Utah Supreme Court
December 4, 2009
Two rulings on the same permit, issued the same day. One of them was argued by two Sevier County residents with no legal training.
The centerpiece
Two cases challenging the same air permit reached the Utah Supreme Court from the same January 2008 Air Quality Board order. The Court decided them together and issued both opinions on December 4, 2009.
One was brought by the Utah Chapter of the Sierra Club and the Grand Canyon Trust, represented by attorneys.
The other was brought by two Sevier County residents who represented themselves.
Both won.
Before the appeal: the standing fight
The permit challenges nearly ended before they were heard.
After the October 2004 approval order, the Utah Air Quality Board denied the Sierra Club standing to challenge it. Under the Board’s reasoning, the organization had no sufficiently direct stake in a permit issued for a plant in Sevier County.
The Utah Supreme Court reversed in 2006, in Utah Chapter of Sierra Club v. Utah Air Quality Board, 2006 UT 74. The Court held that the Sierra Club had standing, relying in part on affidavits from members with direct interests in livelihood, health, and property values in the area around the site. The decision clarified Utah standing law for environmental organizations and remains cited for that proposition.
The Court decided that case on November 21, 2006. The Grand Canyon Trust was a co-petitioner.
The case then went back to the Board, which heard argument on October 1 and November 12, 2007, ruling from the bench each time. On the first day it held that the approval order had not automatically expired. In November it held that the executive secretary had conducted a proper review. Both rulings were memorialized in an order dated January 9, 2008.
That order produced two appeals: No. 20080042 and No. 20080113.
Case one: Sierra Club
Utah Chapter of the Sierra Club v. Air Quality Board, 2009 UT 76 (No. 20080113)
Petitioners were represented by Joro Walker and John Pace. The Air Quality Board was represented by Utah Attorney General Mark Shurtleff with assistant attorneys general Fred G. Nelson, Paul McConkie, and Christian C. Stephens. Sevier Power was represented by Fred W. Finlinson, Brian W. Burnett, and James D. Gilson. Michael G. Jenkins and Martin K. Banks appeared for the intervenor, PacifiCorp. Joel Ban appeared for Utah Physicians for a Healthy Environment as amicus.
The Court affirmed in part and reversed in part. It affirmed the Board on one point: carbon dioxide was not at that time subject to Best Available Control Technology review.
It reversed on the points that mattered to the permit. The Board had failed to require that Integrated Gasification Combined Cycle technology be considered in the Best Available Control Technology analysis, and the nitrogen-oxide limit was inadequate. That limit was 0.1 pounds per million BTU on a 24-hour average, the figure written into the 2004 approval order.
IGCC was the central technical argument of the entire campaign. Sevier Power proposed circulating fluidized bed combustion. Opponents argued that a cleaner gasification technology existed, was commercially available, and therefore had to be evaluated before the state could conclude that the proposed design represented best available control. The Court agreed that the question could not simply be skipped.
Case two: Kennon
Kennon v. Air Quality Board, 2009 UT 77 (No. 20080042), decided December 4, 2009
James O. Kennon and Dick Cumiskey brought this appeal as members of Save Our Air and Resources. They appeared pro se, meaning they filed their own briefs and argued their own case before the Utah Supreme Court without attorneys.
Chief Justice Christine Durham wrote the opinion. Justices Durrant, Wilkins, Parrish, and Nehring joined it.
The petitioners raised three issues:
- Whether the federal regulation at 40 C.F.R. section 52.21(r)(2) applied, so that the approval order automatically expired eighteen months after it was granted.
- Whether Utah’s rule gave the executive secretary of the Division of Air Quality discretion to grant an open-ended extension of the permit without conducting a new Best Available Control Technology review.
- Whether their due-process rights had been violated by the absence of an opportunity for public comment.
The Court found the third issue inadequately briefed and did not reach it. On the first two, it held that the Division had misapplied its own PSD enforcement rule, R307-401-11.
Two conclusions did the work.
First, an open-ended extension with no new construction deadline was irrational. A permit condition requiring construction to begin within eighteen months cannot be satisfied by an extension that sets no new date at all.
Second, the claimed eighteen-month review was not supported by substantial evidence.
The Post-it note
The rule required review if construction had not begun within eighteen months. Construction had not begun. The question at that point was simple: did the review happen?
The entire documentary record the Division could produce was a photocopy of a Post-it note. It read:
From the opinion, at paragraph 28:
Kennon v. Air Quality Board, No. 20080042
A record limited to a Post-it note indicating that someone was contacted regarding a review is woefully inadequate to convince a reasonable person that a review took place, let alone that the review was sufficiently rigorous to ensure that an approval order implemented the best control technology and would not tie up increment limits unnecessarily.
The Division’s witnesses did not save it. The Court noted that their testimony “merely rehearsed that a review took place,” and that when pressed for specifics, such as which other permits had been compared to Sevier Power’s, they could not provide any.
The Court reversed and remanded, directing that a proper review be conducted and that any continued permit carry a reasonable construction deadline.
What the two rulings did
Taken together, the December 4, 2009 decisions established that Utah’s PSD enforcement rule must be interpreted to serve the goals of the federal Clean Air Act, and specifically that:
- A Best Available Control Technology analysis has to consider available cleaner technologies, including IGCC, rather than accepting the applicant’s proposed design as the ceiling.
- The state cannot grant an open-ended permit extension without setting a new construction deadline.
- A required technical review has to be documented well enough to prove it happened, on substantial evidence.
The practical result was that the 2004 approval order no longer stood. Sevier Power would have needed to go back through review, under 2009 technology standards rather than 2004 ones, for a plant it had already been unable to finance or build for five years.
It never did. The coal plant was never constructed.
Why the pro se detail matters
Appearing pro se before a state supreme court is uncommon. Winning is rarer still.
Kennon and Cumiskey were not attorneys and were not backed by a legal department. They read the federal regulations, read the state rule, identified an argument the represented parties had not made the centerpiece of their own appeal, briefed it, and argued it. The eighteen-month expiration question was theirs, and it is the reason the Post-it note ended up in a published Utah Supreme Court opinion.
The represented case and the pro se case reinforced each other. The Sierra Club’s appeal attacked the technical substance of the permit. Kennon and Cumiskey’s appeal attacked whether the permit was still alive at all.
Kennon did not have long to enjoy it. He died before 2011, less than two years after the ruling, and Cumiskey took over as president of SCCAW.