Summaries of Selected Opinions, 1020 COBJ, Vol. 49, No. 9 Pg. 84

Position:Vol. 49, 9 [Page 84]
 
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49 Colo.Law. 84

Summaries of Selected Opinions

Vol. 49, No. 9 [Page 84]

Colorado Lawyer

October, 2020

US COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 18-9507. Sierra Club v. United States Environmental Protection Agency. 7/2/2020. Final Administrative Action of the U.S. EPA. Judge Bacharach. Clean Air Act—Statutory and Regulatory Construction—State Implementation Plans—New Source Review—Standing.

In 1997, PacifiCorp sought preconstruction permits to modify an industrial plant (the plant) in Utah through the "new source review" (NSR) process of Tide I of the Clean Air Act (Act). In considering PacifiCorp's permit request, Utah determined that the modifications triggered only minor NSR requirements. This determination went unchallenged. During the same time period, PacifiCorp was obtaining its initial operating permit for the plant under Title V of the Act. Utah ultimately issued the Title V permit in 1998, incorporating the determination that the modifications required only minor NSR.

The Title V permit was required to be periodically renewed. In 2001 PacifiCorp applied to renew the Title V permit, but Utah waited roughly 14 years to act on the application. When Utah finally acted in 2015, it renewed PacifiCorp's Title Vpermit, incorporating the requirements from the minor NSR permit. Under the Act's framework, Utah sent its proposed permit to the U.S. Environmental Protection Agency (EPA), and the EPA did not object.

The Sierra Club filed a petition to compel the EPA to object, arguing in part that the 1997-99 modifications should have triggered major NSR requirements. Relying on Utah's earlier refusal to apply major NSR requirements, the EPA denied the Sierra Club's petition by focusing on a narrow meaning of the regulatory term "applicable requirements," interpreting it as a general reference to the requirements stated in the prior Tide I permit.

The Sierra Club appealed, and as a threshold matter, intervenor PacifiCorp contended that the Sierra Club lacked standing. The Tenth Circuit held that the Sierra Club had standing because (1) its members experience health risks and diminished visibility of nearby national parks and wilderness areas, and therefore suffered an injury in fact; (2) the injury was fairly traceable to the challenged action; and (3) it is likely that the injury will be redressed by a favorable decision.

On the merits, the petition for review turned on the meaning of the term "applicable requirements" in the regulation. Under Tide I of the Act, the EPA sets national air quality standards and provides oversight and enforcement. To achieve compliance with these standards, states must develop implementation plans and submit them to the EPA for approval. These plans require many industrial sources of pollution to obtain preconstruction permits through the NSR process. The required NSR differs for "major" or "minor" sources of pollution. Major NSR is required if a new or modified source would emit pollutants above certain thresholds. Only minor NSR is required if emissions would fall below the applicable thresholds, and minor NSR entails "only the barest of requirements." The states conduct NSR under their implementation plans.

Title V of the Act and the accompanying regulation allow renewal of these permits only if they ensure "compliance with" all of the "applicable requirements." The regulatory definition of "applicable requirements" includes all requirements in the state's implementation plan. Here, Utah's implementation plan broadly requires compliance with the Act. Thus, all of the Act's requirements constitute applicable requirements under the regulation, and the regulatory definition unambiguously required that each Tide Vpermitinclude all requirements in a state's implementation plan, including Utah's requirement for major NSR. Accordingly, the EPA's interpretation of "applicable requirements" in the order conflicted with the unambiguous regulatory definition.

PacificCorp also argued that the Sierra Club waived its challenges by failing to prove the applicability of major NSR requirements. However, the EPA didn't reach the merits of the Sierra Club's petition. Instead, it relied on the meaning of the regulatory term "applicable requirements." Given this reliance, the Sierra Club focused on the EPA's reasoning and had no reason to argue the merits of the underlying petition, so it did not waive its challenge.

PacifiCorp and Utah also argued that the Sierra Club failed to demonstrate that emissions would have exceeded the threshold for major NSR. Again, the EPA rejected the petition based on the meaning of "applicable requirements," not a failure to demonstrate emissions triggering major NSR requirements, and the Tenth Circuit's review was confined to the EPA's reasons for its decision.

Pacificorp and Utah further argued that the Sierra Club's petition was untimely because the relevant time period expired in 1998 when Utah issued the original Title V permit. However, the EPA did not deny the petition based on timeliness, and the Sierra Club timely objected to the 2016 Title V Permit.

PacificCorp also argued that the Sierra Club's petition was barred by laches. The Act requires the EPA to object to a Tide V permit if a petitioner demonstrates that the permit doesn't comply with the Act, and this requirement cannot be displaced through laches.

Utah also argued that its state implementation plan requires use of state permitting procedures, preventing the Sierra Club from invoking the Tide V proceedings to collaterally attack the minor NSR permit issued in 1997. But Congress has prescribed the administrative procedure for objections to Tide V permits, under which the EPA must object when the Title V permit omits an applicable requirement, which includes the appropriate form of NSR. Thus, if the Sierra Club demonstrates the applicability of major NSR requirements, the EPA must object to the Title V permit even if the Sierra Club' s petition could be viewed as a collateral attack on Utah's permitting decision in 1997.

The order was vacated and the case was remanded to the EPA for further consideration of the petition.

No. 19-2149. Kapinski v. City of Albuquerque. 7/6/2020. D.N.M. fudge Tymkovich. 42 U.S.C. § 1983 Civil Rights Claim—Fourth Amendment Violation—Qualified Immunity—Probable Cause.

Plaintiff was arrested and prosecuted for murder after shooting and killing two men in a late-night altercation in a crowded church parking lot. Trial evidence included video surveillance footage. The detective's warrant affidavit for plaintiff's arrest was based on eyewitness interviews; it did not mention the video footage, which the detective had viewed. At trial, the jury found plaintiff not guilty on the basis of self-defense.

Plaintiff brought civil rights claims under 42 U.S.C. § 1983 against the detective and the City of Albuquerque (City), alleging constitutional violations under the Fourth Amendment and a state law claim. The federal claims relied on the argument that the detective unconstitutionally omitted the video footage, which was exculpatory evidence, from the warrant affidavit. The detective moved for summary judgment on qualified immunity grounds, and the City moved for summary judgment on the state law claim. The district court granted the detective's motion, holding that plaintiff failed to show a constitutional violation, and even if the omission violated the Fourth Amendment, defendants were entitled to summary judgment because the law on this issue was not clearly established. The district court declined to exercise jurisdiction over the state law claim.

On appeal, plaintiff contended that the district court erred in granting the detective qualified immunity, arguing that her omission of the video evidence sufficiently tainted the arrest warrant to negate probable cause and make the arrest unconstitutional. Under Franks v. Delaware, 438 U.S. 154 (1978), plaintiff had to show that (1) the omitted information was material in that its inclusion would have vitiated probable cause for issuing the warrant, and (2) the detective acted with recklessness in omitting the information.

The Tenth Circuit analyzed the materiality prong by considering a scenario where the detective had included the video footage as an attachment to the warrant affidavit. Although a jury could reasonably conclude from the video footage that plaintiff was acting in self-defense, an objective viewing did not negate probable cause for plaintiff's arrest and prosecution for murder. Thus, the omitted video footage was immaterial.

The recklessness factor requires evidence that the officer entertained serious doubts as to the truth of the allegations. The fact that the detective included evidence militating in favor of self-defense in the affidavit negated the inference that she was recklessly indifferent to evidence suggesting plaintiff acted in self-defense. Further, given the largely consistent nature of the video footage with the eyewitness accounts and the fact that the detective viewed the footage in the...

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