SUMMARY

January 28, 2021

2021COA8

No. 19CA1636 Defend Colorado v. Governor Jared Polis —

Public Health and Environment — Air Quality Control 

Commission — Clean Air Act — National Ambient Air Quality 

Standards

This appeal concerns a certification of the completeness and 

accuracy of air quality data — specifically, ozone levels recorded in 

the Denver Metropolitan/North Front Range area — that Colorado 

must annually submit to the United States Environmental 

Protection Agency (EPA). A division of the court of appeals 

concludes that 

 the Colorado Air Quality Control Commission (Commission) 

does not have the authority to require that the certification 

include supplemental information intended to show the 

influence of emissions from foreign countries and 

“exceptional” events such as forest fires on recorded ozone 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
levels;

 the Commission is not required to hold a public hearing 

before either (1) the submission of the certification to the 

EPA or (2) the withdrawal of a request to the EPA for an 

extension of a deadline to attain the national ambient air 

quality standards; and

 the district court did not err in dismissing certain claims by 

Defend Colorado without first receiving and considering the 

entire certified administrative record. 

The division therefore affirms the district court’s judgment 

dismissing Defend Colorado’s claims against the Commission and 

Governor Jared Polis for lack of standing and failure to state a claim 

on which relief can be granted. 
COLORADO COURT OF APPEALS 2021COA8

Court of Appeals No. 19CA1636

City and County of Denver District Court No. 19CV31577

Honorable Brian R. Whitney, Judge

Defend Colorado, a Colorado nonprofit association,

Plaintiff-Appellant,

v.

Governor Jared Polis and The Colorado Air Quality Control Commission,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE YUN

Furman and Harris, JJ., concur

Announced January 28, 2021

Greenberg Traurig, LLP, Paul M. Seby, Matt Tieslau, Denver, Colorado, for 

Plaintiff-Appellant

Philip J. Weiser, Attorney General, Leeann Morrill, First Assistant Attorney 

General, Denver, Colorado, for Defendant-Appellee Governor Jared Polis

Philip J. Weiser, Attorney General, Thomas A. Roan, First Assistant Attorney 

General, Robyn L. Wille, Senior Assistant Attorney General, Denver, Colorado, 

for Defendant-Appellee The Colorado Air Quality Control Commission
1

¶ 1 This case concerns a certification of air quality data —

specifically, ozone levels recorded in the Denver Metropolitan/North 

Front Range area — that Colorado must annually submit to the 

United States Environmental Protection Agency (EPA). The central 

question is whether the Colorado Air Quality Control Commission 

(Commission) has the authority to require that the certification

include supplemental information intended to show the EPA that 

the recorded ozone levels would have been lower if not for emissions 

from foreign countries and “exceptional” events such as forest fires. 

¶ 2 Based on our review of the statutory and regulatory scheme

governing the certification, we conclude, as a matter of first 

impression, that the Commission does not have such authority. We

therefore affirm the district court’s judgment dismissing Defend 

Colorado’s claims against the Commission and Governor Jared Polis 

for lack of standing and failure to state a claim on which relief can 

be granted. 

I. Background

¶ 3 We first briefly describe the parties and the statutory and 

regulatory background, then describe the procedural history of this 

case.
2

A. Parties

¶ 4 Defend Colorado is a nonprofit organization whose members 

include Colorado businesses and industry groups subject to 

regulation under the Clean Air Act, 42 U.S.C. §§ 7401-7671, and 

the Colorado Air Pollution Prevention and Control Act, §§ 25-7-101 

to -1309, C.R.S. 2020 (Colorado Air Act). Defend Colorado states 

that one of its primary purposes is “to advocate for policies and 

regulations that align with the statutory mandates of the Colorado 

Air Act and the Clean Air Act.” 

¶ 5 The Governor is the head of the executive branch. Colo. 

Const. art. IV, § 2. As such, the Governor is vested with authority

and control over the Colorado Department of Public Health and 

Environment (CDPHE) and its subdivision, the Air Pollution Control 

Division (Division). See §§ 24-1-119, 24-1-105(4), 25-1-102(1), 

25-1-106, C.R.S. 2020. The Division’s responsibilities include

collecting data to determine the nature and quality of existing 

ambient air throughout the state, § 25-7-111(2)(b), C.R.S. 2020, 

and administering and enforcing the air quality control programs 

adopted by the Commission, § 25-7-111(1).
3

¶ 6 The Commission is a governmental agency within the CDPHE. 

§ 25-7-104, C.R.S. 2020. It consists of nine Colorado citizens, id.,

and is tasked with promulgating rules and regulations under the 

Colorado Air Act, including, but not limited to, a comprehensive 

state implementation plan to ensure attainment and maintenance 

of the national ambient air quality standards and to prevent 

significant deterioration of air quality, § 25-7-105(1)(a)(I), C.R.S. 

2020. The Commission “exercise[s] its prescribed statutory powers, 

duties, and functions . . . independently of the head of the 

[CDPHE]” and, therefore, of the Governor. § 24-1-105(1); see also

§ 25-7-125, C.R.S. 2020.

B. The National Ambient Air Quality Standards

¶ 7 Under section 108 of the Clean Air Act, 42 U.S.C. 

§ 7408(a)(1)(A), the EPA must identify and list air pollutants 

“emissions of which . . . cause or contribute to air pollution which 

may reasonably be anticipated to endanger public health or 

welfare.” Section 109, 42 U.S.C. § 7409, directs the EPA to propose 

and promulgate national ambient air quality standards (NAAQS) for 

pollutants, including ozone, listed under section 108. The air 
4

quality standard relevant to this case is the 2008 ozone NAAQS. 

73 Fed. Reg. 16,436 (Mar. 27, 2008).

¶ 8 The EPA determines whether an area attains the ozone NAAQS 

based on the area’s “design value” — that is, the three-year average 

of the annual fourth-highest daily maximum eight-hour average 

ozone concentrations. 40 C.F.R. § 50.15(b) (2021). An area with a 

design value above the NAAQS is designated as being in 

“nonattainment” and given an “attainment date” by which it must 

attain the NAAQS. 42 U.S.C. §§ 7407(d), 7511(a)(1). Depending on 

how much the ozone levels in a nonattainment area exceed the 

NAAQS, the EPA classifies the area as being in marginal, moderate, 

serious, severe, or extreme nonattainment. 42 U.S.C. § 7511(a)(1). 

When an area fails to attain the NAAQS by its attainment date, the 

EPA may reclassify the area to the next higher classification of 

nonattainment. 42 U.S.C. § 7511(b)(2).

¶ 9 A state may avoid reclassification of a nonattainment area to a 

higher classification of nonattainment if it can demonstrate to the 

EPA that the area would have met the NAAQS “but for” the effect of 

emissions emanating from outside the United States. 42 U.S.C. 

§ 7509a(b). Similarly, if the ozone levels in an area exceed the 
5

NAAQS due to “exceptional” events such as forest fires, then the 

state may request mitigation for the exceedance in future 

determinations or designations. 40 C.F.R. § 50.14(c) (2021).

C. The May Data Certification

¶ 10 Each year, a state must submit quarterly data of recorded 

levels of ozone at all monitoring stations to the EPA’s computerized 

system for the storing and reporting of information relating to 

ambient air quality data. 40 C.F.R. § 58.16 (2021).

¶ 11 Further, by May 1 of each year, a state monitoring agency, 

through its head official or his or her designee, must submit to the 

EPA an “annual air monitoring data certification letter” certifying 

“that the previous year of ambient concentration and quality 

assurance data are completely submitted to [the EPA’s 

computerized system] and that the ambient concentration data are 

accurate to the best of her or his knowledge, taking into 

consideration the quality assurance findings.” 40 C.F.R. § 58.15(a)

(2021). We refer to this annual letter as the “May Data 

Certification.”
6

D. The Nonattainment Area

¶ 12 In 2016, the EPA classified the Denver Metropolitan/North 

Front Range area (Nonattainment Area) as being in moderate 

nonattainment for the 2008 ozone NAAQS and imposed an 

attainment date of July 20, 2018. 81 Fed. Reg. 26,697 (May 4, 

2016).

¶ 13 In June 2018, the CDPHE requested a one-year extension of 

the attainment date. In a proposed rule, the EPA proposed to 

approve the request. 83 Fed. Reg. 56,781 (Nov. 14, 2018). 

However, in March 2019, the Governor issued a letter to the EPA 

withdrawing the extension request. Thus, the Nonattainment 

Area’s attainment date remained July 20, 2018. 84 Fed. Reg. 

70,897 (Dec. 26, 2019).

¶ 14 In December 2019, based on ozone monitoring data showing 

that the design value for the Nonattainment Area exceeded the 2008 

ozone NAAQS for the period 2015 to 2017, the EPA published a 

final rule reclassifying the Nonattainment Area from moderate to 

serious nonattainment, effective January 27, 2020. 84 Fed. Reg. 

70,897 (Dec. 26, 2019).
7

E. Procedural History

¶ 15 In February 2019, Defend Colorado petitioned the Commission 

to hold one or more public hearings to “investigate and quantify 

the . . . effects of international emissions and exceptional events on 

ozone concentrations” in the Nonattainment Area in 2018 and 

“[i]ssue a Declaratory Order at the conclusion of such 

investigations . . . directing” the CDPHE to demonstrate to the EPA 

in the 2019 May Data Certification that, but for the effect of 

international emissions and exceptional events, the Nonattainment 

Area attained the 2008 ozone NAAQS in 2018. Because, at the time 

Defend Colorado filed its petition, the Governor had not yet 

withdrawn Colorado’s request that the EPA extend the attainment 

date to July 2019, Defend Colorado believed that the EPA would 

consider 2018 data in determining whether to reclassify the 

Nonattainment Area from moderate to serious nonattainment. 

Thus, Defend Colorado asserted that the failure to present the EPA 

with information regarding international emissions and emissions 

from exceptional events in 2018 would “result in EPA [reclassifying]

the [Nonattainment] Area to ‘serious’ nonattainment, and the 
8

imposition of extremely burdensome and costly requirements on 

Coloradans.” 

¶ 16 The Commission declined to decide the petition. Citing section 

24-4-105(11), C.R.S. 2020, the Commission concluded that it had 

discretion to issue declaratory orders terminating controversies or 

removing uncertainties “as to the applicability to the petitioners of 

any statutory provision or of any rule or order of the agency.”

Because Defend Colorado’s petition did not identify any controversy 

or uncertainty as to the applicability to Defend Colorado of any 

statute, rule, or order, the Commission held that Defend Colorado 

lacked standing to petition for a declaratory order. Defend Colorado 

submitted an emergency motion for reconsideration or clarification 

of the Commission’s order. In its order denying Defend Colorado’s 

motion to reconsider, the Commission clarified that, “[b]ecause 

Defend Colorado does not have standing to request a declaratory 

order, holding a hearing to determine whether to issue such an 

order is illogical.” 

¶ 17 Defend Colorado brought a complaint in the district court for 

declaratory and injunctive relief and judicial review under the 

Colorado Administrative Procedure Act, §§ 24-4-101 to -204, C.R.S. 
9

2020 (Colorado APA), against the Commission and the Governor. In 

its complaint, Defend Colorado asserted four claims for relief:

 In its first claim for relief against the Commission, 

Defend Colorado asserted that the Commission was 

required to hold a hearing “on the contents and basis” of 

the 2019 May Data Certification and that, if the 2019 

May Data Certification was submitted to the EPA without 

the Commission first holding a hearing, then it was 

invalid and must be set aside. 

 In its second claim for relief against the Commission, 

Defend Colorado asserted that any May Data 

Certification that did not include a demonstration of the 

effects of international emissions and exceptional events 

could not be characterized as accurate and must be 

deemed invalid and set aside. 

 In its third claim for relief, against both the Commission 

and the Governor, Defend Colorado asserted that, while 

the Commission was considering Defend Colorado’s 

petition, the Governor improperly attempted to influence 

the Commission; that the Commission “acquiesce[d]” to 
10

the Governor’s influence; and that, therefore, both the 

Governor and the Commission violated the separation of 

powers required by Article III of the Colorado 

Constitution. 

 In its fourth claim for relief, against the Governor alone, 

Defend Colorado asserted that the Governor’s letter to 

the EPA withdrawing Colorado’s request for an extension 

of the Nonattainment Area’s attainment date “was a 

usurpation of the Commission’s statutory duty and 

authority” and therefore invalid. 

¶ 18 The Commission moved to dismiss the first, second, and third

claims, and the Governor moved to dismiss the third and fourth 

claims. After reviewing the pleadings, the district court concluded 

the following:

 Under 40 C.F.R. § 58.15, the May Data Certification is 

only a statement from the state monitoring agency that 

the previous year’s data is accurate and precise and a 

summary report of the data. The May Data Certification 

is not the vehicle for submitting a demonstration 

regarding international emissions or exceptional events. 
11

 The Commission does not “have any statutory or 

regulatory involvement in the creation, transmission, 

ratification, or manipulation of the [May Data 

Certification] at all.” Rather, the May Data Certification 

is “a ministerial function of [the] CDPHE.” 

 Because the petition asked the Commission to do 

something it could not do — that is, to exercise “oversight 

authority concerning” the May Data Certification —

Defend Colorado suffered no injury to a legally protected 

right. 

 It was legally impossible for the Governor to improperly 

influence the Commission in its decision to deny Defend 

Colorado’s petition. Further, the complaint contained no 

factual allegations suggesting that the Governor 

influenced the Commission in its decision.

 As a ministerial duty of the CDPHE, the May Data 

Certification “is in the province of the Governor’s 

executive function.” Thus, the Governor’s actions did not 

violate the separation of powers because “the actions 

were direct powers granted to the Governor.” 
12

 Accordingly, Defend Colorado did not have standing to 

assert its first and second claims, and its third and 

fourth claims failed to state a claim on which relief could 

be granted. 

¶ 19 Defend Colorado now appeals.

II. Analysis

¶ 20 Defend Colorado contends that the district court erred by

(1) dismissing its first and second claims under C.R.C.P. 12(b)(1) for 

lack of standing; (2) dismissing its third and fourth claims under 

C.R.C.P. 12(b)(5) for failure to state a claim on which relief can be 

granted; and (3) dismissing its claims without first having received 

and considered the entire certified administrative record. We 

disagree with each of these contentions. 

A. First and Second Claims

¶ 21 We begin with our analysis of whether the district court erred 

by dismissing Defend Colorado’s first and second claims against the 

Commission for lack of standing.

1. Standard of Review

¶ 22 We review the issue of standing de novo. Ainscough v. Owens, 

90 P.3d 851, 855 (Colo. 2004).
13

2. Standing

¶ 23 To establish standing, a plaintiff must satisfy two criteria: 

first, the plaintiff must have suffered an injury-in-fact, and second, 

the injury must have been to a legally protected interest. Id. Under 

the first prong, the injury may be tangible, such as physical damage 

or economic harm, or it may be intangible, such as the deprivation 

of a legally created right. Id. at 856. The second prong of the 

standing test “requires that the plaintiff have a legal interest 

protecting against the alleged injury. This is a question of whether 

the plaintiff has a claim for relief under the constitution, the 

common law, a statute, or a rule or regulation.” Id. (citation 

omitted). 

¶ 24 The district court concluded that Defend Colorado has no 

legally protected interest in the Commission’s holding a public 

hearing on the 2019 May Data Certification because the 

Commission has no “statutory or regulatory involvement in the 

creation, transmission, ratification, or manipulation of the [May 

Data Certification] at all.” Rather, the court found, the May Data 

Certification is a ministerial function of the CDPHE, regarding 

which the Commission has no oversight authority. Even if the 
14

Commission held a hearing, the court reasoned, it could not grant 

the relief Defend Colorado sought — issuing a declaratory order to 

the CDPHE dictating the contents of the May Data Certification —

and thus Defend Colorado had no legally protected interest in the 

hearing. “Because the petition was requesting the Commission to 

do something it could not even if granted,” the court concluded,

“Defend Colorado cannot now claim it has lost a right by having the 

Commission deny that same petition without [a] hearing.” 

3. Discussion

¶ 25 Defend Colorado asserts that it has standing because (1) the 

2019 May Data Certification was “incomplete and inaccurate” 

without information regarding emissions from international sources 

and exceptional events; (2) the Commission has oversight authority 

over all of Colorado’s obligations under the Colorado Air Act; and 

(3) the Commission was required to hold a public hearing before the 

May Data Certification was submitted to the EPA. We address each 

of these contentions in turn. 

i. The 2019 May Data Certification

¶ 26 Defend Colorado argues that, without a demonstration of the 

effect of emissions from international sources and exceptional 
15

events, the 2018 data certified by the 2019 May Data Certification 

was “incomplete and inaccurate.” However, the May Data 

Certification is simply a certification that Colorado is accurately 

reporting the ozone values recorded at the monitors, after the 

monitored data undergoes quality assurance. 40 C.F.R. § 58.15 

states as follows: 

(a) The state, or where appropriate local, 

agency shall submit to the EPA Regional 

Administrator an annual air monitoring data 

certification letter to certify data collected . . . 

from January 1 to December 31 of the 

previous year. The head official in each 

monitoring agency, or his or her designee, 

shall certify that the previous year of ambient 

concentration and quality assurance data are 

completely submitted to [the EPA’s 

computerized system] and that the ambient 

concentration data are accurate to the best of 

her or his knowledge, taking into consideration 

the quality assurance findings. The annual 

data certification letter is due by May 1 of each 

year. 

(b) Along with each certification letter, the 

state shall submit to the Regional 

Administrator an annual summary report of all 

the ambient air quality data collected . . . .

The annual report(s) shall be submitted for 

data collected from January 1 to December 31 

of the previous year. The annual summary 

serves as the record of the specific data that is 

the object of the certification letter. 
16

(c) Along with each certification letter, the state 

shall submit to the Regional Administrator a 

summary of the precision and accuracy data 

for all ambient air quality data collected . . . . 

The summary of precision and accuracy shall 

be submitted for data collected from January 1 

to December 31 of the previous year.

The regulation does not, by its plain language, require the May Data 

Certification to address or consider the originating sources of the 

ozone measured at the monitors. 

¶ 27 Moreover, the May Data Certification is not the proper 

mechanism for requesting exclusion of ozone monitoring data 

influenced by exceptional events or submitting a demonstration 

that a nonattainment area would have attained the NAAQS but for 

emissions from international sources. A state requesting that the 

EPA exclude air quality monitoring data influenced by exceptional 

events from use in determinations of exceedances or violations of 

the NAAQS must notify the EPA of its intent to request data 

exclusion by creating an initial event description, flagging the 

associated data in the EPA’s computerized database, and engaging 

in the “Initial Notification of Potential Exceptional Event” process as 

outlined in 40 C.F.R. § 50.14(c)(2). See 42 U.S.C. § 7619(b); 

40 C.F.R. § 50.14(c). For data that may affect an anticipated 
17

regulatory determination, the EPA must respond to a state’s Initial 

Notification of Potential Exceptional Event with a due date for 

submitting a demonstration to justify the exclusion of data. 

40 C.F.R. § 50.14(c)(2)(i)(B), (c)(3)(i). Thus, the process for 

requesting the exclusion of data influenced by exceptional events is 

governed by a separate federal regulation and proceeds separately 

from the May Data Certification.

¶ 28 Similarly, under section 179B of the Clean Air Act, 42 U.S.C.

§ 7509a, titled “International border areas,” a state can avoid 

reclassification of a nonattainment area to the next higher 

classification of nonattainment if it can demonstrate to the EPA that 

the area would have attained the ozone NAAQS by the applicable 

attainment date “but for” the effect of emissions emanating from 

outside the United States. 42 U.S.C. § 7509a(b).1 In December 

2020, in order to “help air agencies better understand how to satisfy 

 1 The EPA’s longstanding view is that 42 U.S.C. § 7509a(b) contains 

an erroneous reference to 42 U.S.C. § 7511(a)(2) and that Congress 

actually intended to refer to section 42 U.S.C. § 7511(b)(2). See

State Implementation Plans; General Preamble for the 

Implementation of Title I of the Clean Air Act Amendments of 1990, 

57 Fed. Reg. 13,498, 13,569 n.41 (Apr. 16, 1992).
18

the requirements of [Clean Air Act] section 179B,” the EPA finalized 

a guidance document on the preparation of demonstrations for 

nonattainment areas affected by international emissions. See Air 

Quality Pol’y Div., U.S. Env’t Prot. Agency, Guidance on the 

Preparation of Clean Air Act Section 179B Demonstrations for 

Nonattainment Areas Affected by International Transport of 

Emissions 1 (Dec. 2020), https//perma.cc/8FJY-Q776 (179B 

Guidance). The 179B Guidance states that, notwithstanding the 

title “International border areas,” the EPA will accept 

demonstrations of the effects of international emissions on 

nonattainment areas that are not adjacent to an international 

border. 179B Guidance at 5.2 The 179B Guidance details the 

process for preparing and submitting such demonstrations and

states that, “to ensure the integrity of air quality data used in 

demonstrations, EPA recommends that [an] air agency submit a 

final retrospective demonstration [of the effects of international 

emissions] only after all air quality data used to calculate the 

 2 At the time the 179B Guidance was finalized, the EPA had never 

acted on such a demonstration for any nonattainment area not 

located on the border between the United States and Mexico. 179B 

Guidance at 5 n.12. 
19

attainment year design value are certified.” 179B Guidance at 16

(emphasis added). Thus, the process for submitting a 

demonstration of the effects of international emissions also 

proceeds separately from the May Data Certification. 

ii. Statutory Authority

¶ 29 Defend Colorado argues that the Colorado Air Act designates 

the Commission as the sole state agency responsible for all of 

Colorado’s obligations under the Clean Air Act, including the May 

Data Certification. Defend Colorado bases its argument on section 

25-7-124(1), C.R.S. 2020, of the Colorado Air Act, which provides 

that “[t]he [C]ommission shall serve as the state agency for all 

purposes of the federal [Clean Air Act].” Defend Colorado argues 

that “[t]he term all purposes is clear, and does not provide room for 

interpretation.” Thus, in Defend Colorado’s view, “the Commission, 

not CDPHE . . . is the sole state actor that must be submitting 

Colorado’s annual [May Data Certifications] to EPA.” 

¶ 30 However, Defend Colorado’s reliance on the phrase “for all 

purposes” in section 25-7-124(1) overlooks more specific grants of 

authority in other parts of the Colorado Air Act and federal 

regulations.
20

¶ 31 First, 40 C.F.R. § 58.15, which sets out the requirements for 

the May Data Certification, provides that “[t]he head official in each 

monitoring agency, or his or her designee,” shall submit the May 

Data Certification. 40 C.F.R. § 58.1 (2021) defines “[m]onitoring 

agency” as “a state, local or tribal agency responsible for meeting 

the requirements of this part,” where “this part” refers to 40 C.F.R., 

Part 58, entitled Ambient Air Quality Surveillance. Under section 

25-7-111(2) of the Colorado Air Act, the Division is the state agency 

responsible for collecting and evaluating air quality monitoring 

data. See § 25-7-111(2)(b) (giving the Division the power to “[c]ollect 

data, by means of field studies and air monitoring conducted by the 

[D]ivision or by individual stationary sources or individual indirect 

air pollution sources, and determine the nature and quality of 

existing ambient air throughout the state”). Thus, the Colorado Air 

Act allocates responsibility to the Division to handle air quality 

monitoring and to submit the May Data Certification.

¶ 32 Second, though Defend Colorado asserts that the term “all 

purposes” does not leave room for interpretation, it does not explain 

how section 25-7-124(1) should be read together with other specific 

statutory delegations of authority to the Division. For example, the 
21

Colorado Air Act provides that the Division shall administer and 

enforce the air quality control programs adopted by the 

Commission, § 25-7-111(1); administer permit programs under the 

Clean Air Act, § 25-7-114.5, C.R.S. 2020; and enforce compliance 

with the requirements of the state implementation plan, 

§ 25-7-115(1)(a), C.R.S. 2020. In construing a statute, we endeavor 

to effectuate the purpose of the legislative scheme and to read that 

scheme as a whole, giving “consistent, harmonious, and sensible 

effect to all of its parts.” Thompson v. People, 2020 CO 72, ¶ 22. In 

doing so, we interpret a specific provision as an exception to a 

general provision, “carving out a special niche from the general 

rules to accommodate a specific circumstance.” Martin v. People, 

27 P.3d 846, 852 (Colo. 2001). Thus, we conclude that the specific 

provision making the Division responsible for handling air quality 

monitoring — and, by extension, for submitting the May Data 

Certification — is an exception to the general provision stating that 

the Commission serves as the state agency “for all purposes” of the 

Clean Air Act. See § 25-7-111(2)(b); 40 C.F.R. §§ 58.1, 58.15.

¶ 33 Accordingly, we, like the district court, reject Defend 

Colorado’s contention that the Commission has a statutory duty to 
22

oversee Colorado’s May Data Certifications to the EPA. Therefore, 

because the Commission could not grant the relief sought in Defend 

Colorado’s petition, we conclude that Defend Colorado suffered no 

injury to a legally protected interest and thus does not have 

standing to assert its first two claims. 

iii. Hearing

¶ 34 Defend Colorado further argues that the Commission was

required to hold a public hearing before the May Data Certification

was submitted to the EPA. Defend Colorado bases this argument 

on two provisions of the Colorado Air Act. 

¶ 35 First, Defend Colorado argues that the Commission was 

required to hold a public hearing because section 25-7-110(1), 

C.R.S. 2020, provides that the Commission shall conduct a public 

hearing as provided in section 24-4-103, C.R.S. 2020, “[p]rior to 

adopting, promulgating, amending, or modifying any ambient air 

quality standard . . . or any emission control regulation . . . or any 

other regulatory plans or programs.” But the May Data 

Certification is not (1) an ambient air quality standard; (2) an 

emission control regulation; or (3) a regulatory plan or program. 

Rather, it is a certification that the previous year’s ambient 
23

concentration and quality assurance data were completely and 

accurately submitted to the EPA. 40 C.F.R. § 58.15. Further, the 

hearing provided for in section 24-4-103 is a rulemaking hearing, 

and the May Data Certification does not involve rulemaking.

¶ 36 Second, Defend Colorado argues that the Commission was 

required to hold a public hearing because section 25-7-124(3) 

provides that no agreement between the CDPHE and the EPA 

“involving, authorizing, or requiring compliance in this state with 

any ambient air quality standard or emission control regulation” 

will be effective “unless or until the [C]ommission has held a 

hearing with respect to such standard or regulation and has 

adopted the same in compliance with section 25-7-110,” C.R.S. 

2020. The district court concluded, and we agree, that attempting 

to characterize the May Data Certification as an agreement with the 

EPA is incorrect because an agreement requires input from both 

parties. See Black’s Law Dictionary (11th ed. 2019) (defining 

“agreement” as “[a] mutual understanding between two or more 

persons about their relative rights and duties regarding past or 

future performances; a manifestation of mutual assent by two or 

more persons”). In contrast, the May Data Certification is, in the 
24

district court’s words, “a one-directional assertion by Colorado 

verifying [its] data.” Further, section 25-7-124(3) does not require 

that the Commission approve the “agreement” itself but rather 

requires a rulemaking hearing at which the Commission would 

adopt the standard or regulation with which the agreement requires 

compliance. Thus, it is inapplicable here. 

¶ 37 For the foregoing reasons, we conclude that, with respect to its 

first two claims, Defend Colorado suffered no injury to a legally 

protected interest and the district court did not err by dismissing 

these claims under C.R.C.P. 12(b)(1).

B. Third and Fourth Claims

¶ 38 We next turn to Defend Colorado’s contention that the district 

court erred by dismissing its third claim against the Governor and 

the Commission and its fourth claim against the Governor for 

failure to state a claim on which relief can be granted. 

1. Standard of Review

¶ 39 We review a district court’s ruling on a motion to dismiss 

under C.R.C.P. 12(b)(5) de novo. Moss v. Bd. of Cnty. Comm’rs, 

2015 COA 35, ¶ 13. We must accept all allegations of material fact 

as true and view the allegations in the complaint in the light most 
25

favorable to the plaintiff. Id. However, we are not required to 

accept as true legal conclusions that are couched as factual 

allegations. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 

2011). A complaint may be dismissed if the substantive law does 

not support the claims asserted. W. Innovations, Inc. v. Sonitrol 

Corp., 187 P.3d 1155, 1158 (Colo. App. 2008).

2. Discussion

¶ 40 In its third claim for relief, Defend Colorado asserts that the 

Governor improperly influenced the Commission in its decision to 

deny Defend Colorado’s petition and that the Commission 

acquiesced to the Governor’s influence. We conclude that the 

district court properly dismissed Defend Colorado’s third claim 

against the Governor and the Commission for two reasons. 

¶ 41 First, because, as discussed above, we conclude that the 

Commission has no oversight role regarding the May Data 

Certification, we agree with the district court that no action taken 

by the Governor concerning the May Data Certification could 

influence “a body that has no participation in its origin, content, or 

issuance.” Thus, as a matter of law, no claim can lie against the 

Governor for interfering with the Commission or against the 
26

Commission for acquiescing to the Governor’s interference under 

these circumstances when the Commission has no role in the May 

Data Certification. 

¶ 42 Second, Defend Colorado’s complaint suffers from a dearth of 

factual allegations about how the Governor improperly influenced 

the Commission’s actions or decisions, and the conclusory 

allegations it does contain are insufficient to rise above a purely 

speculative level. See Warne v. Hall, 2016 CO 50, ¶ 24 (adopting 

the plausibility standard articulated by the United States Supreme 

Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and 

Ashcroft v. Iqbal, 556 U.S. 662 (2009), under which a complaint 

must contain factual allegations sufficient to raise a right to relief 

above the speculative level). Defend Colorado contends that the 

Governor “improperly and unilaterally attempted to influence the 

Commission’s statutory duties to administer the Colorado Air Act” 

and that the Commission “acquiesce[d]” to the Governor’s “improper 

influence over what should have been an impartial decision” on 

Defend Colorado’s petition, but none of its factual allegations 

explain how the Governor improperly influenced the Commission. 

Rather, Defend Colorado points to media reports of the Governor’s 
27

public statements. The district court concluded, and we agree, that 

“[n]othing in the complaint suggests that the Governor influenced or 

didn’t influence” the Commission in its decision not to hold the 

hearing and issue the declaratory order requested by Defend 

Colorado, “just that the Governor’s actions happened 

contemporaneously. This is not enough to state a claim for either 

undue influence or a violation of the separation of powers.” 

¶ 43 In its fourth claim for relief, Defend Colorado asserts that the 

Governor usurped the Commission’s authority by withdrawing 

Colorado’s request for an extension of the Nonattainment Area’s 

attainment date without the Commission’s holding a hearing. In 

support of its argument, Defend Colorado again relies on section

25-7-124(3), which provides that no agreement between the CDPHE 

and the EPA “involving, authorizing, or requiring compliance in this 

state with any ambient air quality standard or emission control 

regulation” will be effective “unless or until the [C]ommission has 

held a hearing with respect to such standard or regulation and has 

adopted the same in compliance with section 25-7-110.” Defend 

Colorado argues that the withdrawal of the extension request was
28

an agreement with the EPA and that the Commission was therefore 

required to hold a hearing before the withdrawal was made. 

¶ 44 However, even assuming that the withdrawal of the extension 

request was an agreement with the EPA, it did not involve, 

authorize, or require compliance with any ambient air quality 

standard or emission control regulation. The Governor’s letter 

merely stated that its intention was to notify the EPA of Colorado’s 

request to withdraw its request to extend the Nonattainment Area’s 

attainment date. There is simply no “standard or regulation” in the 

letter for the Commission to “adopt[] . . . in compliance with section 

25-7-110.” Thus, we conclude that no hearing was required under 

section 25-7-124(3).

¶ 45 For the foregoing reasons, we conclude that 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. See W. Innovations, 187 P.3d at 1158.

C. Administrative Record

¶ 46 We next address Defend Colorado’s final contention that the 

district court erred by dismissing its first, second, and third claims 
29

without first receiving and considering the entire certified 

administrative record. 

1. Standard of Review

¶ 47 We review the interpretation of statutes and the construction 

of rules of procedure de novo. McIntire v. Trammell Crow, Inc., 

172 P.3d 977, 979 (Colo. App. 2007); People v. Davis, 2012 COA 14, 

¶ 6.

2. Law

¶ 48 The Colorado APA provides that, in reviewing agency action, a 

court “shall review the whole record or portions of the record cited 

by any party.” § 24-4-106(7)(c), C.R.S. 2020. It is the plaintiff’s 

responsibility to “designate the relevant parts of [the] record and 

advance the cost therefor.” § 24-4-106(6). 

¶ 49 C.R.C.P. 57, which governs declaratory judgments, provides 

that “[w]hen a proceeding under this Rule involves the 

determination of an issue of fact, such issues may be tried and 

determined in the same manner as issues of facts are tried and 

determined in other actions in the court in which the proceeding is 

pending.” C.R.C.P. 57(i). 
30

¶ 50 C.R.C.P. 106(a)(4)(I) provides that, in any civil matter, when 

any governmental body or officer or any lower judicial body 

exercising judicial or quasi-judicial functions has exceeded its 

jurisdiction or abused its discretion, “[r]eview shall be limited to a 

determination of whether the body or officer has exceeded its 

jurisdiction or abused its discretion, based on the evidence in the 

record before the defendant body or officer.” The date for filing the 

record “shall be after the date upon which an answer to the 

complaint must be filed.” C.R.C.P. 106(a)(4)(III). 

a. Standing

¶ 51 Defend Colorado argues that whether its claims were brought 

under section 24-4-106 or C.R.C.P. 57, the district court could not 

rule on the question of standing without the full administrative 

record. We disagree.

¶ 52 Standing is a threshold jurisdictional question that must be 

determined before a case may be decided on the merits. Ainscough, 

90 P.3d at 855. To establish standing, a plaintiff must demonstrate

(1) that it has suffered an injury-in-fact; and (2) that the injury was

to a legally protected interest. Id. Neither element, however,

requires a court to review the full administrative record. Instead, as 
31

discussed above, Defend Colorado’s standing turns on the 

interpretation of various statutes and regulations. Accordingly, the 

administrative record was unnecessary to resolve whether Defend 

Colorado has standing.

¶ 53 Furthermore, Defend Colorado’s reliance on Massachusetts 

Department of Public Welfare v. Secretary of Agriculture, 984 F.2d 

514 (1st Cir. 1993), and Colorado Ground Water Commission v. 

Eagle Peak Farms, Ltd., 919 P.2d 212 (Colo. 1996), is misplaced. 

First, Massachusetts Department of Public Welfare was an appeal 

from an order granting summary judgment, and in that case, the 

court held that “the real question is . . . whether the administrative 

record . . . reflects a sufficient dispute concerning the factual 

predicate on which [the agency] relied . . . to support a finding that 

the agency acted arbitrarily or capriciously.” 984 F.2d at 525. In 

contrast, the district court’s ruling on standing in this case did not 

turn on a matter of disputed fact, but a question of law. Second, 

Colorado Ground Water Commission held that agency rulemaking is 

reviewed for reasonableness in light of the administrative record. 

919 P.2d at 217. Again, in contrast, this case does not concern 

agency rulemaking. Thus, Defend Colorado provided no authority 
32

requiring a court to review the entire administrative record before 

deciding a threshold standing issue.

¶ 54 We therefore conclude that the district court did not err by

dismissing Defend Colorado’s first and second claims without 

considering the entire certified administrative record.

b. Failure to State a Claim

¶ 55 Defend Colorado concedes that the district court did not need 

the administrative record to resolve its fourth claim — challenging 

the withdrawal of the request for the attainment date extension. 

¶ 56 As to its third claim — the Governor’s alleged interference in 

the Commission’s consideration of its petition — Defend Colorado 

asks us to follow Atieh v. Riordan, 727 F.3d 73 (1st Cir. 2013), 

which held that “[t]he relevant inquiry [in judicial review of final 

agency decisions under the Federal Administrative Procedure Act] 

is . . . not whether the facts set forth in a complaint state a 

plausible claim but, rather, whether the administrative record 

sufficiently supports the agency’s decision.” Id. at 76. However, the 

Atieh court expressly limited its own holding and acknowledged that 

a motion to dismiss for failure to state a claim can be appropriate 

“where the agency claims that the underlying premise of the 
33

complaint is legally flawed (rather than factually unsupported).” Id.

at 76 n.4. Further, in this case, the district court dismissed Defend 

Colorado’s third claim under C.R.C.P. 12(b)(5) after noting that the 

claim was brought under C.R.C.P. 57 or C.R.C.P. 106, not the 

Colorado APA. Thus, Atieh has no persuasive value when reviewing

the district court’s dismissal of the third claim because it did not 

involve the Colorado APA. 

¶ 57 Defend Colorado also argues that the district court was 

required to consider the full administrative record under 

C.R.C.P. 57 because its third claim depended on facts “inextricabl[y] 

intertwined into the administrative record for the Commission’s 

consideration” of its petition. However, as discussed above, Defend 

Colorado’s third claim contained no more than speculative and 

conclusory allegations, and the question of the sufficiency of the 

claim was one of law, not one of fact. See Warne, ¶ 19 

(acknowledging that the plausibility standard may result in 

“weeding out groundless complaints at the pleading stage”). 

¶ 58 Finally, the plain language of C.R.C.P. 106(a)(4)(III) requires 

certification of the record only “after the date upon which an answer 

to the complaint must be filed.” Here, no answer date was 
34

established below because the Commission and the Governor filed 

C.R.C.P. 12(b) motions to dismiss. See C.R.C.P. 106(a)(4)(II) (“An 

answer or other responsive pleading shall then be filed in 

accordance with the Colorado Rules of Civil Procedure.”). 

¶ 59 Accordingly, we conclude that the district court did not err by

dismissing Defend Colorado’s third claim without the entire certified 

administrative record.

III. Conclusion

¶ 60 The judgment is affirmed. 

JUDGE FURMAN and JUDGE HARRIS concur.