Colorado Apartment Association et al v. Ryan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 24-cv-01093-RMR
COLORADO APARTMENT ASSOCIATION; APARTMENT ASSOCIATION OF METRO
DENVER; COLORADO HOTEL AND LODGING ASSOCIATION, INC.; AND NAOIP
COLORADO CHAPTER;
Plaintiffs,
v.
JILL HUNSAKER RYAN, in her Official Capacity as the Executive Director of the
Colorado Department of Public Health and Environment, MICHAEL OGLETREE, in his
Official Capacity as the Director of the Colorado Air Pollution Control Division; AND
WILL TOOR, in his Official Capacity as the Executive Director of the Colorado Energy
Office; and
THE CITY AND COUNTY OF DENVER; THE DENVER CITY COUNCIL; DENVER
MAYOR MIKE JOHNSTON; THE DENVER OFFICE OF CLIMATE ACTION,
SUSTAINABILITY, AND RESILIENCY; AND ELIZABETH BABCOCK, in her Official
Capacity as the Executive Director of the Denver Office of Climate Action,
Sustainability, and Resiliency.
Defendant
AND
COALITION FOR COMMUNITY SOLAR ACCESS, COLORADO SOLAR AND
STORAGE ASSOCIATION, NATURAL RESOURCES DEFENSE COUNCIL, AND
SIERRA CLUB,
Intervenor-Defendants
ORDER
This matter is before the Court on Defendants Jill Hunsaker Ryan, Michael
Ogletree, Will Toor (“State Defendants”) Motion to Dismiss, ECF No. 23, Defendants City
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and County of Denver, Denver City Council, Denver Mayor Michael Johnston, Denver
Office of Climate Action, Sustainability, and Resiliency, and Elizabeth Babcock (“Denver
Defendants”) Motion to Dismiss, ECF No. 24, Intervenor-Defendants Coalition for
Community Solar Access, Colorado Solar and Storage Association, Natural Resources
Defense Council, and Siera Club (“Intervenor-Defendants”) Motion to Dismiss, ECF No.
30, and Motion for Judicial Notice, ECF No. 31. For the reasons stated below, the Court
GRANTS State Defendants’ and Denver Defendants’ Motions to Dismiss for lack of Article
III 	standing 	and 	dismisses 	Plaintiffs’ 	claims 	without 	prejudice. 	Given 	the 	Court’s
determination that it lacks subject matter jurisdiction, Intervenor-Defendants’ motions are
denied as moot.
I. 	BACKGROUND
In this action, Plaintiffs—four organizations whose members either own or manage
buildings 	in 	Colorado, 	some 	of 	which 	are 	in 	Denver—challenge 	certain 	building
performance standards enacted by the State of Colorado and the City of Denver. Plaintiffs
contend 	these 	building 	performance 	standards, 	which 	require 	categories 	of 	large
buildings to reduce their energy use or greenhouse gas emissions by a specified amount
over a period of years, run afoul of the Energy Policy and Conservation Act’s (“EPCA”)
express preemption provision, which preempts state and local energy efficiency and
energy use standards for certain consumer and commercial appliances (“Covered
Products”). Accordingly, Plaintiffs bring this action seeking to have the state and city
regulations declared unlawful and void and ask the Court to enjoin Defendants from
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implementing and enforcing those regulations. Specifically, Plaintiffs ask the Court for
declaratory and injunctive relief under federal law against the enforcement of:
• 	The 	Colorado 	Air 	Quality 	Control 	Commission’s 	(“Commission”) 	final
regulation entitled Building Benchmarking and Performance Standards, 5
CCR 1001-32 (“Regulation 28”) enacting regulations directed by the State
of Colorado’s House Bill 21-1286; and
• 	The 	City 	and 	County 	of 	Denver, 	Colorado’s 	Denver 	Ordinance 	No.
20211310 (“Energize Denver Ordinance”), and the implementing rules for
Energize 	Denver 	enacted 	by 	the 	Denver 	Office 	of 	Climate 	Action,
Sustainability, 	and 	Resiliency, 	(“Denver 	OCASR”) 	entitled 	“Rules 	&
Regulations Governing Energize Denver Building Energy Performance
Requirements” 	(“Energize 	Denver 	Regulations”) 	(the 	Ordinance 	and
Regulations may be collectively referred to as “Energize Denver”).
A. 	Colorado House Bill 21-1286 and Regulation 28
In 2019, the Colorado General Assembly began introducing legislation aimed at
combatting climate change and reducing greenhouse gas (“GHG”) emissions in the state.
Consistent with these goals, in 2021 the Colorado General Assembly passed House Bill
(“HB”) 21-1286. HB 21-1286 aims to reduce GHG emissions from select large residential
and commercial buildings (buildings over 50,000 sq/ft) (“State Covered Buildings”) seven
percent by 2026 and twenty percent by 2030 as compared to 2021 levels. C.R.S. § 25-7-
142(8)(a)(II)(A), (B); ECF No. 1, ¶ 34. Beginning on December 1, 2022, HB 21-1286 also
required owners of State Covered Buildings to submit annual reports detailing their
energy usage for the previous calendar year (“Benchmarking Requirements”). C.R.S. §
25-7-142(3); ECF No.1, ¶ 33.
The General Assembly also directed the Commission to establish statewide
building performance standards to meet the statutory emission reductions. C.R.S. § 25-
7-142(8)(c)(I); ECF No. 1, ¶ 34. The Commission fulfilled this by adopting Regulation 28,
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which applies to both existing and new State Covered Buildings. 5 Colo. Code Regs. §
1001-32; ECF No. 1, ¶ 37. Regulation 28 established building performance standards for
State Covered Buildings to meet by 2026 and 2030 (“Performance Standards”). Id. ¶ 36.
To meet the Performance Standards, State Covered Building owners must implement
energy 	efficiency 	measures 	to 	meet 	certain 	Energy 	Use 	Intensity 	(“EUI”) 	scores
(calculated from a building’s total site energy use per square foot per year), or implement
measures to decrease the building’s GHG emissions and reduce the GHG intensity
(“GHG Intensity”) score (calculated by the carbon dioxide equivalent measures in
kilograms of carbon dioxide equivalent per square foot emitted per year associated with
operations of a State Covered Building), or a combination of both. Id. ¶¶ 38-40; Regulation
28, Part C. Regulation 28 provides owners flexibility in what efficiency measures are
utilized to achieve these targets through multiple compliance pathways. Id. ¶ 42. Owners
may also enroll in utility-offered programs or purchase renewable energy credits. Id. ¶ 45.
Owners may also modify their 2026 and 2030 compliance obligations by applying to the
Colorado Energy Office (“CEO”) for an adjusted EUI score, adjusted GHG Intensity target,
or adjusted compliance timeline. Id. ¶¶ 46, 54-58. The EUI and GHG Intensity targets are
set on a “property type” basis, meaning that the standards differ depending on the
property type of the State Covered Building. Id. ¶ 40.
B. 	Energize Denver Ordinance and Regulations
The Energize Denver Ordinance, passed by Denver’s City Council in 2021, pushes
the 	city 	to 	reach 	net-zero 	greenhouse 	gas 	emissions 	by 	2040 	through 	energy
benchmarking 	and 	performance 	standards 	for 	new 	and 	existing 	commercial 	and
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multifamily buildings, also known as “covered buildings.” Spearheaded by OCASR,
commercial and multifamily buildings with more than 25,000 square feet (“City Covered
Buildings”) are required to meet certain building performance standards in 2024, 2027,
and 2030. Energize Denver requires that these covered buildings determine and report
the subject building’s EUI. Energize Denver calculates a building’s EUI as the total energy
use over 12 months divided by the building’s total square footage and normalized for
weather. ECF No. 24-2, § 2.33. Per regulation, every building type is given a target EUI
to meet by 2030. Some types of buildings are not given an EUI target at all but are instead
required to reduce their EUI by 30% overall. Id. § 4.3(A). The 2024 and 2027 interim EUI
building performance standards in the Energize Denver Regulations are set drawing a
“straight line” from the City Covered Building’s 2019 EUI score to the 2030 EUI building
performance standard to determine interim targets for the 2024 and 2027 compliance
year deadlines. Id. § 4.8(A)(i).
Like Regulation 28, Energize Denver offers multiple compliance pathways to
achieve the ultimate EUI goals. See id. §§ 4.5(A); 4.7(A); 4.7(C); 4.8(C). However, if a
building owner chooses to meet the EUI target through 80% whole building electrification,
OCASR offers a 10% increase to the 2030 EUI target. Id. § 4.5(A). Additionally, the
OCASR Regs offer a number of Alternate Compliance Options such as a Timeline
Adjustment which gives a Covered Building additional time to meet its interim target, id.
§ 4.7(A), and an alternate compliance option for a City Covered Building that has been
issued a 30% reduction goal or which is limited by the Landmark Preservation Board as
to what energy efficient measures can be implemented. Id. § 4.7(C). Furthermore, proof
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of renewable power generation, either on- or off-site, is credited towards a building’s total
energy use. Id. § 4.8(C).
C. 	EPCA
The EPCA regulates the energy efficiency of certain consumer and commercial
equipment. See 42 U.S.C. §§ 6292, 6295. Under the ECPA, these “Covered Products”
are subject to energy conservation standards established by the U.S. Department of
Energy (“DOE”). Id. As relevant here, the EPCA’s standards explicitly preempt state and
local regulations “concerning the energy efficiency” and “energy use” of the products for
which the EPCA sets its own energy efficiency standards. Id. § 6297(c). Section 6297(c)
expressly provides:
[E]ffective 	on 	the 	effective 	date 	of 	an 	energy 	conservation 	standard
established in or prescribed under section 6295 of this title for any covered
product, no State regulation concerning the energy efficiency, energy use,
or water use of such covered product shall be effective with respect to such
product . . . .
Id. (emphasis added). This express preemption provision prevents states from
adopting or enforcing energy efficiency standards for Covered Products regulated by the
EPCA. The Covered Products regulated by EPCA include consumer appliances and
commercial equipment such as air conditioners, water heaters, furnaces, clothes washers
and 	dryers, 	and 	stoves. 	See 	42 	U.S.C. 	§§ 	6292; 	6295; 	6311(1); 	6313. 	“Energy
conservation standard” is defined as “performance standard which prescribes a minimum
level of energy efficiency or a maximum quantity of energy use . . . for a covered product
. . . .” Id. §§ 6291(6)(A); 6311(18). “Energy use” is defined as “the quantity of energy
directly consumed by a consumer or commercial product at point of use.” Id. §§ 6291(4);
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6311(4). “Energy efficiency” is defined as “the ratio of the useful output of services from
a consumer product to the energy use of such product.” Id. §§ 6291(3); 6311(3). “Energy”
is defined as “electricity, or fossil fuels.” Id. §§ 6291(3); 6311(7). There are limited
exceptions to the preemption rule for Covered Products. Id. §§ 6297(d)-(f); 6316(b)(2)(B).
D. 	Impact of Building Performance Standards on Plaintiffs
Plaintiffs Colorado Apartment Association (“CAA”), Apartment Association of
Metro Denver (“AAMD”), the Colorado Hotel and Lodging Association, Inc. (“CHLA”), and
the NAIOP Colorado Chapter (“NAIOP Colorado”) are four nonprofit corporations who
allege their members own covered buildings that are, and plan to construct new buildings
that will be, subject to both the state and city regulations.
CAA is a Colorado is a trade association representing the multifamily housing
industry, including owners, developers, management companies, and vendors. ECF No.
1, ¶ 17. CAA represents over 3,600 members who own and manage over 350,000
apartments. Id. AAMD is an association of local apartment building owners that promotes
the multifamily rental housing industry in the Denver metropolitan area, including seeking
improvements in the techniques of ownership and management. Id. ¶ 18. CHLA is a
professional trade association that promotes the hotel and lodging industry in Colorado
and advocates on behalf of its members. Id. ¶ 19. NAIOP Colorado is a commercial real
estate development association that promotes and advocates on behalf of its commercial
real estate industry members in Colorado.
Plaintiffs allege that the building performance standards in both Regulation 28 and
Energize Denver “effectively require and force Covered Building owners to replace
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existing Covered Products (or in the context of new construction to choose Covered
Products) that exceed current federal energy efficiency standards under the EPCA.” ECF
No. 1, ¶ 5. Plaintiffs allege their members have “already completed preliminary energy
audits that determined that their Covered Buildings cannot meet either regulation’s
building performance standards without replacing the fossil-fueled, EPCA regulated
Covered Products in their existing buildings with elective Covered Products that exceed
EPCA standards, and determined that replacement of the Covered Products will require
the removal and replacement of the buildings’ energy systems.” Id. ¶ 8. Thus, they argue
Regulation 28 and Energize Denver regulate the energy efficiency of Covered Products
that are subject to regulation under, and are therefore preempted by, the EPCA. Id. ¶ 6.
State Defendants, Denver Defendants, and Intervenor-Defendants each filed
separate Motions to Dismiss. State Defendants argue Plaintiffs’ claims against them
should be dismissed for lack of standing and because their claims are not ripe. ECF No.
23. Denver Defendants also argue that Plaintiffs lack standing to bring the claims against
them, Plaintiffs have failed to state a claim upon which relief can be granted, and Plaintiffs’
claims are barred by the statute of limitations. ECF No. 24. Finally, Intervenor-Defendants
argue for dismissal because Plaintiffs’ claims are barred by the statute of limitations. ECF
No. 30. Each of the motions are fully briefed and ripe for review.
II. 	LEGAL STANDARD
A. 	12(b)(1)
“To survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th
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1093, 1108 (10th Cir. 2023). “The party invoking federal jurisdiction has the burden to
establish that it is proper, and there is a presumption against its existence.” Salzer v. SSM
Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014) (internal quotation marks
omitted).
A Rule 12(b)(1) challenge may take two different forms. “The moving party may (1)
facially attack the complaint’s allegations as to the existence of subject matter jurisdiction,
or (2) go beyond allegations contained in the complaint by presenting evidence to
challenge the factual basis upon which subject matter jurisdiction rests.” Maestas v.
Lujan, 351 F.3d 1001, 1013 (10th Cir. 2013). “When resolving a facial attack on the
allegations of subject matter jurisdiction, a court must accept the allegations in the
complaint as true.” Graff v. Aberdeen Enters., II, Inc., 65 F.4th 500, 507 (10th Cir. 2023)
(citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). “When the moving
party attacks the factual basis for subject matter jurisdiction, on the other hand, a court
‘may not presume the truthfulness of the factual allegations in the complaint, but may
consider evidence to resolve disputed jurisdictional facts.’ ” Id. (quoting SK Fin. SA v. La
Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1275 (10th Cir. 1997)). In such cases,
a court may consider affidavits or other documents to resolve the jurisdictional question.
Id. (citing Holt, 46 F.3d at 1003).
B. 	12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss
a complaint for “failure to state a claim upon which relief can be granted.” In deciding a
motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual
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allegations . . . and view these allegations in the light most favorable to the plaintiff.”
Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (internal citations omitted).
But the Court is not “bound to accept as true a legal conclusion couched as a factual
allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Id. at 678 (internal quotation marks omitted). Plausibility, in
the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Granting a motion to dismiss “is a harsh remedy which must be cautiously
studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect
the interests of justice.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009) (quotation omitted). As a result, “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and that recovery is
very remote and unlikely.” Id. (quoting Twombly, 550 U.S. at 556 (internal quotation
omitted)).
III. 	ANALYSIS
Plaintiffs do not allege that Regulation 28 or Energize Denver directly regulate the
energy efficiency or energy use of Covered Products. Rather, they argue that both
Regulation 28 and Energize Denver “effectively” regulate Covered Products, because the
only way to comply with the regulations is to replace Covered Products in their buildings
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with products exceeding DOE’s energy efficiency standards. Thus, at the heart of this
lawsuit is the question—as yet unanswered in the Tenth Circuit—of whether Congress
intended the EPCA to preempt state and local regulation of EUI and GHG emissions that
address the energy use and GHG emissions of buildings as a whole, even if they do not
specifically regulate Covered Products. Before tackling the merits, the Court must
determine whether it has subject matter jurisdiction over this matter.
A. 	Standing
As a threshold matter, State and Denver Defendants argue Plaintiffs lack standing
to challenge Regulation 28 and Energize Denver. Article III standing is a “bedrock
constitutional requirement.” Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S.
367, 378, 144 S.Ct. 1540 (2024) (quoting United States v. Texas, 599 U.S. 670,675, 143
S.Ct. 1964, 216 L.Ed.2d 624 (2023)). Article III of the Constitution limits the federal courts’
jurisdiction to “Cases” and “Controversies.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337,
136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). Because Article III standing is an issue of a
court’s jurisdiction, a court must first satisfy itself that it exists. Kerr, 20 F.4th at 692.
Organizations, like Plaintiffs, have standing to bring suit on behalf of their members if (1)
at least one of its members would have standing to sue in the member’s own right; (2) the
interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted
nor the relief requested requires the member to participate in the lawsuit. See Friends of
the Earth v. Laidlaw, 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
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1. 	Standing to Challenge Regulation 28
State Defendants argue Plaintiffs lack organizational standing for their claims
challenging Regulation 28 because (1) they fail to establish that any of their members
would have standing to challenge Regulation 28 and (2) they lack prudential standing
because the unique compliance obligations of each State Covered Building owner require
participation in the lawsuit of specific building owners who allege injury.
To satisfy the first element of organizational standing, Plaintiffs must demonstrate
that (1) at least one of their members has suffered or will imminently suffer an injury in
fact to a legally protected interest, (2) a causal connection between State Defendants’
challenged conduct and their members’ alleged injury, and (3) a likelihood that a favorable
decision will redress the alleged injury. Friends of the Earth, Inc. v. Laidlaw, 528 U.S. at
180–81. The alleged injury must be “concrete and particularized,” and “actual or
imminent, not conjectural or hypothetical.” Id. To establish causation, the injury must be
“fairly traceable to the challenged action of the defendant.” Utah Physicians for a Healthy
Env’t v. Diesel Power Gear, LLC, 21 F.4th 1229, 1241 (10th Cir. 2021) (quoting Friends
of the Earth, 528 U.S. at 180–81). To be redressable, “it must be ‘likely,’ as opposed to
merely ‘speculative,’” that the alleged injury will be “redressed by a favorable decision.”
Lujan, 504 U.S. at 561 (citations omitted).
Here, State Defendants argue that Plaintiffs have not shown that at least one of
their members has suffered or will imminently suffer a concrete, particularized injury in
fact to a legally protected interest. For an injury to be concrete, “it must actually exist.”
Spokeo, 578 U.S. 338. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a
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personal and individual way.’ ” Id. (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130).
And for an injury to be imminent, it “must be ‘certainly impending.’ ” COPE v. Kan. State
Bd. of Educ., 821 F.3d 1215, 1222 (10th Cir. 2016) (quoting Clapper v. Amnesty Int’l USA,
568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013)). “At the pleading stage,
general factual allegations of injury resulting from the defendant’s conduct may suffice.”
Lujan, 504 U.S. at 561, 112 S.Ct. 2130. “However, ‘[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.’ ” COPE,
821 F.3d at 1221 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
Plaintiffs’ claims against State Defendants assert that Regulation 28 is preempted
by the EPCA. To come within the scope of the EPCA’s preemption provision, Regulation
28 must include regulations “concerning” the “energy efficiency” or “energy use” of a
Covered Product. See 42 U.S.C. § 6297(c). Plaintiffs do not allege that Regulation 28
explicitly regulates the energy efficiency or usage of any Covered Products. Rather, they
allege that Regulation 28 “effectively and de facto prohibit[s] the use of natural gas
appliances in existing and new buildings by setting the energy conservation standards so
stringent as to provide Covered Building owners with no effective choice in reducing their
energy consumption or greenhouse gas emissions other than to install electric Covered
Products that exceed federal DOE standards.” ECF No. 1 ¶ 109. In support, Plaintiffs
allege that their members “have determined that the only way to meet the prescriptive
building performance standards in Regulation 28 is to replace EPCA-regulated Covered
Products in their buildings with Covered Products exceeding federal DOE energy
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efficiency standards.” Id. ¶ 119. They claim that “there is no combination of non-EPCA
Covered Products replacements . . . that will allow a Covered Building to meet the building
performance standards of Regulation 28 – only replacement of EPCA-regulated Covered
Products with products that exceed federal DOE energy efficiency standards can achieve
the building performance standards of Regulation 28.” Id.
The problem for Plaintiffs is that beyond these conclusory statements, they have
failed to allege a non-speculative injury caused by Regulation 28. Plaintiffs’ claims that
Regulation 28 are preempted hinge on the allegation that Regulation 28 “effectively”
requires Plaintiffs’ members to replace and install Covered Products that exceed DOE
efficiency standards. This amounts to a conclusory allegation of Plaintiffs’ preemption
claim and speculation as what is required to comply with Regulation 28. Plaintiffs have
not alleged that Regulation 28 regulates any specific Covered Products, let alone which
Covered Products must exceed which DOE efficiency standards in order to comply with
Regulation 28.
While the Complaint and declarations allege that some of Plaintiffs’ members have
evaluated and concluded that their buildings are not in compliance with Regulation 28,
they do not allege how they determined that the only way to comply is to install Covered
Products that exceed DOE efficiency standards. Indeed, Plaintiffs concede there are
multiple compliance pathways for Regulation 28, but neither the Complaint nor the
Declarations identify the chosen compliance pathways for any individual building. And
aside from speculating as to potential future costs, Plaintiffs’ members do not allege they
have spent any costs replacing any of their existing Covered Products with those that
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exceed the DOE efficiency standards. At most, one building owner attests that he
“anticipates” that he will need to change out HVAC and/or water heating systems, but he
does not state that the need to change out such equipment would require replacing
existing equipment with an HVAC or water heating system that exceeds the DOE
efficiency standards. ECF No. 1-8 ¶ 15. In fact, he states only that he must “immediately
begin” to identify available options to achieve the building performance standards” and
“begin the planning process for making material modifications to the [building] to
implement the chosen options.” Id. ¶ 14. Based on these allegations, any injury related to
the need to replace Covered Products with those that exceed DOE efficiency standards
is wholly speculative. See Clapper, 69 U.S. at 409 (“ ‘Allegations of possible future injury’
are not sufficient.”) (quoting Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109
L.Ed.2d 135 (1990)). Without any specific allegations as to what provisions or compliance
pathways of Regulation 28 regulate Covered Products or any allegations as to what
specific Covered Products must be replaced with Covered Products that exceed the
DOE’s efficiency standards in order to comply with Regulation 28, Plaintiffs have not
sufficiently alleged that this injury is “certainly impending.” Thus, Plaintiffs have failed to
show that at least one of their members will suffer an injury in fact.
To the extent Plaintiffs have alleged that their members have suffered injuries in
the form of costs associated with energy audits and benchmarking requirements, these
costs are not causally connected to the challenged portion of Regulation 28. Plaintiffs do
not allege that audits or benchmarking requirements are preempted by the EPCA. In any
case, the requirement to evaluate a building’s energy usage derives from C.R.S. § 25-7-
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142(3) 	and 	Regulation 	28’s 	Benchmarking 	Requirements—not 	the 	challenged
Performance Standards. See California v. Texas, 593 U.S. 659, 678-79 (2021) (holding
that states lacked standing to challenge provision of the Affordable Care Act requiring
minimum 	insurance 	coverage 	because 	their 	alleged 	injuries 	were 	caused 	by 	an
unchallenged portion of the Affordable Care Act and were not fairly traceable to the
challenged provision). Owners of Covered Buildings need to determine how to comply
with Regulation 28 regardless of which compliance pathway they choose. In other words,
the need to conduct energy audits or engineering analyses is not fairly traceable to the
alleged injury—the need to replace Covered Products. The costs associated with
evaluating their energy usage are distinct from any alleged required replacement of
Covered Products and therefore not a basis for standing.
2. 	Standing to Challenge Energize Denver
For similar reasons, Plaintiffs lack organizational standing to challenge Energize
Denver. Thus, their third and fourth claims for relief against the Denver Defendants must
also be dismissed for lack of standing.
As with the challenge to Regulation 28, Plaintiffs make only the conclusory
allegation that Energize Denver is preempted by the EPCA because it “effectively”
requires Plaintiffs’ members to choose Covered Products that exceed the DOE’s
efficiency standards. But absent from the complaint and declarations are any specific
allegations as to what provisions of Energize Denver regulate Covered Products, which
of Plaintiffs’ members has determined that they must replace existing Covered Products
with Covered Products that exceed the DOE efficiency standards, how they reached this
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determination, or which specific Covered Products that exceed DOE efficiency standards
must be installed in new buildings or replaced in existing buildings. They also have not
alleged that any costs have been incurred to replace Covered Products or that any of
Covered Products have been replaced. Put simply, Plaintiffs allege that complying with
Energize Denver may require them to make building modifications to reduce the entire
building’s EUI, but fail to allege that any provision of Energize Denver directly concerns
specific Covered Products or attempts to regulate the energy use or efficiency of such
Covered Products. Moreover, several of the declarations concede that their buildings are
already compliant with Energize Denver without requiring changes—suggesting that
Energize Denver does not regulate or require the replacement or installation of Covered
Products that exceed the DOE efficiency standards. See ECF Nos. 1-2 ¶¶ 8, 14; 1-3 ¶¶
8, 14; 1-4 ¶¶ 8, 9, 14.
Because the Court concludes that Plaintiffs’ allegations fail to establish that any of
their members have Article III standing for their claims, the Court does not reach the
remaining arguments for dismissal. See Colorado Outfitters Ass’n v. Hickenlooper, 823
F.3d 537, 543 (10th Cir. 2016) (court must resolve issues of standing before it may reach
the merits of an issue).
IV. 	CONCLUSION
For the reasons stated above, State Defendants’ Partial Motion to Dismiss, ECF
No. 23, and Denver Defendants’ Motion to Dismiss, ECF No. 24, are GRANTED.
Intervenor-Defendants’ Motion to Dismiss, ECF No. 30, and Intervenor-Defendants’
Motion for Judicial Notice, ECF No. 31, are DENIED AS MOOT. Plaintiffs’ claims are
Case No. 1:24-cv-01093-RMR-KAS Document 55 filed 03/28/25 USDC Colorado
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DISMISSED WITHOUT PREJUDICE. Plaintiffs shall have twenty-one (21) days from the
date of this Order to file a motion for leave to amend, together with a proposed amended
complaint.
DATED: March 28, 2025
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
Case No. 1:24-cv-01093-RMR-KAS Document 55 filed 03/28/25 USDC Colorado
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