Defend Colorado v. Governor Jared Polis

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.

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
 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 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.

1
 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).

2
¶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

3
 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

4
 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.”

5
 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).

6
 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

7
 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.

8
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

9
 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.

10
 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.”

11
  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).

12
 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

13
 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

14
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.

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 (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

16
 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

1The 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).

17
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.

18
 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.

19
¶ 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

20
 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

21
 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

22
 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

23
 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

24
 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

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 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

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 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

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 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

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 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).

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¶ 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

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 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

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 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

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 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

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 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.

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