Colo. SC: Suit over Clean Air Clean Jobs Act plan can move forward

By Jessica M. Karmasek | Apr 24, 2012



DENVER (Legal Newsline) - The Colorado Supreme Court has ruled that a lawsuit over the state's Clean Air Clean Jobs Act plan can proceed.

The plan, which was approved by the Colorado Public Utilities Commission, aims to close coal-fired power plants and replace them with natural gas to cut air pollution.

The Associated Governments of Northwest Colorado -- a voluntary regional association representing cities and counties, including Mesa, Garfield, Rio Blanco, Moffat and Routt -- timely petitioned the Routt County District Court, in two cases, for a writ of certiorari.

The AGNC wished to challenge the PUC's orders, which adopted, in part, the emission reduction plan of the Public Service Company of Colorado.

The group alleged that the plan was untimely filed in violation of the Clean Air Clean Jobs Act and its due process rights; relied unlawfully on a determination of the Colorado Department of Public Health and Environment; was arbitrary, capricious and unsupported by evidence; failed to adequately consider economic and environmental effects; and depended on unreliable cost calculations.

The AGNC also alleged that two commissioners should have been disqualified from participating in the decisions.

The PUC moved to dismiss on the ground that the Routt County District Court lacked subject matter jurisdiction. It pointed to Colorado law, Section 40-6-115.

The section requires that any suit brought to challenge a PUC order be "commenced and tried" in district court, either in the county the petitioner -- in this case, the AGNC -- maintains its principal office or place of business, or in Denver District Court.

The district court found -- and AGNC did not dispute -- that its principal office or place of business is not in Routt County but in Garfield County.

Nevertheless, the Routt County District Court did not dismiss the case. It concluded that the language in Section 40-6-115 was a venue provision, not a jurisdictional limitation.

As the court explained, Routt County is not the AGNC's primary place of business; Garfield County is. Routt County, therefore, has no authority to review the PUC's decision at issue.

However, it noted, Routt County does have general jurisdiction over the class of cases before the court and may change venue to the proper forum.

As such, the court ordered the AGNC to select one of the two forums, and indicated that it would order a transfer.

Given the choice of venue, the AGNC selected the Denver District Court.

Soon after, the PUC initiated an original proceeding with the state Supreme Court, arguing that the case should be dismissed for lack of jurisdiction because it was not "commenced" in a proper forum.

The Court issued a rule to show cause why the case should not be dismissed.

In its opinion Monday, the state's high court agreed with the Routt County District Court, holding that Section 40-6-115 mandates venue and does not limit jurisdiction.

Justice Gregory J. Hobbs Jr. authored the majority's opinion.

"Here, there is no question that the petition for judicial review was timely filed and that AGNC met the other substantive requirements set forth according to the four factors identified in Trans Shuttle," he wrote.

"We do not construe the General Assembly's intent in enacting section 40-6-115 as prohibiting a venue transfer to the Denver District Court, as here. The district court correctly determined that venue was proper in the district court of either Garfield County or the City and County of Denver."

Accordingly, the Court discharged the rule and returned the case to the Routt County District Court so that it may transfer the case to the Denver District Court.

Attorney General John W. Suthers represented the Colorado Public Utilities Commission, chairman Joshua Epel and members James K. Tarpey and Matt Baker.

From Legal Newsline: Reach Jessica Karmasek by email at

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