Air Pollution Control Commission of the Colorado Department of Health v. Colorado-Ute Electric Ass'n
Docket: 82SC122
Court: Supreme Court of Colorado; November 15, 1983; Colorado; State Supreme Court
A complaint was filed by Colorado-Ute Electric Association, Inc. in Denver District Court, seeking a judicial review of the Colorado Air Pollution Control Commission's authority regarding the adoption of subsection (II)(H)(1)(a) of Regulation No. 3 under the Air Pollution Control Act of 1970. The trial court upheld the Commission's authority, but the Colorado Court of Appeals reversed this decision. The Colorado Supreme Court granted certiorari and determined that the case was moot due to a lack of continuing controversy, remanding the case to the Court of Appeals for dismissal of the appeal. The Air Pollution Control Commission, under the 1970 Act, has the power to adopt ambient air quality standards and emission control regulations, administered by the Air Pollution Control Division of the Department of Health. Regulation No. 3, effective January 19, 1976, outlines the criteria for granting emission permits, including compliance with both federal and state ambient air quality standards. Following the regulation's adoption, Colorado-Ute, a participant in the administrative process, initiated a legal challenge against the Commission and associated state defendants, supported by the Environmental Defense Fund, while other defendants aligned with Colorado-Ute or were dismissed from the case.
Colorado-Ute alleged that the Commission exceeded its statutory authority by adopting subsection (II)(H)(1)(a) of Regulation No. 3 (1976), claiming it conflicted with the legislative standards for air contaminant emission permits established by the 1970 Act. According to the Act, a permit should be granted unless it fails to meet applicable emission standards or interferes with federal ambient air standards. Colorado-Ute argued that the Commission could only require compliance with federal standards, asserting that the inclusion of state and local standards in Regulation No. 3 was an overreach. The trial court dismissed this argument, emphasizing the broad regulatory authority granted to the Commission and stating that limiting authority to federal standards would undermine the Act's purpose. The court also noted that the legislature explicitly restricted criteria for certain sources to federal standards when intended. Colorado-Ute's appeal was initially met with a ruling from the Colorado Court of Appeals that denied standing to challenge the regulation. However, the Colorado Supreme Court later reversed this decision, affirming standing and remanding the case for further consideration. Subsequently, the Commission repealed and reenacted Regulation No. 3 on June 5, 1980, mandating that state AAQ standards be considered only when no federal standards exist, with no provision for local standards.
The state defendants moved to dismiss the action, claiming it was moot due to new statutes and regulations. Colorado-Ute countered, asserting that permits issued under Regulation No. 3 (1976) remain valid under section 25-7-114(4)(k) of the new Colorado Air Quality Control Act, specifically referencing permits for Craig Station Units 1 and 2. The Commission argued that Colorado-Ute could not contest the permit conditions due to a failure to exhaust administrative remedies, as they could have sought review under the State Administrative Procedure Act. Colorado-Ute maintained that the validity of Regulation No. 3 was not moot, clarifying that the permit conditions were relevant only in relation to the regulation’s mootness.
The court of appeals found that the question of the Commission's authority in issuing Regulation No. 3 was moot, but upheld that Colorado-Ute's challenge to the permit conditions remained valid because they were ongoing. The court ruled that exhaustion of administrative remedies was unnecessary since Colorado-Ute's challenge involved statutory interpretation requiring judicial review. Ultimately, the court determined that the surviving issue was whether the Commission had the authority to require compliance with air quality standards as a condition for permit validity, concluding that it did not. This conclusion was based on statutory provisions mandating permit issuance if emission sources complied with regulations without conditions tied to ongoing compliance with air quality standards.
The state defendants subsequently petitioned for certiorari to review the court of appeals' decision, questioning the validity of Regulation No. 3, whether the court addressed the permit conditions appropriately, and if so, whether it resolved the issue correctly. The ruling established that only the validity of Regulation No. 3 was properly before the court, as indicated by the pleadings and pre-trial order.
The parties agreed that the permit conditions were presented solely as evidence to determine whether the validity of Regulation No. 3 (1976) was moot. Since Regulation No. 3 has been repealed, its validity is moot, and the narrow framing of the issue in the pleadings does not challenge any specific past application of that regulation. Future litigation regarding the effectiveness of Colorado-Ute's permits and the validity of Regulation No. 3 remains speculative and unaddressed at this time. Consequently, the court of appeals had no grounds to evaluate whether the conditions of Colorado-Ute's permits complied with the 1970 Act. The case is remanded to the court of appeals, instructing it to vacate its judgment and dismiss the appeal. Notably, the permits in question, issued before June 20, 1979, continue in effect under the Colorado Air Quality Control Act, which replaced the 1970 Act. The supplemental briefs indicated that the permits required continuous compliance with state ambient air quality standards, a condition upheld by the Commission after Colorado-Ute's attempts to modify it were denied. The state argued that the permit conditions were independent of Regulation No. 3 (1976) and would have been imposed based on other criteria. Additionally, Judge Berman dissented, asserting that the Commission had the authority to impose compliance conditions under the 1970 Act, highlighting a potential conflict with the majority opinion. Lastly, it was noted that the Craig Station permits also required compliance with federal air quality standards, which were invalidated by the court of appeals' decision.
