 15, 2010, decision. It would come as no surprise if additional actions, relying on the PUC and the AQCC decisions, had taken place in the two and a half years since then. The record substantiates that some of those actions may be difficult and expensive to reverse now. A lawyer representing one of the public utilities at the January 7, 2011, AQCC hearing described the process as fol *569 lows: "When we shut down a power plant we will tear it down. We will recover as much of the material as we can, reuse what we can.... We will remediate the site, and then we'll reuse the site for other purposes." The actions taken in reliance on the PUC's and AQCC's decisions-and the General Assembly's later implementation of those decisions by means of HB 11-1291-should not be underestimated. See generally Tarco, Inc. v. Conifer Metro. Dist., 2018 COA 60, 139 , 816 P.3d 82 ("Equitable estoppel is based on principles of fair dealing and is designed to prevent manifest injustice.").

B. CMA Fully Participated in the AQCC and PUC Processes

1. AQCC and PUC Processes

139 The context in which the AQCC conducted the rulemaking regarding the Regional Haze SIP is significant because (1) the AQCC's actions were part of a broader coordinated process necessary to implement the CACJA, §§ 40-3.2-201 to -210, C.R.S.20183; (2) the CACJA contained hard deadlines for implementation; and (8) the CACJA included a legislative declaration that encouraging "Colorado's public utilities to reduce emissions of air pollutants and to increase energy efficiency are matters of statewide concern." § 40-3.2-101, C.R.S.2018; see § 40-3.2-202, C.R.S.20183.

11 40 The CACJA imposed various requirements on the PUC, CDPHE, and AQCC. Among those requirements was a directive to "expeditiously accelerate coal plant retirements," § 40-3.2-206(1)(a), C.R.S.2013, including by "replacing or repowering" coal generation with natural gas generation or other low emitting resources. Id. The CACJA aptly recognized that its directives needed to be coordinated with the Regional Haze elements of the state's SIP. $ 40-8.2-208(2)(a), see also § 40-3.2-205(2)(b)(T), C.R.8.2018.

1 41 Consistent with the CACJA and after coordinating with the AQCC (which in turn consulted with CDPHE), 1 PSCo filed its plan to reduce emissions on August 13, 2010. See § 40-3.2-204(1), C.R.S.2018 (requiring emissions reduction plan no later than August 15, 2010). On September 2, 2010, in accordance with section 40-8.2-208(2)(a) of the CACJA and as relevant to CMA's challenge, the AQCC provided its Notice of Proposed Rule-making, followed by its September 21, 2010, Notice of Public Rulemaking Hearing. Both notices concerned the Regional Haze element of Colorado's SIP (including PSCo's emissions reductions plan). The September 21, 2010, Notice states, in relevant part:

The Commission will also consider a complete replacement of the previously adopted State Implementation Plan (SIP) for Regional Haze, largely in response to comments provided by and discussions with U.S. EPA. Substantive changes to the Regional Haze SIP include, but are not limited to, a description of the PSCo of Colorado's BART alternative in Chapter 6 of the SIP pursuant to [the Clean Air-Clean Jobs Act]. The Commission will consider any alternative proposals submitted to address the issues in this notice.... Buch proposals may include, but [are] not . limited to, alternatives to ... the PSCo of Colorado's BART alternative submitted to the Commission consistent with [the Clean Air-Clean Jobs Act,] including any emissions reduction plans approved by the Colorado Public Utilities Commission;] . any other regional haze alternatives proposals for - Reasonable - Progress Sources; and any outstanding BART determinations that the Commission has not previously made.

(Emphasis added.)

« 42 The public and regulated entities alike were on notice that the Regional Haze components of Colorado's SIP were in transition. They also knew how (and by when) to lodge their objections.

2. CMA's Participation in the AQCC and PUC Processes

T 43 Even if the CACJA had not notified the regulated community, including CMA, about its effect (or potential effect) on the state's SIP process (and I believe it did), the AQCC's notice unquestionably fairly apprised *570 interested parties of the PUC's concurrent and pivotal role in the proceedings to implement the CACJA's statutory directives. CMA understood the PUC's role As the record shows, not only did CMA have party status before the PUC, but it actively participated in the PUC proceeding.

44 The PUC and the AQCC each accepted written submissions in advance of their respective hearings. CMA submitted written comments to both entities. The PUC held evidentiary hearings in 2010, specifically on October 21, 22, 25, 26, 28, 29, and 30, and November 1, 2, 3, 18, 19, and 20. The PUC allowed all interested or affected parties to be heard, to examine and cross-examine witnesses, and to introduce evidence. After reviewing written submittals, the AQCC also conducted a hearing and gave interested parties an opportunity to voice their objections.

[ 45 The PUC concluded that it had "satisfied and exceeded minimum standards of statutory due process" by allowing all inter-venors to be "heard, examine and cross-examine witnesses, and introduce evidence." 2 The PUC directly addressed the argument CMA continues to advance, that PSCo's August 13, 2010, filing (its plan to reduce emissions) contained a single plan for which approval was sought. According to CMA, supplemental materials filed on October 25, 2010, contained "new plans" and therefore were untimely (CMA seems to argue that each time a new plan was evaluated, a new notice and comment period was triggered). The PUC, responding to this argument, pointed out that the August 18, 2010, emissions reduction plan contained numerous scenarios for consideration, all of which remained viable even after PSCo's preferred plan was rejected. See Regular Route Common Carrier's Conference v. Pub. Utils. Comm'n, 761 P.2d 787, 748 (Colo.1988) (where a state APA provision parallels the federal APA, it is appropriate to consider federal precedent and other commentary); see also S.Rep. No. 752, 79th Cong., Ist Sess. 14 (1945) (notice must only be "sufficient to fairly apprise interested parties of the issues involved"); American Med. Ass'n v. United States, 887 F.2d 760, 768 (7th Cir.1989) (examining the federal APA and its history to conclude that "notice need not identify every precise proposal which the agency may ultimately adopt" as long as it adequately apprises interested parties of the issues to allow them to participate) 3

1 46 The AQCC's notice also contemplated an evolving process and an opportunity for others to suggest emission reduction alternatives.

47 During the January 7, 2011, hearing, members of the AQCC asked thoughtful and probing questions of CMA's and Peabody Energy's respective counsel. 4 CMA's written submissions, oral presentations, and examination are well documented in the 7524-page record of AQCC's administrative proceedings. Nothing in that record substantiates that CMA's procedural (and other) concerns were not heard or were not considered. After its hearing, the AQCC addressed CMA's objections to the notice provision, recognizing its concerns, but also highlighted the duties under the CACJA. While the AQCC was open and receptive to comments, *571 it was cognizant of the CACJA deadlines. That the AQCC did not grant CMA (or Peabody) the additional delays it requested does not invalidate the AQCC's actions.

1] 48 After the AQCC adopted an emissions reduction plan as part of Colorado's Regional Haze SIP on January 7, 2011 (which includes the now challenged rulemaking), the AQCC submitted a report to the Legislative Council on January 11, 2011, as required by section 25-7-188(1), C.R.S.2018. Additional opportunity for public input was available as part of the Legislative Council's review, which resulted in recommendations to the General Assembly to approve the updates to Colorado's SIP. See § 25-7-183(2)(a), C.R.S.2018.

C. Opportunity to Comment Concerning HB 11-1291

1 49 The summary of the March 25, 2011, hearing, held pursuant to section 25-7-133(2)(a), states that the hearing was called to determine whether the AQCC acted "properly and in accordance with state and federal laws in incorporating the PSCo Emission Reduction Plan into the SIP." In addition to testimony from various individuals, 5 legislators received documents relevant to the issue. With two exceptions, all the speakers favored adoption of the SIP. The testimony and the materials provided to the Legislative Council-which materials would have been available to the public and the General Assembly-were designed to address the AQCC's compliance with state and federal law.

1 50 Senator Cadman and Speaker McNulty inquired about notice to the public. The legislators were educated about the AQCC's process and received reassurance that state laws, including procedural laws, were followed. William Allison, on behalf of the Colorado Department of Law and acting as counsel for CDPHE, specifically represented that the AQCC followed its normal procedures for public notice and public input. The administrative record of the AQCC proceedings substantiates that statement.

151 At the conclusion of the hearing, Speaker McNulty moved that the Legislative Council recommend a bill to ratify the changes and additions to the SIP, thereby postponing the automatic expiration of the rules contained in the then-existing SIP. The motion passed 6 and HB 11-1291 was later introduced in the House of Representatives. HB 11-1291 was approved by the House and the Senate and signed into law on May 4, 2011. Thus, another hearing addressing CMA's concerns in the district court would effectively repeat the hearing already held by the General Assembly. It is not the judiciary's role to second-guess the legislature, especially here, where doing so would not be in the interest of judicial economy and CMA had extensive opportunity to raise its concerns throughout the legislative process. See People v. Summit, 188 Colo. 421 , 428-29, 517 P.2d 850, 854 (1974). j

II. Conclusion

52 I concur in the majority's finding of mootness, especially where the record substantiates that (1) the regulated parties have acted in reliance on the PUC's and the AQCC's decisions; (2) the AQCC and PUC processes afforded CMA ample opportunity to be heard; (8) the General Assembly has spoken clearly and unequivocally and courts need to be cautious not to impinge on the policy choices of that co-equal branch of government; and (4) courts need to be careful in second-guessing subject-matter experts. Accordingly, I join in affirming the trial court's decision.

. See §§ 40-3.2-204(2)(b), 40-3.2-205(1}-(2), C.R.S.2013.

. CMA intervened and sought party status in the PUC case. In addressing the procedural complaints lodged by CMA (and others), the PUC also concluded that because those parties had not "articulated a liberty or property interest at stake," or the "applicability of procedural due process standards," they were entitled to only statutory due process and that such process was afforded. In addition to the PUC's well-reasoned and thorough forty-four-page decision issued on January 26, 2011, the PUC references two earlier opinions addressing these same issues: Decision C10-125 and Decision C10-1328.

. This makes absolute sense. That an agency changes (or modifies) its approach to the issue does "not signify the failure of the administrative process" but rather it shows that the agency treats the notice-and-comment process seriously and is willing to modify its position as more information becomes available. See Am. Med. Ass'n, 887 F.2d at 767 . Requiring a new notice and comment every time a promulgated rule differs from the proposed rule would lead to "absurdity" in that the agency could "learn from the comments on its proposals only at the peril of starting a new procedural round of commentary." Id. at 768 ; accord Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615 , 632 & n. 51 (D.C.Cir.1973).

. Peabody Energy advanced many of the same arguments as CMA.

. - Speakers included representatives from the Office of Legislative Legal Services, from the AQCC, from CDPHE, from the Colorado Department of Law, from the Regional Air Quality Control Council, from industry, and from the public. CMA's counsel from the PUC proceeding appeared and voiced her concerns. Although our record contains the summary, it does not appear to contain all the materials provided to the legislators. The legislative history of HB 11-1291, including the tapes of the March 25, 2011, hearing, are available to us. See Hearings on H.B. 1291 before the Joint Comm. on Legislative Council, 68th Gen. Assemb., Ist Sess. (Mar. 25, 2011).

. The motion passed with seventeen affirmative votes (one legislator was excused from the proceedings).