Colorado Mining Ass'n v. Urbina

JUDGE TAUBMAN

dissenting.

153 Everyone agrees that courts should not address issues when their decisions will have no practical legal effect. The majority concludes that the enactment of a statute by the General Assembly approving proposed air quality regulations, for final approval by the Environmental Protection Agency, moots the challenge to the rulemaking procedure employed in adopting those regulations.

54 I respectfully disagree. In my view, the General Assembly approved only the substance of the proposed regulations, but Colorado's Administrative Procedure Act (APA) gives plaintiff, the Colorado Mining Association (CMA), a statutory right to litigate its claims that the APA's rulemaking procedures were not properly followed. Procedural fairness demands no less.

[ 55 I would hold that the actions of the Legislative Council and subsequently the General Assembly did not moot the case because a ruling in favor of CMA could lead the Environmental Protection Agency (EPA) to disapprove of the State Implementation Plan (SIP) amendments, notwithstanding the legislature's enactment of HB 11-1291.

156 As the majority notes, CMA mounts five challenges to the APA rulemaking procedures: the Colorado Air Quality Control Commission (AQCC) 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), C.R.S.2013; (2) define "reasonably foreseeable requirements" of the federal Clean Air Act (CAA) in violation of section 24-4-102(15), C.R.S8.2013; (3) 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; (4) conduct necessary investigation before initiating the rulemaking process in violation of section 25-7-102, C.R.S.2018; and (5) address the "sound economic conditions of the energy producing communitly]" in violation of seetion 40-8.2-202(8), C.R.S.2018. CMA also contended that AQCC's rulemaking process would adversely affect its members because the amended SIP would require Colorado utility companies to purchase three to four million tons less coal per year from CMA members. Because of these alleged violations and injuries, CMA requested the trial court to invalidate the proposed SIP amendments adopted by the AQCC, vacate the Phase III Rulemaking, and renotice it to the public.

157 However, the trial court found that the General Assembly's passage of HB 11-1291 mooted CMA's challenges and did not decide the case on the merits. On appeal, CMA asserts that the legislature's approval of HB 11-1291 did not moot the case; rather, a trial court's invalidation of the AQCC's procedures would preclude the legislature from enforcing the SIP under Sierra Club v. Indiana-Kentucky Elec. Corp., 716 F.2d 1145, 1152-58 (7th Cir.1983). In contrast, defendants (collectively the agencies) 1 argue that such an order would have no practical effect because the enactment of HB 11-1291 superseded any procedural violations by the AQCC. I agree with CMA, and accordingly, I would conclude that the case is not moot, reverse the trial court's judgment of dismissal, and remand the case to the trial court for consideration of CMA's claims on the merits.

I. Applicable Law

158 Whenever possible, a court should resolve a case on its merits. Stell v. Boulder Cnty. Dep't of Soc. Servs., 92 P.3d 910, 914 (Colo.2004). However, "[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).

T 59 Sierra Club demonstrates that a state court's invalidation of an EPA-approved SIP on state procedural grounds would have a practical legal effect on the enforceability of that SIP. 716 F2d at 1152-58. There, Indiana submitted a SIP to the EPA, which the EPA subsequently approved. Id. at 1147. Approximately three years later, an *573 Indiana state trial court held certain provisions of the SIP invalid on procedural grounds. Id. Four years later, the Indiana Court of Appeals affirmed the trial court, holding that the agency that approved the SIP had failed to submit written findings, and therefore had violated the state's administrative procedure act, rendering portions of the SIP invalid. Id.; see Ind. Envtl. Mgmt. Bd. v. Indiana-Kentucky Elec. Corp., 181 Ind.App. 570 , 393 N.E.2d 213 (1979). However, "[dlespite the state court ruling, the Sierra Club brought suits [in federal court to enforce the relevant portions of the SIP] against alleged polluters." Sterra Club, 716 F.2d at 1147 .

T60 Although the Sterra Club court did not expressly address mootness, it effectively did so, holding that the EPA could not enforce a SIP that was adopted in violation of a state's administrative procedure act. Id. at 1148 . The court reasoned that, "[blecause administrative actions taken without substantial compliance with applicable procedures are invalid," where a state presents the EPA with a proposed SIP that was developed with procedural irregularities, it is as if that SIP was never proposed. Id. The court also noted that federal precedent encouraged, if not mandated, that challenges to SIPs be brought in state courts. Id. at 1151 . Accordingly, the court reasoned that if the EPA could continue to enforce a SIP that was invalidated by a state court, the state court review would be "rendered utterly meaningless." Id. at 1149 ; see also N.M. Envtl. Improvement Div. v. Thomas, 789 F.2d 825, 833 (10th Cir.1986) ("When [an] approved SIP contains an element that is invalidated by virtue of state law, adoption by the EPA is also invalidated. The status is as if the state had not submitted a SIP.").

IIL. Analysis

I 61 I disagree with the majority's conclusion that when a SIP is ultimately approved by the General Assembly, a challenge to the AQCC's actions becomes moot upon passage of the statute. The majority relies on Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1309 (C.A.D.C.2004), and Mobil Oil Corp. v. United States EPA, 35 F.3d 579, 582-83 (D.C.Cir.1994), both of which are distinguishable.

T62 In Nuclear Energy Inst., Inc., 373 F.3d at 1309 , Congress' enactment of the Resolution to develop a repository in Yucca Mountain mooted plaintiff's contentions. There, the state of Nevada challenged the Department of Energy's (DOE's) site-suitability criteria, the Energy Secretary's and President's recommendation to develop the repository, and the final environmental impact statement (FEIS) used to support the Secretary's and the President's recommendations regarding the Yucca site. Id. However, the court held that Congress' approval of the Yucca site resolved the state's challenges because those challenges were directly related to the issue of whether the Yucea site was properly selected for development as a repository. Id. The court found that Congress unambiguously overruled the state's notice of disapproval of the Yucca site for the development of a repository and allowed DOE to seek authorization from the Nuclear Regulatory Commission (NRC) to construct and operate a repository at the site. Id. at 1809-10. The court also noted that the Congressional floor debate on the Resolution confirmed "that the members of Congress intended the Resolution to approve the Yucca site, conclude the site-selection process, and permit DOE to proceed to seek a license for the repository." Id. at 1810. Therefore, Congress' approval of the Resolution mooted the state's contentions. Id.

163 In Mobil Oil Corp, the petitioners' challenge was also moot because Congress provided that an interim final EPA rule "shall not be terminated or withdrawn until revisions are promulgated and become effective." Id. at 581. Specifically, the court held that Congress "expressed a firm intent" to preclude review of the rules challenged by Mobil. Id. at 588. Thus, the D.C. Cireuit held that the case was moot.

T 64 Here, however, the General Assembly never addressed CMA's challenges. In fact, neither the General Assembly nor the Legislative Council intended either implicitly or explicitly to validate the AQCC's rulemaking procedures by approving the SIP amendments. In the absence of such intent, the *574 General Assembly's enactment of HB 11-1291 did not moot CMA's contentions.

1 65 Therefore, in my view, Sterra Club is persuasive with respect to CMA's challenges under the APA, even though the General Assembly approved the SIP. In reaching this conclusion, I recognize that legislative approval of the SIP amendments presents a factual scenario different from that presented in Sterra Club. However, this distinction is not material because, as discussed below, the legislative approval of the SIP amendments did not validate the AQCC's rulemak-ing procedures or otherwise preclude their judicial review. Accordingly, should the trial court declare the AQCC's rulemaking procedures invalid, the EPA could choose not to enforce the proposed SIP amendments, notwithstanding the enactment of HB 11-1291.

T66 The Legislative Council heard testimony regarding alleged procedural violations by the AQCC, but it did not decide whether the AQCC complied with the APA. Section 25-7-183(2)(a) required the Council to determine only whether the proposed SIP amendments accomplished the results intended by the Regional Haze Rule and the CAA. Further, while the Council has the statutory authority to "examine the effects of ... statutes and recommend desirable alterations," determining whether an agency complied with the APA is not one of its enumerated powers. See $ 2-3-803(1)(b), C.R.S.2018. Accordingly, because the Council was not empowered to determine whether the AQCC's rulemaking procedures were proper, I conclude that its approval of the SIP amendments did not constitute either express or implied approval of the AQCC's procedures.

T 67 Further, even if the Legislative Council implicitly approved the rulemaking procedures, such an approval could not preclude CMA's statutory right to judicial review under the APA. Unlike in Mobil Oil, where Congress explicitly precluded judicial review, here, neither the language of HB 11-1291 nor the Legislative Council's and General Assembly's actions reflect an intent to limit judicial review of the AQCC's rulemaking procedures. Rather, they reflect only the Legislative Council's conclusion that the SIP amendments accomplished the results intended by the CAA and the Regional Haze Rule.

€ 68 This conclusion is consistent with the APA, which provides that final agency action "shall be subject to judicial review as provided in this section." § 24-4-106(@2), C.R.S. 2018. 2 The use of the word "shall" indicates the General Assembly intended the provision to be mandatory. Associated Gov'ts v. Colo. Pub. Utils. Comm'n, 2012 CO 28, 115 , 275 P.3d 646 ("[uJnless context dictates otherwise, 'shall denotes a mandate"); see also Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 , 106 S.Ct. 2183 , 90 L.Ed.2d 623 (1986) (a strong presumption favors judicial review of agency actions); Home Builders Ass'n v. Pub. Utils Comm'n, 720 P.2d 552, 562 (Colo.1986) (finding an agency rule-making action void for failure to comply with proper procedures). In other words, the General Assembly expressly stated that all "final agency action" shall be subject to judicial review. § 24-4-106(2); see also § 24-4-108, C.R.S.2018 (requiring agencies to keep a record of rulemaking procedures to facilitate judicial review).

T 69 In contrast, section 25-7-188, C.R.S. 2018, does not authorize the General Assembly to supplant the APA's judicial review procedures with respect to SIP amendment rulemaking. Thus, to hold that the Legislative Council's and General Assembly's actions moot judicial review of an agency's rulemak-ing procedures would thwart the express purpose of section 24-4-106 without an expression of intent by the legislature supporting such a conclusion. See $ 2-4-201(1)(b), C.R.98.2018 (in enacting a statute, it is presumed the entire statute is intended to be effective). Accordingly, I conclude that the legislature intended the APA to apply to SIP amendment rulemaking, and thus, the enactment of HB 11-1291 does not reflect legislative approval of the AQCC's rulemaking procedures.

T 70 The lack of contrary authority further bolsters my position that the case is not *575 moot. The agencies do not cite to authority that (1) required the Legislative Council to examine whether the procedures employed by the AQCC in approving the SIP amendments complied with the APA or (2) granted the Legislative Council the power to review whether an agency properly complied with the APA, nor am I aware of any. Nor do the agencies cite to any law, legislative history, or portion of the record that demonstrates that the General Assembly intended that enactment of HB 11-1291 would preclude judicial review of alleged procedural violations in the AQCC's rulemaking procedures under the APA.

171 Finally, I recognize that the Legislative Council took testimony regarding the alleged procedural violations in the SIP rule-making procedures, and that the Council may have considered these alleged violations in making its recommendation to the General Assembly. Even so, such consideration may not overcome CMA's right to judicial review of its APA challenges.

T 72 CMA contends that the ageney did not provide enough time for comments and rule-making, and therefore, in its view, the trial court should invalidate the amended SIP. I agree.

T 73 Because the General Assembly did not intend to preclude judicial review of the AQCC's rulemaking procedures, I conclude that a trial court's decision to invalidate the AQCC's rulemaking procedures could have at least two practical legal effects. See Gresh, 148 P.3d at 421 . First, the trial court may remedy the AQCC's violation by requiring it to renotice the rule and allow for additional public comments. Such a remedy may be appropriate as demonstrated by federal cases interpreting the federal Administrative Procedure Act. See Wagner Electric Corp. v. Volpe, 466 F.2d 1018, 1021 (3d Cir.1972); Mobil Oil Corp., 35 F.3d at 584-85 . Second, under Sterrg Club, the EPA could cease enforcement of the amended SIP in response to the state court ruling. See Sierra Club, 716 F.2d at 1148 ; Thomas, 789 F.2d at 883 . The EPA could take such action notwithstanding the enactment of HB 11-1291. As in Sierra Club, if the district court here were to determine that the APA was not properly followed, it would be as if the SIP had never been proposed, thereby rendering the General Assembly's approval of the SIP without significance. In the alternative, armed with a decision declaring the amended SIP invalid under the APA, CMA could bring an action in federal court to prevent EPA enforcement of the amended SIP, notwithstanding the enactment of HB 11-1291.

1 74 Accordingly, because a decision invalidating the AQCC's procedures could have a practical legal effect, I conclude that CMA's claims are not moot. In reaching this conclusion, I do not consider whether this case would have been moot had the General Assembly explicitly approved of the AQCC's rulemaking procedures. Nor am I unmindful that the Legislative Council approved the SIP unanimously and recommended its enactment to the General Assembly. 3 I simply conclude the case is not moot because a decision invalidating the AQCC's procedure could have a practical effect. 4

T 75 Therefore, I would conclude that the trial court erred by dismissing CMA's claims as moot and reverse the trial court's judgment of dismissal, as well as remand the case to the trial court for consideration of CMA's claims on the merits.

. Defendants are the 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.

. Under section 24-4-106(1), C.R.S.2013, the General Assembly created judicial review of « agency rulemaking procedures by assuring "a plain, simple, and prompt judicial remedy to persons or parties adversely affected or aggrieved by agency actions."

. I recognize the point made in the special concurring opinion that numerous agencies have spent a great deal of time and effort in considering the proposed regulations and obtaining the legislature's approval of the SIP. Nevertheless, these efforts do not moot CMA's procedural challenges to the SIP.

. In so concluding, I offer no opinion regarding the merits of CMA's claims, other than to conclude that the claims are not moot. Accordingly, in my view, the SIP amendments would continue to be presumed valid, unless found otherwise by the district court on remand. Further, I note that even if the trial court were to conclude that the SIP amendments are invalid for lack of notice, the proper remedy would be to require the AQCC to renotice the rule and allow for additional public comment. Following a new comment period, the AQCC would have discretion to promulgate the same SIP amendments as it did in January 2011. Thus, any concern that invalidation of the AQCC's procedure would unduly burden regulated entities is premature.