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Defend Colorado v. Governor Polis.

2021 COA 8. No. 19CA1636.  Air Quality Control Commission—Clean Air Act—National Ambient Air Quality Standards.

January 28, 2021

Defend Colorado is a nonprofit organization that advocates for policies and regulations consistent with clean air legislation. The Colorado Department of Public Health and Environment (CDPHE) administers and enforces air quality control programs in Colorado. As part of its regulatory duties, CDPHE submits quarterly data of recorded levels of ozone at monitoring stations to the US Environmental Protection Agency (EPA). By May 1 of each year CDPHE must also submit to the EPA an air monitoring data certification letter certifying that its previous year’s data submissions were accurate and complete.

In February 2019, Defend Colorado petitioned the Colorado Air Quality Control Commission (Commission) to hold public hearings and issue a declaratory order requiring CDPHE to include supplemental information in its May 2019 certification intended to show the EPA that the recorded ozone levels in the Denver Metropolitan/North Front Range would have been lower, and would not have exceeded national ambient air quality standards for the 2015–17 period, if not for emissions from foreign countries and “exceptional” events such as forest fires. The Commission declined to decide the petition. Defend Colorado then brought a complaint in district court for declaratory and injunctive relief against the Commission and Governor Polis, asserting four claims for relief. The Commission and Governor Polis moved to dismiss, and the district court dismissed the petition.

On appeal, Defend Colorado argued that the district court erred by dismissing its claims under CRCP 12(b)(1) for lack of standing. However, the certification is a ministerial function of CDPHE over which the Commission has no oversight authority. Because the Commission could not grant the relief sought in Defend Colorado’s petition, it suffered no injury to a legally protected interest and thus does not have standing to assert its first two claims. Accordingly, the district court did not err in dismissing these claims.

Defend Colorado also argued that the district court erred by dismissing its third claim against the Governor and Commission and its fourth claim against the Governor for failure to state a claim on which relief can be granted. Defend Colorado asserted that the Governor improperly influenced the Commission in its decision to deny Defend Colorado’s petition. First, because the Commission has no oversight over the certification, no action taken by the Governor could have influenced it. Further, the complaint had no factual allegations to support its conclusory allegations. Therefore, the district court did not err in dismissing Defend Colorado’s third and fourth claims for relief because the substantive law does not support those claims.

Defend Colorado also contended that the district court erred by dismissing its first, second, and third claims without first receiving and considering the entire certified administrative record. However, Defend Colorado provided no authority requiring a court to review the entire administrative record before deciding a threshold standing issue. Further, because the matter was resolved before an answer date was established, the record was not due under CRCP 106(1)(4)(III). Therefore, the district court did not err.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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