Utah Physicians for a Healthy Environment and Friends of Great Salt Lake, Petitioners,
Executive Director of the Utah Department of Environmental Quality and the Director of the Utah Division of Air Quality, in their official capacity, the Utah Department of Environmental Quality, the Utah Division of Air Quality, and Holly Refining & Marketing Company-Woods Cross LLC, Respondents.
Petition for Review of Final Agency Action
Walker, Charles R. Dubuc, Jr., Salt Lake City, for
petitioners Utah Physicians for a Healthy Environment and
Friends of Great Salt Lake
D. Reyes, Att'y Gen., Christian C. Stephens, Craig W.
Anderson, Marina V. Thomas, Asst. Att'ys Gen., Salt Lake
City, for respondents Utah Department of Environmental
Quality and Utah Division of Air Quality
J. Christiansen, David C. Reymann, Cheylynn Hayman, Megan J.
Houdeshel, Salt Lake City, for respondent Holly Refining
& Marketing Company-Woods Cross LLC
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas, and
Judge Orme joined.
recused himself, Justice Pearce does not participate herein;
Court of Appeals Judge Gregory K. Orme sat.
Associate Chief Justice
This case presents a question parallel to that resolved in
Utah Physicians for a Healthy Environment v. Executive
Director of the Utah Department of Environmental
Quality, 2016 UT 49, 391 P.3d 148 ("Utah
Physicians I"). In both cases the Director of the
Utah Division of Air Quality approved a permit for a new
project at an oil refinery. And in both cases the Executive
Director of the Utah Department of Environmental Quality
entered a final agency action adopting the findings and
conclusions of an Administrative Law Judge and affirming the
issuance of the permit. In both cases, moreover, petitioners
Utah Physicians for a Healthy Environment (and others) sought
to challenge the Executive Director's final action in a
In Utah Physicians I, we dismissed the petition for
judicial review of the Executive Director's final action.
We did so because the petitioners formally sought to
challenge the "Executive Director's final
order" but failed to "actually address the alleged
errors in the Executive Director's final order in their
opening brief." Id. ¶ 18 (citing Utah Code
§ 63G-4-403). Thus, we emphasized that our
"jurisdiction is restricted by statute to a review of
the Executive Director's" final action. Id.
¶ 2. And because petitioners "altogether failed to
address their opening brief and arguments to the final order,
" but "opt[ed] instead to attack only the
sufficiency of the" initial permitting decision of the
Director of the Division of Air Quality, we dismissed the
petition on procedural grounds. Id. We held,
specifically, that petitioners had failed to carry their
"burden of persuasion" because they nowhere
identified "specific parts of the Executive
Director's final order they believed were incorrect,
" thus "dump[ing] the burden of argument and
research" on the court. Id. ¶ 19 (quoting
State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820).
The same problems are evident here. As in Utah Physicians
I the petitioners here are formally challenging the
final action of the Executive Director. But petitioners take
the same fatal tack in their briefing-they direct their
arguments to the initial permitting decision of the Director
of the Division of Air Quality, and fail to identify
"specific parts of the Executive Director's"
final action challenged on appeal. Id.
There is a lone reference to the Executive Director's
decision in the argument section of petitioner's opening
brief-at page 46, where petitioners criticize the Executive
Director's characterization of the "emission
modeling analysis" used by Holly Refining and Marketing.
But even on this point the petitioners fail to carry their
burden. They criticize the Executive Director's
assessment of Holly's emission modeling analysis within
her short-term air quality analysis. Yet they make no effort
to explain how that error threatens the viability of the
Executive Director's final agency action. They instead
use the criticism to further demonstrate the purported flaws
of the Director's short-term air quality analysis within
the original permitting decision.
This is insufficient under Utah Physicians I. That
decision requires petitioners to carry the burden of
identifying reversible errors in the final action of the
Executive Director-and of setting forth grounds in the record
facts or law for overturning that final action. It is not
enough for petitioners to direct their ire at the
Director's initial permitting decision, leaving the
"burden of argument and research" on the court.
The Utah Physicians I decision was handed down after
the briefing but before the oral argument in this case. When
respondents cited that decision in a letter submitted under
Utah Rule of Appellate Procedure 24(j), petitioners offered
no plausible ground for distinguishing that decision. They
effectively asked us to reverse our position in Utah
Physicians I and to adopt the position of the dissent in
that case instead. See Id. ¶¶ 51- 64
(Durham, J., dissenting) (asserting that the court should not
disregard arguments "that directly challenge the
decision of the fact-finder rather than the reasoning of an
intermediate appellate body" because the intermediate
appellate body's decision is potentially persuasive at
best). This we decline to do.
We reaffirm our decision in Utah Physicians I. And
we dismiss the petition for review in this case for reasons