May 26, 2020

May 26, 2020

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Clean Power Plan – Can Colorado Proceed Anyway?

We recently asked the question, should a State proceed with development of an implementation plan under the Clean Power Plan given the inherently shifting timeline attendant the Supreme Court’s stay of the CPP Today, we expand on that question and ask whether a State, should it desire to voluntarily implement the plan, proceed anyway? A good example of this conundrum is posed in Colorado, where the Colorado Department of Public Health and Environment (CDPHE) and the Governor’s office immediately responded to news of the CPP stay by announcing that Colorado would continue forward with development of the Colorado plan implementing the CPP. Using Colorado as an example, does Colorado have sufficient legislative authority to voluntarily implement the CPP even if the CPP is struck down by the Supreme Court?

It’s a difficult question without an immediately clear answer. On the one hand, there is ample precedent within the structure, history, and common law decisions of the Clean Air Act that a State may impose more stringent limits and programs than those required by the Clean Air Act. Even if the CPP is struck down, there is no limit within the Clean Air Act to Colorado voluntarily imposing more stringent standards than mandated by EPA.

On the other hand, the Colorado legislature directs the Colorado Air Quality Control Commission to ensure that the Colorado State Implementation Plan “shall meet all requirements of the federal act and shall be revised whenever necessary or appropriate.”  C.R.S. § 25-7-105(1)(a)(I). Being creatures of statute, administrative agencies must act only within the authorization of their organic legislation. Colorado-Ute Electric Ass’n v. Air Pollution Control Com. of Colorado Dep’t of Health, 648 P.2d 150 (Colo.App. 1981), citing Travelers Indemnity Co. v. Barnes, 191 Colo. 278, 552 P.2d 300 (Colo. 1976); Big Top, Inc. v. Schooley, 149 Colo. 116, 368 P.2d 201 (Colo. 1962).  While the Colorado legislature has clearly directed the Colorado AQCC to meet the requirements of the federal act, the legislature has not given the AQCC a clear directive to implement greenhouse gas regulations more stringent than those mandated by EPA.  One could theoretically argue that this lack of a clear directive from the Colorado legislature means that AQCC is not authorized or empowered to adopt more stringent greenhouse gas regulations because the AQCC must act only within the enumerated powers of its organic legislation. There is no direct precedent in Colorado testing that authority; in Colorado at least, neither the expansion of the AQCC’s power nor the limitation of its power has been directly tested in the Court system.

Consider also that Colorado’s State Implementation Plan must be reviewed and approved by the Colorado legislature. While that review has not typically been used in the past to limit the scope of Colorado’s State Implementation Plan, one could envision a challenge in the legislature if Colorado took voluntary steps to implement an invalidated CPP.

Other states likely have similar statutory schemes and authorizing legislation for their regulatory agencies and commissions. Similarly difficult questions are therefore likely to arise throughout the nation as States try to sort out whether they proceed with implementation. This is but another example of the uncertainty created by the Supreme Court’s recent decision to stay implementation of the CPP.

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About this Author

Thomas Dougherty, Utility, Energy, Attorney, Lewis Roca Rothgerber, law firm

Mr. Dougherty represents a broad range of commercial, utility, energy, government, and private clients in general civil ‎and real property litigation, and regulatory matters. He has extensive experience in electrical utility, clean energy, ‎and infrastructure projects as well as eminent domain, land use, and permitting proceedings. As an attorney and an ‎engineer, Mr. Dougherty brings a unique perspective and understanding to the technical, design, and practical implementation ‎aspects of client projects.

Adam DeVoe, Environmental Litigation Attorney, Lewis Roca Law Firm
Of Counsel

Mr. DeVoe is in the firm’s Government and Regulatory Affairs practice group. His practice is focused ‎on environmental litigation and compliance, natural resources law, and water rights. He represents ‎private and public companies in virtually all facets of environmental compliance, environmental ‎planning, environmental due diligence, and risk management. Mr. DeVoe specializes in air quality ‎compliance, air quality regulatory defense, and air quality litigation matters. He also has broad ‎experience with environmental matters ranging from water quality to endangered species, including ‎major federal environmental statutes.‎