DISTRICT COURT, CITY AND COUNTY OF DENVER 

COLORADO 

Address: City and County Building 

 1437 Bannock Street 

 Denver, CO 80202 

Plaintiff: COLORADO MINING ASSOCIATION, 

vs. 

Defendants: CHRISTOPHER E. URBINA, in his capacity 

as Executive Director of the Department of Public Health 

and Environment for the State of Colorado; THE 

COLORADO DEPARTMENT OF PUBLIC HEALTH 

AND ENVIRONMENT; THE COLORADO AIR 

QUALITY CONTROL COMMISSION; and the AIR 

POLLUTION CONTROL DIVISION, an agency of the 

State of Colorado. 

 COURT USE ONLY 

Case No. 11CV2044 

Courtroom: 215 

ORDER 

 THIS MATTER comes before the Court originally on the filing of a Complaint 

for Judicial Review on March 16, 2011, challenging the adoption of certain rules by the 

Air Quality Control Commission (“the Commission”). In its Answer Brief filed March 1, 

2012, Defendants argued in part that the case ought to be dismissed as moot. The Court 

has reviewed all briefs and citations of authority submitted on this issue, as well as the 

Proposed Orders submitted by the parties. The Court held a hearing on May 10, 2012, 

hearing argument of counsel only on the issue of mootness. In addition, the Court has 

also reviewed applicable authority and the relevant portions of the Court’s file. The 

Court is fully advised in the premises. 

I. Standard of Review 

 The Administrative Procedure Act (“APA”) authorizes this Court to set aside an 

agency action if it is arbitrary or capricious, not in accord with the procedures or 

procedural limitations of the APA or other statutes, an abuse of discretion, or otherwise 

contrary to law. C.R.S. § 24-4-106(7). However, when issues presented in litigation 

become moot because of subsequent events, this Court may decline to exercise its 

jurisdiction to render an opinion on the merits of the dispute. Van Schaack Holdings, 

Ltd. v. Fulenwider, 798 P.2d 424, 426-27 (Colo. 1990). 

EFILED Document 

CO Denver County District Court 2nd JD 

Filing Date: Jun 6 2012 3:14PM MDT 

Filing ID: 44664486 

Review Clerk: Rebecca Blaire Horton
2 

II. Background 

A. Regional Haze 

 Regional Haze is visibility impairment produced by a multitude of sources over a 

broad geographic area. The visibility impacts are caused by emissions into the 

atmosphere of sulfur dioxide, oxides of nitrogen, and particulate matter. See 64 Fed. 

Reg. 35,714, 35,715 (Jul. 1, 1999). 

 The federal Environmental Protection Agency (“EPA”) has promulgated a 

Regional Haze Rule requiring states to submit State Implementation Plans (“SIPs”) to 

address regional haze. 71 Fed. Reg. 60,612 (Oct. 13, 2006). States were required to 

submit initial SIPs to EPA by December 17, 2007. 40 C.F.R. § 51.308(b). States must 

submit revised SIPs to EPA by July 31, 2018, and every ten years thereafter. 40 C.F.R. § 

51.308(f). Colorado submitted portions of its initial SIP to EPA in 2008-09. R. at 8. In 

2009, EPA identified deficiencies with the SIP. Colorado was then required to submit a 

revised SIP, covering the period up to 2018, by January 15, 2011, lest EPA promulgate a 

Federal Implementation Plan. Id. 

 A key element of the regional haze program is Best Available Retrofit 

Technology (“BART”) for existing major facilities placed into operation between 1962 

and 1977 that have the potential to emit more than 250 tons of visibility-reducing 

pollution a year. 64 Fed. Reg. at 35,737, 35,739. The Regional Haze Rule requires the 

SIP to include a list of BART sources and emission limits for each source. Id. If a state 

demonstrates that alternative measures will achieve greater reasonable progress toward 

the national visibility improvement goal, a state may adopt a BART Alternative. 71 Fed. 

Reg. at 60,614-15. 

B. The Colorado Clean Air – Clean Jobs Act 

 On April 19, 2010, Governor Ritter signed into law the Clean Air – Clean Jobs 

Act, HB 10-1365, codified at C.R.S. §§ 40-3.2-201 et seq. (“the Act”). The Act, in part, 

serves to fulfill the requirements of the Regional Haze Rule. C.R.S. §§ 40-3.2-208(1), 

208(2)(a). 

 The Act required rate-regulated electric utilities to develop emission reduction 

plans to be submitted for approval by the Colorado Public Utilities Commission (“PUC”). 

C.R.S. § 40-3.2-204(1). Prior to submission of a plan to the PUC, each utility was 

required to consult with the Colorado Department of Public Health and Environment 

(“CDPHE”). The CDPHE was required to comment on the plan and determine whether 

the plan was consistent with the current and reasonably foreseeable requirements of the 

federal Clean Air Act (“CAA”). C.R.S. § 40-3.2-204(2)(b)(II). Each emission reduction 

plan was required to include a schedule that would result in full implementation of the 

plan on or before December 31, 2017. C.R.S. § 40-3.2-204(2)(c). The Act required the 

PUC to enter an order approving, denying, or modifying the plan by December 15, 2010. 

C.R.S. § 40-3.2-205(2). Upon approval by the PUC, the air quality provisions of the plan 

were considered by the Commission for incorporation into Colorado’s Regional Haze 

SIP. C.R.S. § 40-3.2-208. 
3 

 Once approved by the Commission, SIPs must to be submitted to the Legislative 

Council for review and approval by the Colorado General Assembly pursuant to C.R.S. § 

25-7-133. After approval by the General Assembly, SIPs are submitted to the EPA for 

approval as required by C.R.S. § 25-7-133. Once approved by EPA, a SIP becomes 

enforceable under federal law. 

C. Public Service Emission Reduction Plan 

 On August 13, 2010, Public Service Company of Colorado (“PSCo”) filed its 

emission reduction plan with the PUC. R. at 3359, 3368. The CDPHE subsequently 

informed the PUC of its determination that the plan was consistent with reasonably 

foreseeable emission reduction requirements. R. at 3411. Ultimately, the PUC issued its 

order modifying and approving the plan on December 15, 2010. R. at 3356. The air 

quality elements of that approved plan were presented to the Commission for 

incorporation into the Regional Haze SIP as a BART Alternative. R. at 7244. The 

Commission adopted the plan as part of Colorado’s Regional Haze SIP on January 7, 

2011, and sent a SIP report to the Legislative Council on January 11, 2011, as required by 

C.R.S. § 25-7-133(1). R. at 6328-503. 

D. The SIP 

 Upon the Commission’s adoption of the Regional Haze SIP, the SIP was required 

to be submitted to the Colorado Legislative Council for review and approval by the 

General Assembly under C.R.S. § 25-7-133(1). Further, in accordance with C.R.S. 

§ 25-7-133(2)(a), any member of the General Assembly was permitted to request that 

Legislative Council hold a hearing to determine whether the SIP change “accomplishe[d] 

the result intended by enactment of the statutory provisions” at issue. As discussed 

below, a legislative hearing was requested. Legislative Council held the requested 

hearing on March 25, 2011. At that hearing, many of the issues in this case were 

presented to the Council members. The Council unanimously voted to send the SIP to 

the General Assembly for consideration. The bill approving the SIP was signed by 

Governor Hickenlooper on May 4, 2011. 

III. Procedural History of the Case 

A. CMA’s Challenge 

 CMA initiated this suit challenging the Regional Haze Rulemaking on March 16, 

2011. In its complaint, CMA alleges the State Defendants “failed to: (1) properly notice 

the SIP Rulemaking; (2) failed to vacate and renotice the rulemaking; (3) failed to 

conduct a proper visibility analysis of the proposal; (4) failed to determine within the SIP 

Rulemaking the meaning of the term ‘reasonably foreseeable requirements’ of the federal 

Clean Air Act; (5) included air quality requirements more stringent than federally 

required; and (6) failed to address the economic impact of the proposal on energy 

producing communities of Northwest Colorado.”1

 

 

1

 CMA subsequently abandoned this final claim. 
4 

 In its prayer for relief, CMA requested this Court undertake the following actions: 

A. Declaring that the [Commission’s] failure to vacate 

the Phase III proceedings of the SIP Rulemaking 

and renotice Phase III of the Rulemaking upon 

issuance of the final PUC order on February 3, 2011 

violated § 25-7-110(1). 

B. Declaring that the [Commission’s] failure to engage 

in formal rulemaking to adopt the standard and 

criteria for ‘reasonably foreseeable,’ and its 

application of that standard to determine whether 

the PSCo Emission Plan meets the ‘reasonably 

foreseeable’ CAA requirements was arbitrary and 

capricious and otherwise not in accordance with 

applicable law. 

C. Invalidating the PSCo proposed BART Alternative 

Plan adopted by the [Commission] in Phase III. 

D. Declaring that the [CDPHE’s] failure to conduct the 

required visibility analysis of the PSCo BART 

Alternative Plan before considering it for inclusion 

in the SIP Rules was arbitrary and capricious and 

otherwise not in accordance with applicable law. 

E. Invalidating the Phase III PSCo BART Alternative 

Plan included in the SIP Rules because the 

[CDPHE] and the [Commission] failed to comply 

with §25-7-110.5 (5)(a), by including standards that 

exceeded the requirements of the CAA. 

F. Invalidating the Phase III PSCo BART Alternative 

Plan included in the SIP Rules because the 

[CDPHE] and the [Commission] failed to prepare 

the SIP and conduct Phase III of the SIP 

Rulemaking in a manner that addressed the sound 

economic conditions of the energy producing 

communities of Northwest Colorado. 

G. Invalidating [Commission’s] SIP Rulemaking as it 

relates to Phase III as improper because it is: (1) 

unsupported by substantial evidence when the 

record is considered as a whole; (2) not supported 

by the required fiscal analysis; and is (iii) arbitrary 

and capricious and not in accordance with the law 

and should be set aside. 

H. Accelerate the proceedings under C.R.C.P. 

§ 106(a)(4)(VIII); and 

I. Grant such further relief as the Court deems just and 

proper. 
5 

 After the parties submitted their briefs, the Court ordered oral argument on the 

issue of mootness, which was raised by the Appellees and intervening parties either 

directly or by implication in briefs and prior pleadings. 

IV. Findings of Fact 

 Several Colorado state legislators requested a hearing on the Regional Haze SIP 

that is the subject of the instant case. See Defendants’ Reply in Support of Motion to 

Dismiss, Exhibit A. The legislators requested that the Legislative Council review the SIP 

changes to consider whether the notice and “reasonably foreseeable” determinations 

complied with the APA, and whether the SIP changes impermissibly included 

requirements more stringent than required by the federal Clean Air Act. Id. 

 At the hearing, held on March 25, 2011, the Legislative Council considered these 

issues and heard testimony from parties raising the same concerns about the SIP that are 

at issue in this case. See Defendants’ Reply in Support of Motion to Dismiss, Exhibit B 

(Staff Summary of Meeting, indicating the Legislative Council “discussed the stringency 

issue in detail;” took significant testimony on alleged procedural irregularities, including 

the sufficiency of notice; discussed whether the “reasonably foreseeable” requirement 

necessitated a rulemaking; and received testimony on the propriety of the BART 

Alternative). 

 Upon conclusion of the hearing, the Legislative Council, by unanimous bipartisan 

vote, determined the SIP changes were appropriate and “recommend[ed] a bill to ratify 

the changes and additions to the SIP and to postpone the automatic expiration of the rules 

contained in the plan.” Id.

 The resulting legislation was HB 11-1291. See Defendants’ Reply in Support of 

Motion to Dismiss, Exhibit C. The legislative declaration of HB 11-1291 states the 

General Assembly intended that legislation to serve two distinct purposes. First, to 

postpone the automatic expiration of the rules contained in the SIP under the Colorado 

Administrative Procedure Act. Id. Second, to “approve the additions and changes to the 

[SIP.]” Id. To accomplish these objectives, the legislation added language to C.R.S. § 

25-7-133.5(2), providing as follows: 

Approval or rescission of specific revisions to state 

implementation plan (SIP) after 1996. (2) Pursuant to 

section 25-7-133, 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: 

 (bb)(I) THE “COLORADO VISIBILITY AND REGIONAL 

HAZE STATE IMPLEMENTATION PLAN FOR THE TWELVE 

MANDATORY CLASS I FEDERAL AREAS IN COLORADO,”
6 

ADOPTED BY THE AIR QUALITY CONTROL COMMISSION ON 

JANUARY 7, 2011. 

 (II) THE AUTOMATIC EXPIRATION OF THE RULES 

CONTAINED IN THE PLAN SPECIFIED IN SUBPARAGRAPH (I) 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. 

(SMALL CAPS indicates language added to the statute.) 

HB 11-1291 was signed into law by Colorado Governor Hickenlooper on May 4, 2011. 

V. Mootness Doctrine 

 It is well-established Colorado law that “[c]ourts limit their inquiry to the 

resolution of actual controversies.” Bd. of Dirs. v. Nat’l Union Fire Ins. Co., 105 P.3d 

653, 656 (Colo. 2005). There is a preference to resolve disputes on their merits. Stell v. 

Boulder County Dep’t of Social Svcs., 92 P.3d 910, 914 (Colo. 2004). However, Courts 

may confine their exercise of jurisdiction to cases that present a live case or controversy. 

Davidson v. Comm. for Gail Schoettler, Inc., 24 P.3d 621, 623 (Colo. 2001). “Mootness 

instructs courts not to grant relief that would have no practical effect upon an actual and 

existing controversy.” Stell, 92 P.3d at 914. “A case is moot when the relief sought, if 

granted, would have no practical legal effect.” Archibold v. Pub. Utils. Comm’n, 58 P.3d 

1031, 1036 (Colo. 2002). See also Van Schaack Holdings, Ltd. v. Fulenwider, 798 P.2d 

424, 426 (Colo. 2004). 

 A controversy can be rendered moot by subsequent legislative action. Taxpayers 

for the Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist., 739 

F.2d 1472, 1478 (10th Cir. 1984). See also Jones v. Temmer, 57 F.3d 921 (10th Cir. 

1995). 

VI. Application 

 The legislature’s passage of HB 11-1291 has rendered CMA’s case moot. CMA’s 

prayer for relief seeks two broad categories of relief. First, CMA seeks invalidation of 

the Commission’s adoption of the Regional Haze SIP. Second, CMA seeks a declaration 

that the Commission’s process for adopting the Regional Haze SIP was flawed or 

otherwise arbitrary and capricious. Due to the passage of HB 11-1291, neither of the 

rulings requested of this Court would have any practical effect. 

 Legislative review of SIPs is controlled by C.R.S. § 25-7-133. Under that 

statutory procedure, the Commission is required to submit a report to the Legislative 

Council summarizing any additions or changes to elements of Colorado’s SIP. C.R.S. 

§ 25-7-133(1). After the report is submitted, any member of the General Assembly may 

request a publicly noticed hearing to “determine whether the addition or change to the 

SIP element accomplishes the results intended by enactment of the statutory provisions 

under when this SIP element was adopted.” C.R.S. § 25-7-133(2)(a). If a hearing is 

requested, the SIP revision may not take effect for the purpose of any enforcement unless 
7 

expiration of the rules that constitute the SIP is postponed by the General Assembly 

acting in the same manner as prescribed by the Colorado Administrative Procedure Act.2

 

After the hearing, the Legislative Council can recommend introduction of a bill, either 

approving the SIP changes or altering the SIP to meet legislative intent.3

 C.R.S. § 25-7-

133(2)(a). If no such review is requested, the Commission’s approved changes are 

incorporated into Colorado’s SIP. C.R.S. § 25-7-133(b). 

 As discussed supra, consistent with C.R.S. § 25-7-133(2)(a), the General 

Assembly’s Legislative Council held its hearing on March 25, 2011. After the hearing, 

Legislative Council specifically addressed the SIP changes and recommended 

introduction of a bill, HB 11-1291, approving the SIP changes. Thereafter, in passing HB 

11-1291, the General Assembly did two things. 

 First, it postponed the automatic expiration of the rules contained in the SIP under 

the Colorado Administrative Procedure Act in C.R.S. § 25-7-133.5(2)(bb)(II). This 

action does not constitute legislative approval of the rule pursuant to C.R.S. 

§ 24-4-103(c). 

 However, in its second action, the General Assembly went on to specifically 

approve the proposed changes to the Regional Haze SIP under the C.R.S. § 25-7-

133(2)(a) process. In accordance with that process, review is conducted to “determine 

whether the addition or change to the SIP element accomplishes the results intended by 

enactment of the statutory provisions under which this SIP element was adopted.” Id. 

Moreover, after undertaking this process, the General Assembly specifically and 

affirmatively approved the changes proposed by the Commission. C.R.S. § 25-7-

133.5(2) (identifying revisions to the SIP that have been “approved” by the General 

Assembly). See also Defendants’ Reply in Support of Motion to Dismiss, Exhibit C 

(identifying the objective of “approv[ing] the additions and changes to the [SIP]” as 

among the intent of the General Assembly in passing HB 11-1291). This action goes 

beyond the mere postponement of automatic expiration of a rule, and reflects the General 

Assembly’s unique attention to the Clean Air – Clean Jobs Act.4

 

2

 The APA, in turn, states that “the postponement of the expiration of a rule shall not 

constitute legislative approval of the rule nor be admissible in any court as evidence of 

legislative intent.” C.R.S. § 24-4-103(c). No similar language is found in C.R.S. § 25-7-

133. 

3

 The Legislative Council may also decline to recommend introduction of a bill, thereby 

prohibiting submission of the SIP to EPA. C.R.S. § 25-7-133(2)(a). 

4

 At oral argument, CMA characterized the legislative action in HB-1291 as a mere 

procedural step by the General Assembly and the Governor to pass the SIP on to EPA. 

CMA takes the position that the statute, HB 11-1291, does not represent affirmative 

approval of the SIP. However, the actions of the legislature and the plain language of HB 

11-1291 demonstrate the General Assembly’s intent to “approve the additions and 

changes to the [SIP]....” CMA’s argument is therefore without merit. 
8 

 At the hearing on this matter, CMA was unable to articulate what practical effect 

a ruling by this Court would have on the present controversy.5

 Rather, CMA argued that 

the rules themselves remained in effect, presenting a continuing controversy capable of 

resolution. However, the relevant inquiry is not whether the challenged rules remain in 

force, but rather what practical effect a ruling of this Court would have under the present 

circumstances. 

 The relief sought by CMA in its Complaint is incapable of being practically 

effectuated by a ruling of this Court because HB 11-1291, as a matter of law, has 

superseded CMA’s requested relief by approving the Commission’s actions. Notably, 

CMA did not challenge the General Assembly’s adoption of HB 11-1291. See CMA 

Complaint for Judicial Review. 

 Even if this Court were to enter an order invalidating the Commission’s approval 

of the SIP as requested by CMA, the actual changes to the SIP would remain in force and 

effect due to the subsequent approval of the SIP by the General Assembly embodied in 

HB 11-1291, codified at C.R.S. § 25-7-133.5(2)(bb). See also Taxpayers, 739 F.2d at 

1478. As a result, a ruling by this Court would “have no practical legal effect.” 

Archibold, 58 P.3d at 1036. This is the black letter definition of mootness. See Van 

Schaack Holdings, Ltd., 798 P.2d at 426. 

 This case is therefore DISMISSED WITH PREJUDICE as MOOT. 

 DATED: Wednesday, June 06, 2012. 

 BY THE COURT: 

Christina M. Habas 

District Court Judge 

 

5

 CMA further declined to identify any portions of its action capable of surviving a 

finding of mootness through subsequent legislative validation.