Sierra Club v. Intermountain Power Service Corp.

2006 UT 73
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Utah Chapter of the Sierra Club, 	No. 20050454
a non-profit organization, and
Grand Canyon Trust, a non-profit
organization,
Petitioners,
v.
Utah Air Quality Board, an agency
of the State of Utah, and
Intermountain Power Service 	F I L E D
Corporation,
Respondents. 	November 21, 2006
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Original Proceeding in the Utah Court of Appeals
Attorneys: 	Joro Walker, Sean Phelan, Salt Lake City, for
petitioners
Mark L. Shurtleff, Att’y Gen., Fred G. Nelson,
Paul McConkie, Asst. Att’ys Gen., Salt Lake City,
George M. Haley, E. Blaine Rawson, Salt Lake City,
for respondents
---
On Certification from the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	The Executive Secretary of the Utah Division of Air
Quality granted a permit to the Intermountain Power Service
Corporation (Intermountain Power) authorizing the construction
and operation of an additional 950-megawatt coal-fired power
plant at the Intermountain Power plant in Millard County, Utah.
Shortly thereafter, the Sierra Club filed a petition before the
Utah Air Quality Board (the Board), objecting to the permit and
seeking to intervene in all related proceedings. 	The Board
denied the Sierra Club’s petition, declaring that the Sierra Club
did not have standing. 	We hold that the Sierra Club does have
standing to challenge the permit.

No. 20050454 	2
BACKGROUND
¶2 	On October 15, 2004, the Utah Division of Air Quality
issued an approval order (the order) granting a permit to
Intermountain Power to construct and operate an additional 950-
megawatt coal-fired power plant at the Intermountain power Plant
near Delta, in Millard County, Utah. 	Delta is located near the
Colorado Plateau, an area known for stunning geography and
outdoor recreational sites, such as Capitol Reef National Park.
It also borders the Great Basin Desert.
¶3 	Following the issuance of the order, the Sierra Club
and Grand Canyon Trust (collectively, the Sierra Club) filed a
Request for Agency Action with the Board, claiming the proposed
modification to the Intermountain Power plant failed to comply
with the federal Clean Air Act, 42 U.S.C. §§ 7401 to 7671q
(2000), the Utah Air Conservation Act, Utah Code Ann. §§ 19-2-101
to -127 (2003 & Supp. 2005), and the Utah Administrative
Procedures Act, Utah Code Ann. §§ 63-46b-0.5 to -23 (2004 & Supp.
2005). 	The Sierra Club’s Request for Agency Action asked the
Board to declare the order for the proposed power plant expansion
illegal, revoke the approval order, and additionally or
alternatively remand the order with instructions that the Utah
Air Quality Division comply with the law and undertake the proper
analysis as part of the permitting process. 	As required by the
Utah Administrative Code, the Sierra Club filed a Statement of
Standing and Petition to Intervene in conjunction with its
Request for Agency Action. 	Utah Admin. Code r. 307-103-6(3)
(2006). 	It accompanied its petition with the affidavits of Brian
Cass, Stephen Trimble, and Ray Bloxham, persons belonging to
either the Sierra Club or the Grand Canyon Trust.
¶4 	Mr. Cass is an Arizona resident who owns a home in
Boulder, Utah and is a current member of the Grand Canyon Trust.
Mr. Cass is a videographer who has filmed and produced
documentaries on the Colorado Plateau and the Escalante River.
His documentaries focus on “the scenic beauty of the area” and on
the area’s “archaeological and paleontological” resources. 	Mr.
Cass also uses the Colorado Plateau for recreation. 	His
affidavit alleges that if Intermountain Power is allowed to
expand its current plant, the emissions from that plant will
impair the visibility around his home in Boulder, Utah, and of
the Colorado Plateau. 	In fact, he states that he has already
“noticed that when visibility is impaired from pollution, [he]
cannot see as far, the colors of the land forms are muted, and
distant formations [are] less distinct.” 	According to Mr. Cass,
this decreased visibility will adversely affect his livelihood as

3 	No. 20050454
a videographer. 	Mr. Cass’ affidavit also expresses his concern
that the emissions from the proposed plant will harmfully affect
his health and his family’s health, negatively impact vegetation
and soil around his home, decrease the value of his property, and
contribute to global warming.
¶5 	Mr. Trimble is a resident of Salt Lake County who owns
property and a home in Torrey, Utah, to which he travels
approximately twice a month. 	He currently belongs to the Sierra
Club. 	Mr. Trimble is a photographer, author, and naturalist who
has photographed and written about the Colorado Plateau and the
Great Basin Desert. 	Mr. Trimble’s works specifically focus on
the scenic beauty, flora and fauna, and “magnificent vistas” of
the areas. 	Mr. Trimble’s travels have repeatedly taken him to
Delta, Utah. 	In his affidavit, Mr. Trimble alleges that the
operation of the expanded plant will create emissions that will
impair the visibility around his Torrey home, on the Colorado
Plateau, and in the Great Basin Desert. 	According to him, this
will adversely affect his economic livelihood as an author and a
photographer, particularly because he cannot take “quality
photographs” when visibility is impaired by pollution. 	Mr.
Trimble also expresses concern that the plant’s emissions will
affect his recreational interests in the Colorado Plateau and the
Great Basin Desert. 	Particularly, he worries that the impaired
visibility from pollution will “obscure[] dark night skies.” 	He
fears the same emissions will impair his health and his family’s
health when they visit their Torrey home and recreate in the
area. 	Specifically, he is concerned about the “levels of
mercury, particulate matter, sulfur dioxide, and carbon dioxide”
that the expanded plant will emit. 	Additionally, Mr. Trimble
believes the emissions will decrease the value of his Torrey
property and adversely impact the “water quality, wildlife,
wildlife habitat, vegetation and soils” around his Torrey home
and on the Colorado Plateau.
¶6 	Finally, Mr. Bloxham is a member of the Sierra Club who
currently resides in Salt Lake County. 	He and his family
frequently travel to the Great Basin Desert and the Colorado
Plateau. 	Due to these travels, he has driven through Delta many
times. 	Most recently, he traveled through Delta in November
2004. 	At that time, he observed the air emissions from the
current plant. 	Mr. Bloxham is concerned that the proposed
expansion of the power plant will produce emissions that will
impair the visibility around the areas he enjoys visiting and
will particularly harm the area’s “outstanding vistas.” 	Indeed,
he states that he has already noticed that “when visibility is
impaired from pollution, [he] cannot see as far, the colors of
the land forms are muted, and distant formations [are] less

1 Pacificorp also filed a Petition to Intervene in response
to the Sierra Club’s Request for Agency Action and Petition to
Intervene. 	Pacificorp is not a party to the current proceeding,
and its petition is not relevant to our decision in this case.
No. 20050454 	4
distinct.” 	He is also concerned that the emissions will impair
his health and his family’s health when they travel to the Great
Basin Desert and the Colorado Plateau. 	Specifically, he points
to the “levels of mercury, particulate matter, sulfur dioxide,
and carbon dioxide contained” in the proposed plant’s emissions.
Mr. Bloxham also alleges the emissions will contribute to “global
warming and climate change, which in turn, will further adversely
impact the Colorado Plateau and the Great Basin Desert . . . and
every aspect of [his] life.”
¶7 	In response to the Sierra Club’s petition and
affidavits, the Millard County Commission (the Commission) filed
a Petition to Intervene, 1 claiming it was the most appropriate
party to represent “the health, environmental and economic
interest of those living, working, and playing near the plant.”
Unlike the Sierra Club, however, the Commission argued that the
proposed plant expansion was in the best interests of Millard
County.
¶8 	The Board held a hearing to determine whether the
Sierra Club and the Commission would be permitted to intervene.
After the conclusion of the hearing, the Board denied the Sierra
Club’s petition, holding it could not establish a distinct and
palpable injury because its affiants expressed only generalized
concerns, it had not proffered adequate evidence regarding
causation, and it was not the most appropriate party.
Specifically, the Board held that the Sierra Club’s affiants’
“allegations of effect on visibility, concern for public health,
and global warming [were] general public concerns that [did] not
establish a personal, particularized stake in the issuance of the
permit” because the concerns were shared by the public at large.
The Board also held that the Sierra Club was not the “most
appropriate entity” and that the issues were not of “such great
importance [to] warrant standing.” 	Because the Board denied the
Sierra Club’s petition, it did not need to address Millard
County’s petition, which was only filed in response to the Sierra
Club’s petition.
¶9 	Following the Board’s ruling, the Sierra Club filed a
Petition for Review with the Utah Court of Appeals, seeking
reversal of the Board’s decision to deny it standing. 	The court
of appeals certified this question to this court pursuant to Utah

2 We realize that the logical short designation for the
companion case would be Sierra Club I. 	However, the Utah Court
of Appeals has already issued two opinions in which the Sierra
Club was a party--Sierra Club v. Department of Environmental
Quality, 857 P.2d 982 (Utah Ct. App. 1993), and Sierra Club v.
Utah Solid and Hazardous Waste Control Board, 964 P.2d 335 (Utah
Ct. App. 1998). 	Those opinions have become known as Sierra Club
I and Sierra Club II, respectively. 	Thus, for clarity’s sake, we
refrain from using similar designations here and instead refer to
the cases before us by the names of the power companies that are
parties to the disputes.
5 	No. 20050454
Code section 78-2a-3(3) (2002). 	We have jurisdiction under Utah
Code section 78-2-2(3)(b) (2002).
STANDARD OF REVIEW
¶10 	We review an agency’s standing determinations for
correctness, granting no deference to the Board’s decision.
Sierra Club v. Utah Air Quality Control Bd., 2006 UT 74, ¶ 15,
148 P.3d 960 (Sierra Club v. Sevier Power Co.). 2 	However, this
court may grant relief only if the “person seeking judicial
review has been substantially prejudiced” by the agency’s
decision. 	Utah Code Ann. § 63-46b-16(4) (2004). 	“A party has
been substantially prejudiced if ‘the alleged error was not
harmless.’” 	WWC Holding Co. v. Pub. Serv. Comm’n, 2002 UT 23,
¶ 7, 44 P.3d 714 (quoting Mountain Fuel Supply Co. v. Pub. Serv.
Comm’n, 861 P.2d 414, 423 (Utah 1993)).
ANALYSIS
¶11 	In Sierra Club v. Sevier Power Co., 2006 UT 74, 148
P.3d 960, which issued concurrently with this opinion, we
clarified that there are “two means by which a party can
establish standing” before the courts of this state. 	Id. ¶ 18.
The traditional test requires the petitioning party to establish
a “distinct and palpable injury.” 	Id. 	However, if the
petitioning party does not have standing under the traditional
test, that party may still have standing if it can demonstrate
that it is an appropriate party asserting a matter of great
public importance. 	Id. 	We will discuss the Sierra Club’s
standing under each of these tests below.
I. 	THE SIERRA CLUB HAS STANDING UNDER THE TRADITIONAL TEST
¶12 	Under the traditional test for standing, the party must
allege that it has suffered or will “‘suffer[] some distinct and
palpable injury that gives [it] a personal stake in the outcome

No. 20050454 	6
of the legal dispute.’” 	Sierra Club v. Sevier Power Co., 2006 UT
74, ¶ 19, 148 P.3d 960 (alteration in original) (quoting Jenkins
v. Swan, 675 P.2d 1145, 1148 (Utah 1983)). 	“When determining
whether a party has suffered a distinct and palpable injury, we
engage in a three-step inquiry.” 	See id. 	First, the petitioning
party must claim that it “has been or will be ‘adversely affected
by the [challenged] actions.’” 	Id. (alteration in original)
(quoting Jenkins, 675 P.2d at 1150). 	Second, the party must
“allege a causal relationship ‘between the injury to the [party],
the [challenged] actions and the relief requested.’” 	Id.
(alteration in original) (quoting Jenkins, 675 P.2d at 1150).
Third, the requested relief must be “‘substantially likely to
redress the injury claimed.’” 	Id. (quoting Jenkins, 675 P.2d at
1150). 	“If the party can satisfy these three criteria, [it] has
standing to pursue its claims before the courts of this state.”
Id.
¶13 	In this case, we address the traditional criteria
through the lens of associational standing. 	An association, such
as the Sierra Club, has standing if its individual members have
standing and the participation of the individual members is not
indispensable to the resolution of the case. 	Utah Rest. Assoc.
v. Davis County Bd. of Health, 709 P.2d 1159, 1163 (Utah 1985).
Thus, we must assess whether the Sierra Club’s individual members
have standing to challenge the order. 	We hold that they do; the
Sierra Club’s affiants have identified personal adverse effects,
sufficient causation, and redressability. 	In addition, their
individual participation is not essential to the resolution of
this case.
¶14 	The Sierra Club’s affiants have satisfied the first
traditional standing requirement because they have alleged that
the order approving the plant expansion adversely affects their
interests. 	Mr. Cass and Mr. Trimble have pointed to the
detrimental impact the proposed expansion will have on their
economic livelihoods. 	Mr. Cass’ ability to film and Mr.
Trimble’s ability to photograph the Colorado Plateau will be
significantly impaired if the emissions from the expansion
unlawfully decrease visibility around the Colorado Plateau.
Moreover, damage to the soils, vegetation, and wildlife around
the Colorado Plateau may affect their abilities to produce
documentaries or publish books about the region. 	As we discussed
in Sierra Club v. Sevier Power Co., their allegations “are not
generalized to everyone in the area; [rather] these potential
injuries affect only those who rely on the area and its
environmental quality to make a living.” 	2006 UT 74, ¶ 23.

7 	No. 20050454
¶15 	We conclude, furthermore, that the Sierra Club’s
affiants have identified sufficient adverse effects even without
Mr. Cass’ and Mr. Trimble’s allegations that the plant will
affect their economic livelihoods. 	All three affiants have
claimed the proposed expansion will harm their health, their
families’ health, and their recreational interests in the area.
In addition, Mr. Cass and Mr. Trimble have alleged the proposed
plant expansion will decrease their property values. 	As we
discussed in Sierra Club v. Sevier Power Co., health, recreation,
and property interests are legally cognizable interests for
standing purposes. 	See id. ¶¶ 24, 30-31. 	While, as in that
case, the affiants’ concerns may be shared by many who live near
Delta or who participate in recreational activities around the
Colorado Plateau, the affiants “have not complained about the
impact of the plant’s emissions on the community in general, but
have claimed that the emissions 	will directly affect them and
their families.” 	See id. ¶ 24. 	“That others may also share
their concerns and be subject to the same specific,
individualized injuries does not make the potential harms any
less personal” to the affiants in this case. 	Id.
¶16 	Moreover, as in Sierra Club v. Sevier Power Co., the
injuries alleged in this case have been reduced to a concrete
dispute. 	Id. ¶ 26. 	The issue is “whether the Executive
Secretary complied with various state and federal laws in
granting the permit” for the expansion to Intermountain Power’s
current plant. 	Id. 	“This is a concrete dispute regarding the
potentially harmful results of the Executive Secretary’s alleged
failure to follow existing law, and not merely an academic
dispute about the environmental harms of coal-fired power plants
in general.” 	Id. 	While some of the affiants’ claimed injuries
may be shared by all those who live near Delta or use the
Colorado Plateau for recreational activities, the affiants in
this case all have a direct interest in the dispute as their
economic livelihood, health, and property values are at stake.
Id. 	Finally, there is no concern about the Board resolving a
question that is best left to another branch of government
because the proper branches of government have already passed the
Clean Air Act, 42 U.S.C. §§ 7401 to 7671q (2000), the Utah Air
Conservation Act, Utah Code Ann. §§ 19-2-101 to -127 (2003 &
Supp. 2005), and the Utah Administrative Procedures Act, Utah
Code Ann. §§ 63-46b-0.5 to -23 (2004 & Supp. 2005). 	Id. 	The
affiants in this case merely seek the opportunity to ensure that
the Executive Secretary complies with these laws. 	Id. 	We
therefore hold that the injuries identified by the affiants in
this case “are sufficient to satisfy the ‘adverse effects’
requirement under the traditional standing test.” 	Id.

3 In the Sierra Club’s Reply to Intermountain Power Service
Corporation’s Opposition to Sierra Club’s Standing, the Sierra
Club cited specific sources supporting its proposition that once
the plant is operational, the plant’s emissions could create
health problems. 	For example, the Sierra Club quoted the
Environmental Protection Agency as stating, on its website,
“research indicates that air pollution in the form of particulate
matter . . . is linked to thousands of excess deaths and
widespread health problems.” 	Likewise, the Sierra Club has cited
an article asserting that children exposed to mercury emissions
from American power plants have suffered from diminished
intelligence as a result of the exposure. 	Sierra Club’s Reply
(citing Leonardo Trasande et al., Public Health and Economic
Consequence of MethylMercury Toxicity to the Developing Brain,
Environmental Health Perspectives, Feb. 28, 2005.).
We mention the Sierra Club’s sources only to show that it
has alleged the existence of evidence of a causal link between
the plant’s emissions and the alleged harms. 	By mentioning the
specific sources cited by the Sierra Club, we do not in any way
comment upon the sources’ credibility or scientific value.
No. 20050454 	8
¶17 	Having determined the Sierra Club’s affiants have shown
a distinct and palpable injury, we now turn to whether they have
alleged “a plausible connection between their injuries and the
order authorizing” the expansion of the plant. 	Id. ¶ 32. 	In
Sierra Club v. Sevier Power Co., we held that the affiants had
met this burden. 	Id. 	We likewise hold the affiants in this case
have alleged a plausible connection between their injuries and
the order. 	The Executive Secretary is responsible for denying or
granting permits for the construction and operation of the plant
expansion. 	Thus, his decision to grant the order is “directly
connected” to the expansion of the plant and any resulting harms.
See id. 	Moreover, the affidavits point to specific aspects of
the plant and connect them to specific harms, rather than raising
the general allegation that the mere presence of a coal-fired
power plant is inherently harmful. 	See id. 	For example, the
affidavits allege that the emission of 	“mercury, particulate
matter, sulfur dioxide, and carbon dioxide” have harmful health
effects and “will adversely affect the water quality, wildlife,
wildlife habitat, [and] vegetation and soils” around the Colorado
Plateau. 	Likewise, the affiants have stated that they have
already noticed that on highly polluted days, “[they] cannot see
as far, the colors of the land forms are muted, and [the] distant
formations [are] less distinct.” 	Although the affiants and the
Sierra Club have not yet presented scientific evidence supporting
their claims, they have argued that they could prove causation, 3
and we think their claims present a plausible connection between

9 	No. 20050454
the emissions and the alleged health and environmental effects.
Thus, we believe the Sierra Club has satisfied the causation
requirement of the traditional test. 	See id. (recognizing that
petitioners need not prove causation at the standing phase to the
same extent they would need to prove it to obtain relief at
trial).
¶18 	Finally, the Board has the ability to redress the
affiants’ claimed injuries. 	Id. ¶ 33. 	The Sierra Club has
requested that the Board declare the air emissions permit
illegal, revoke the Executive Secretary’s order, and remand the
matter to the Division of Air Quality for further analysis. 	The
Board is the only party with the authority to grant this relief,
thus it can redress the Sierra Club’s identified adverse effects
by declaring the permit illegal or by referring it to the
Division of Air Quality for further analysis to ensure that the
Executive Secretary’s order complies with state and federal law.
¶19 	We therefore conclude that the Sierra Club, through its
members, has alleged a distinct and palpable injury by pointing
to specific injuries that the plant will cause and that the Board
can remedy by granting the requested relief. 	Moreover, the
individual participation of the Sierra Club’s members is not
necessary to the resolution of this case. 	Thus, the Sierra Club
has satisfied our traditional criteria and is entitled to
standing to challenge the order approving of the expansion to the
plant.
II. 	THE SIERRA CLUB HAS STANDING UNDER THE ALTERNATIVE TEST
¶20 	We hold, alternatively, that the Sierra Club has
standing under the alternative test. 	A party has standing under
the alternative test if it is an appropriate party asserting an
issue of public importance. 	Sierra Club v. Sevier Power Co.,
2006 UT 74, ¶ 35, 148P.3d 960. 	Under the alternative test, an
intervenor qualifies as an appropriate party where it has “‘the
interest necessary to effectively assist the court in developing
and reviewing all relevant legal and factual questions’” and
where the issues are “unlikely to be raised” if the party is not
given standing. 	Id. ¶ 36 (quoting Jenkins v. Swan, 675 P.2d
1145, 1150 (Utah 1983)). 	Once a party satisfies the appropriate
party requirement, it must then demonstrate that it seeks to
raise issues that “‘are of sufficient public importance in and of
themselves’ to warrant granting the party standing.” 	Id. ¶ 39
(quoting Jenkins, 675 P.2d at 1150). 	This requires that “the
court determine not only that the issues are of a sufficient
weight but also that they are not more appropriately addressed by
another branch of government.” 	Id.

4 The federal Clean Air Act provides that all national parks
exceeding six thousand acres are class I Federal areas. 	42
U.S.C. § 7472(a)(4) (2000). 	Congress has “declare[d] as a
national goal the prevention of any future, and the remedying of
any existing, impairment of visibility in mandatory class I
Federal areas which impairment results from manmade air
pollution.” 	42 U.S.C. § 7491(a)(1) (2000). 	Capitol Reef
National Park is a class I Federal area. 	Utah Admin. Code r.
307-405-4(1) (2006).
No. 20050454 	10
¶21 	Here, the Sierra Club is an appropriate party. 	As an
environmental group with members that will be directly affected
by the plant’s expansion, the Sierra Club has an interest in
ensuring that the expanded plant “complies with all applicable
state and federal environmental laws as well as with state
administrative procedures, thus preventing any needless and
unlawful pollution or other environmental destruction.” 	Id.
¶ 42. 	Indeed, in this case the Sierra Club is the only party
seeking to raise the issues of the plant’s detrimental effects on
health, the environment, property values, and recreational
interests. 	Furthermore, because the Sierra Club’s purpose is
environmental protection, it “has the interest and expertise
necessary to investigate and review all relevant legal and
factual questions” relating to the proposed expansion of the
plant. 	Id. 	Thus, we hold that the Sierra Club is an appropriate
party in this case.
¶22 	Moreover, the Sierra Club raises issues of sufficient
public importance. 	The expanded plant will be emitting hazardous
chemicals. 	Given the plant’s proximity to homes and recreational
areas, including Capitol Reef National Park, an area protected by
the federal Clean Air Act, 4 “the Executive Secretary must comply
with all applicable state and federal laws.” 	Id. ¶ 44. 	To
ensure that this happens, it is important that those persons who
will be directly affected by the alleged violations of state and
federal law have the opportunity to be heard. 	Moreover, the
Sierra Club’s “allegations that the Executive Secretary failed to
comply with state and federal law are not more appropriately
addressed by other branches of government.” 	Id. 	Rather, the
legislative and executive branches have already addressed these
issues by passing the Clean Air Act, 42 U.S.C. §§ 7401 to 7671q
(2000), the Utah Air Conservation Act, Utah Code Ann. §§ 19-2-101
to -127 (2003 & Supp. 2005), and the Utah Administrative
Procedures Act, Utah Code Ann. §§ 63-46b-0.5 to -23 (2004 & Supp.
2005). 	The Sierra Club “is merely seeking compliance with these
laws, and thus is entitled to petition the Board for that relief”

11 	No. 20050454
under the alternative test. 	Sierra Club v. Sevier Power Co.,
2006 UT 74, ¶ 44.
CONCLUSION
¶23 	We hold that the Board erred in denying standing to the
Sierra Club. 	In accordance with the Administrative Procedures
Act, we also hold that the Board’s decision substantially
prejudiced the Sierra Club by denying it the opportunity to
challenge the Executive Secretary’s order or to defend its
interests. 	We therefore reverse and remand to the Board with
instructions to allow the Sierra Club to intervene in the
proceedings.
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¶24 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.