Sierra Club v. Sevier Power Co.

2006 UT 74
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah Chapter of the Sierra Club, 	No. 20050455
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 Sevier 	F I L E D
Power Company,
Respondents. 	November 21, 2006
---
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,
Fred W. Finlinson, Saratoga Springs, 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 Sevier Power Company authorizing
the construction and operation of a 270-megawatt coal-fired power
plant in Sevier 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. 	In so concluding, we take the opportunity to reiterate
and clarify Utah’s standing law.

1 A third party, Pacificorp, also petitioned to intervene.
Pacificorp is not a party to the current proceeding. 	Therefore,
we do not address its petition.
No. 20050455 	2
BACKGROUND
¶2 	On October 12, 2004, the Executive Secretary of the
Division of Air Quality signed an approval order (the order)
granting a permit to the Sevier Power Company to construct and
operate a 270-megawatt coal-fired power plant (the plant) near
Sigurd, in Sevier County, Utah. 	Sigurd is located near the
Colorado Plateau, an area known for stunning geography and
outdoor recreational sites such as Boulder Mountain and Capitol
Reef National Park.
¶3 	After the Executive Secretary signed the order, two
parties sought to intervene. 1 	On November 1, 2004, the Sevier
County Citizens for Clean Air and Water (the Citizens’ Group)
filed a Request for Agency Action with the Board. 	The Utah
Chapter of the Sierra Club and the Grand Canyon Trust
(collectively, the Sierra Club) followed on November 12, 2004, by
filing a separate Request for Agency Action. 	The Sierra Club
sought review of the order, claiming that the Executive
Secretary’s approval of the 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
request asked the Board to declare the order illegal, revoke the
order, and alternatively or additionally remand the order to the
Utah Division of Air Quality with instructions that the agency
undertake the proper analysis and comply with all applicable
laws. 	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). 	In support of its Statement of Standing,
the Sierra Club filed the affidavits of Brian Cass, Cindy
Ciciliano Roberts, and Howard Cherry, persons belonging to either
the Sierra Club or the Grand Canyon Trust.
¶4 	Mr. Cass, a member of the Grand Canyon Trust, is an
Arizona resident who owns property and a home in Boulder, Utah,
which is located to the southeast of Sigurd. 	Mr. Cass is a
videographer who has filmed and produced documentaries on the
Colorado Plateau. 	Additionally, he uses the Colorado Plateau for
recreation. 	In his affidavit, Mr. Cass alleges the plant will

3 	No. 20050455
emit pollutants that will impair visibility around his home and
on the Colorado Plateau and that this decreased visibility will
affect his livelihood as a videographer. 	Moreover, Mr. Cass
states that the emissions from the plant will contribute to
global warming and climate change, which will further adversely
impact the Colorado Plateau’s ecosystem. 	His affidavit also
alleges that, if approved, the plant’s emissions will impair his
health and his family’s health and decrease the value of his
property.
¶5 	Ms. Roberts lives in Sigurd and is a member of the
Sierra Club. 	She also belongs to the Citizens’ Group. 	Ms.
Roberts and her husband live on a 25-acre farm that is located
less than one mile from the proposed site. 	They also farm an
additional 328 acres, 133 of which they own and 195 of which they
lease, approximately four miles from the proposed site. 	In
addition, Ms. Roberts and her family use the Sigurd area for
recreational activities, including birdwatching and fishing. 	Ms.
Roberts’ affidavit claims that if the plant is approved she will
suffer injury because the plant will emit pollutants that will
contaminate the soil and damage her crops, thereby jeopardizing
her livelihood. 	Likewise, she argues that the plant’s emissions
will contaminate the waterways that she and her family use to
irrigate the crops they later eat. 	Ms. Roberts also asserts that
the emissions from the plant’s construction and operation will
negatively affect her health as well as the health of her
children and neighbors. 	She believes that if built, the plant’s
emissions will diminish visibility in the area, increase the
number of pollution-related inversions, and decrease her property
values.
¶6 	Finally, Mr. Cherry resides in Sevier County and is a
member of the Sierra Club. 	His current home is about eight miles
from the proposed plant site, and he regularly travels to Sigurd.
Mr. Cherry’s affidavit states that he is concerned that the
plant’s emissions will cause adverse health effects, including an
increase in heart and lung problems. 	He also maintains that the
plant will increase the severity of the area’s inversions. 	For
the most part, Mr. Cherry expresses general concerns about the
adverse health effects and the inversions. 	He does allege one
specific injury, however, claiming that “[he] will be adversely
affected by the proposed power plant because visibility will
deteriorate in the area.”
¶7 	On April 13, 2005, the Board held a hearing to
determine whether the Citizens’ Group and the Sierra Club had
standing to intervene. 	The Board granted the Citizens’ Group’s

No. 20050455 	4
petition, finding the Citizen’s Group was “the most appropriate
entity to bring the action” and that it had alleged “a distinct
and palpable injury” resulting from the order. 	However, the
Board denied the Sierra Club’s petition. 	According to the Board,
the Sierra Club had not demonstrated a distinct and palpable
injury because its members’ allegations of adverse public health
effects, decreased visibility, and environmental harms were too
general, the Sierra Club did not proffer any evidence that the
alleged adverse impacts were caused by the order, and the
affidavits did not demonstrate a connection between the alleged
improper permit and a particular injury to the three affiants.
Moreover, the Board found that the Sierra Club was not the most
appropriate party and held that the issues were not a “matter of
significant public importance that would warrant granting the
petition to intervene.”
¶8 	Following the Board’s denial, the Sierra Club filed a
Petition for Review with the Utah Court of Appeals, seeking
review of the Board’s decision to deny standing. 	The court of
appeals certified the question of the Sierra Club’s standing to
this court pursuant to Utah Code section 78-2a-3(3) (2002). 	We
have jurisdiction under Utah Code section 78-2-2(3)(b) (2002).
STANDARD OF REVIEW
¶9 	The Utah Administrative Procedures Act (the Act)
governs our review of a state administrative agency’s decision.
Utah Code Ann. §§ 63-46b-.05 to -23 (2004 & Supp. 2005). 	Where,
as in this case, a party is seeking review of a formal agency
action, Utah Code section 63-46b-16 supplies the applicable
standards of review. 	Id. § 63-46b-16 (2004). 	When reviewing
formal agency decisions, we apply differing standards of review
depending on the type of question before us. 	WWC Holding Co. v.
Pub. Serv. Comm’n, 2002 UT 23, ¶ 7, 44 P.3d 714 (citing Utah Code
Ann. § 63-46b-16(4)). 	Under the Act, we review factual findings
for “substantial evidence”; in other words, we affirm an agency’s
findings of fact where they are “supported by substantial
evidence when viewed in light of the whole record before the
court.” 	Utah Code Ann. § 63-46b-16(4)(g). 	We review questions
of law for correctness, id. § 63-46b-16(4)(d), granting little or
no deference to the agency’s determination, Esquivel v. Labor
Comm’n, 2000 UT 66, ¶ 13, 7 P.3d 777. 	Finally, when we review
questions of
“ultimate fact, mixed findings of fact and
law, and [the agency’s] interpretation of the
operative provisions of statutory law it is

2 Associated General Contractors addressed judicial review
of an agency’s action in its rule-making capacity. 	2001 UT 112,
¶ 1. 	Nevertheless, like the agency action before us in this
case, Associated General Contractors involved review of a formal
agency action and was thus governed by Utah Code section 63-46b-
16. 	Section 63-46b-16 governs the standard of review for all
formal agency actions and does not distinguish between an
agency’s actions in its rule-making and decision-making capacity.
Therefore, the Associated General Contractors’ definition applies
to the case before us.
5 	No. 20050455
empowered to administer, [agency] findings
must be rationally based and are set aside
only if they are imposed arbitrarily and
capriciously or are beyond the tolerable
limits of reason.”
Assoc. Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112,
¶ 18, 38 P.3d 291, (alterations in original) (quoting Williams v.
Pub. Serv. Comm’n, 754 P.2d 41, 50 (Utah 1988)).
¶10 	In the case before us, the parties disagree over
whether standing is a question of law or a mixed question of law
and fact. 	We elaborated upon the differences between questions
of law and mixed questions in the administrative law context in
Associated General Contractors,2 2001 UT 112, ¶ 18. 	There we
explained that
general questions of law include
constitutional questions, rulings concerning
an agency’s jurisdiction or authority,
interpretations of common law principles, and
interpretations of statutes unrelated to the
agency. 	Conversely, instances involving
ultimate facts, mixed findings of fact and
law, and [an agency’s] interpretation of the
. . . statutory law it is empowered to
administer are limited to situations where
the agency has been granted explicit or
implicit discretion under the statute, where
the agency possesses expertise concerning the
operative provisions at issue, or where the
agency is otherwise in a better position than
the courts to assess the law due to its
experience with the relevant subject matter.

No. 20050455 	6
Id. (alterations in original) (citations and internal quotation
marks omitted).
¶11 	In order to resolve whether standing is a question of
law or a mixed question of law and fact in the administrative law
context, we turn to the nature of the standing requirement.
Standing is a concept “rooted in the historical and
constitutional role of the judiciary” as one of three separate
and equal branches of government. 	Jenkins v. Swan, 675 P.2d
1145, 1149 (Utah 1983). 	Through our case law, we have developed
the requirement that a party have standing in order “to confine
the courts to a role consistent with the separation of powers,
and to limit the jurisdiction of the courts to those disputes
which are most efficiently and effectively resolved through the
judicial process.” 	Id.
¶12 	Given that standing has evolved through our case law in
order to protect the separation of powers under the Utah
Constitution, we think that standing falls squarely within the
administrative law definition of a “general question of law,” as
discussed in Associated General Contractors, 2001 UT 112, ¶ 18.
We recognize that administrative agencies are part of the
executive branch and not the judicial branch; however, they are
vested with adjudicative functions, and the same policies that
apply to standing before the judicial branch also apply to
controversies before administrative agencies. 	Indeed, the Utah
Administrative Code requires that a party have standing and
defers to our case law on that subject. 	See Utah Admin. Code r.
307-103-6(3) (2006) (“No person may initiate or intervene in any
agency action unless that person has standing. 	Standing shall be
evaluated using applicable Utah case law.”). 	Thus, the fact that
the Board does not technically operate within the judicial branch
does not change our reliance on separation of powers
considerations to determine that, in the administrative context,
standing is a “general question of law.”
¶13 	However, the Board’s status as an administrative agency
rather than a lower court does influence our classification of
standing as a question of law in this case. 	In the non-
administrative law context, standing would generally be
considered a “mixed question” because it involves the application
of a legal standard to a particularized set of facts. 	For
example, when reviewing a lower court’s standing determination we
have stated that “the question of whether a given individual or
association has standing to request a particular relief is
primarily a question of law, although there may be factual
findings that bear on the issue.” 	Kearns-Tribune Corp. v.

7 	No. 20050455
Wilkinson, 946 P.2d 372, 373 (Utah 1997). 	Nevertheless, in the
administrative law context, standing is a “general question of
law” because it is a judicial doctrine. 	As a court, we are in a
better position than an agency to determine whether this doctrine
has been properly interpreted and applied, just as we are in a
better position to review questions of constitutional and
statutory interpretation. 	Moreover, the policy underlying the
correctness standard of review for interpretation of
constitutional, statutory, and common law issues applies equally
to standing. 	The reason courts review an administrative agency’s
decisions of general law for correctness is “to ensure that [the
law] is uniform throughout the jurisdiction.” 	Esquivel, 2000 UT
66, ¶ 13 (citations and internal quotation marks omitted).
Considering that standing triggers the court’s, or the agency’s,
subject matter jurisdiction, we think it highly important that
standing law be uniform throughout all Utah courts and agencies
and therefore conclude that for the purposes of reviewing agency
decisions, it is a “general question of law.”
¶14 	We find further support for our conclusion that
standing is a general question of law in that standing does not
fit within the administrative law definition of mixed questions
of law and fact as set forth in Associated General Contractors,
2001 UT 112, ¶ 18. 	The Board does not have either explicit or
implicit authority over standing issues pursuant to its enabling
statute. 	See Utah Code Ann. §§ 19-2-104 (2003) (listing powers
of the Air Quality Board with no mention of standing). 	While the
Board does have the power to “hold hearings,” id. § 19-2-
104(3)(a), “enforce [its] orders by appropriate administrative
and judicial proceedings, and institute judicial proceedings to
secure compliance,” id. § 19-2-104(3)(b), these provisions do not
give it implicit authority to develop standing principles because
standing is not within the Board’s area of expertise. 	That the
Board has been assigned some adjudicative functions does not
implicitly give it any particular authority to interpret standing
doctrine or other issues of general statutory, constitutional, or
common law. 	Likewise, the Board is not “otherwise in a better
position than the courts to assess the law due to its experience
with the relevant subject matter.” 	Assoc. Gen. Contractors, 2001
UT 112, ¶ 18. 	The courts have extensive experience when it comes
to standing issues and are in a better position to correctly and
uniformly apply Utah law.
¶15 	We therefore conclude that standing is a question of
law under the Act, and we review the Board’s determination that
the Sierra Club did not have standing for correctness, granting
the Board’s decision no deference. 	Regardless of the applicable

No. 20050455 	8
standard of review, however, this court may grant relief only if
it determines that the “person seeking judicial review has been
substantially prejudiced” by the agency’s decision. 	Utah Code
Ann. § 63-46b-16(4). 	“A party has been substantially prejudiced
if ‘the alleged error was not harmless.’” WWC Holding Co., 2002
UT 23, ¶ 7 (citing Mountain Fuel Supply Co. v. Pub. Serv. Comm’n,
861 P.2d 414, 423 (Utah 1993)).
¶16 	Having established the relevant standard of review
under the Act, we now turn to whether the Board erred in
determining that Sierra Club does not have standing to challenge
the order.
ANALYSIS
¶17 	Utah standing law “operates as gatekeeper to the
courthouse, allowing in only those cases that are fit for
judicial resolution.” 	Terracor v. Utah Bd. of State Lands &
Forestry, 716 P.2d 796, 798-99 (Utah 1986). 	By doing so, it
ensures “that courts confine themselves to [the] resolution of
those disputes most effectively resolved through the judicial
process.” 	Id. at 799. 	This limits judicial power and prevents
the “significant inroad on the representative form of government”
that would occur if courts cast themselves “in the role of
supervising the coordinate branches of government” or as “an open
forum for the resolution of political and ideological disputes
about the performance of government.” 	Id. (citations and
internal quotation marks omitted).
¶18 	The preeminent case on Utah standing law is Jenkins v.
Swan, 675 P.2d 1145 (Utah 1983). 	In that case, we recognized
that there are two means by which a party can establish standing
--the traditional test and an alternative test. 	Id. at 1150-51.
Since we first issued Jenkins, however, our treatment of standing
principles has become somewhat convoluted, leading to occasional
missteps in their application. 	Thus, we address whether the
Sierra Club has standing under both tests and, in doing so,
attempt to clarify the application of the standing principles
first articulated in Jenkins.
I. 	THE TRADITIONAL TEST
¶19 	The first test we articulated in Jenkins v. Swan, 675
P.2d 1145, 1150 (Utah 1983), addresses the “traditional criteria”
for standing. 	The traditional test is often referred to as the
“distinct and palpable injury” requirement because the
petitioning party must allege that it has suffered or will

9 	No. 20050455
“suffer[] some distinct and palpable injury that gives [it] a
personal stake in the outcome of the legal dispute.” 	Id. at
1148. 	When determining whether a party has suffered a distinct
and palpable injury, we engage in a three-step inquiry. 	See id.
at 1150. 	First, the party must assert that it has been or will
be “adversely affected by the [challenged] actions.” 	Id.
Second, the party must allege a causal relationship “between the
injury to the party, the [challenged] actions and the relief
requested.” 	Id. 	Third, the relief requested must be
“substantially likely to redress the injury claimed.” 	Id. at
1149. 	If the party can satisfy these three criteria, the party
has standing to pursue its claims before the courts of this
state.
¶20 	The traditional test addresses whether the party has “a
real and personal interest in the dispute.” 	Id. at 1150. 	A
party who satisfies all three of the traditional criteria will
have the incentive to “fully develop[] all the material factual
and legal issues in an effort to convince the court that the
relief requested will redress the claimed injury.” 	Id. 	Thus,
the traditional standing test helps confine the courts’
jurisdiction to cases appropriately resolved through the
adversarial judicial process.
¶21 	In this case, we must 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
necessary to the resolution of the case. 	Utah Rest. Assoc. v.
Davis County Bd. of Health, 709 P.2d 1159, 1163 (Utah 1985).
Thus, to determine whether the Sierra Club has standing, we must
assess whether its individual members have standing to challenge
the order under the traditional test. 	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.
¶22 	Two of the Sierra Club’s affiants, Mr. Cass and Ms.
Roberts, have satisfied the first inquiry of the traditional
test because they have alleged that the order approving the plant
adversely affects them. 	Both Mr. Cass and Ms. Roberts claim
that, once built, the plant will adversely impact their
livelihoods. 	Mr. Cass argues the decreased visibility will
impair his ability to film the Colorado Plateau, while Ms.
Roberts maintains the pollution will damage the soil and, in
turn, her crops. 	Both also allege that the pollutants emitted by

No. 20050455 	10
the plant will harm their health and their families’ health,
devalue their property, and detrimentally impact the ecosystem of
the Colorado Plateau, which they use for recreational activities.
¶23 	These alleged adverse effects are sufficiently
particularized to give Mr. Cass and Ms. Roberts a personal stake
in the outcome of the dispute. 	Mr. Cass’ and Ms. Roberts’
allegations that the plant operations will damage their
livelihoods are not generalized to everyone in the area; these
potential injuries affect only those who rely on the area and its
environmental quality to make a living. 	The injuries Mr. Cass
may suffer as a videographer and Ms. Roberts may suffer as a
farmer are separate and distinct from the potential injuries to
other persons who either live in Sigurd or recreate around the
Colorado Plateau and are not videographers or farmers.
¶24 	We conclude, furthermore, that Mr. Cass and Ms. Roberts
have identified sufficient adverse effects even without the
allegations that the plant will affect their economic
livelihoods. 	By claiming injuries to their health, property, and
recreational activities, they have shown that they have a
particularized stake in the outcome of the dispute. 	While these
concerns may be shared by many who live in Sigurd or who
participate in recreational activities around the Colorado
Plateau, Mr. Cass and Ms. Roberts 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. 	In other words, they are alleging private,
rather than public, injuries. 	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
Mr. Cass and Ms. Roberts.
¶25 	We recognize that in some settings this court has been
hesitant to address injuries shared by too many members of the
public. 	In Society of Professional Journalists v. Bullock, 743
P.2d 1166, 1174 (Utah 1987), we explained that this hesitancy is
“rooted in concerns about courts deciding matters that are not
properly reduced to a concrete dispute . . . and in concerns
about considering matters better dealt with by another branch of
government.” 	Recognizing that these underlying policies would
not be offended, we relaxed our standing requirement in Society
of Professional Journalists and held that anyone who claimed,
attempted to exercise, and was denied a right of access to a
judicial proceeding had suffered an adequate adverse impact to
satisfy the standing requirement even though the adverse impact
was shared by all members of that class. 	Id. 	In so holding, we

11 	No. 20050455
reiterated that “‘[i]t is difficult to make useful, all inclusive
generalizations that determine whether standing exists in any
given case, since the issue often depends on the facts of each
case.’” 	Id. (quoting Terracor v. Utah Bd. of State Lands &
Forestry, 716 P.2d 796, 799 (Utah 1986)). 	Thus, our holding in
Society of Professional Journalists recognizes that there may be
cases where it is appropriate to grant standing to persons who
share the same or similar grievances as other individuals or
groups.
¶26 	The present case falls within this category. 	As in
Society of Professional Journalists, none of the policies that
have given rise to this court’s past hesitancy to address
injuries shared by all members of the general public would be
offended by holding that Mr. Cass and Ms. Roberts, and in turn
the Sierra Club, have standing. 	The issue is whether the
Executive Secretary complied with various state and federal laws
in granting the permit for the plant. 	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. 	While some of the injuries Mr.
Cass and Ms. Roberts allege are shared by others who live and
recreate near Sigurd, Mr. Cass and Ms. Roberts do have a direct
interest in the dispute as their livelihood, health, and property
values are at stake. 	Moreover, there is no concern about courts,
or the Board, resolving questions that are best left to the other
branches of government. 	In this case, 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). 	Mr. Cass and Ms. Roberts, through the
Sierra Club, are merely asking that they be given the opportunity
to ensure that the Executive Secretary comply with and the Board
enforce these laws. 	We therefore hold that even though there are
others who have the same grievances as Mr. Cass and Ms. Roberts,
the potential injuries raised by Mr. Cass and Ms. Roberts are
sufficient to satisfy the “adverse effects” requirement under the
traditional standing test.
¶27 	While Mr. Cass and Ms. Roberts have adequately alleged
that they will be adversely affected by the order, it is
questionable whether the Sierra Club’s third affiant, Mr. Cherry,
has asserted a sufficiently particularized injury. 	His affidavit
expresses general concerns about the plant with the exception of
his allegation that he will be adversely affected by the

3 Generally, the determination of whether a plaintiff has
alleged a sufficient interest in order to satisfy the adverse
impact part of the traditional test can be made on the face of
the pleadings. 	However, some cases require more extensive fact-
finding in order to assess whether the plaintiff’s interest in
the dispute is sufficient to give rise to an adverse impact. 	For
example, in Washington County Water Conservancy District v.
Morgan, 2003 UT 58, 82 P.3d 1125, the plaintiff alleged that its
water use would be adversely affected by the approval of the
defendant’s application “to alter the nature, place of use, and
points of diversion” of its water right. 	Id. ¶¶ 2, 19. 	Because
the plaintiff’s interest in the dispute depended upon whether the
(continued...)
No. 20050455 	12
deterioration of visibility. 	Expressions of concern, without a
claim of actual or potential injury to the party, are too
generalized to qualify as a distinct and palpable injury under
the traditional criteria. 	Mr. Cherry’s general affidavit does
not defeat the Sierra Club’s standing, however; it is enough that
two of the Sierra Club’s members can establish a particularized
stake in the outcome of the dispute. 	Because his affidavit is
not essential to the Sierra Club’s standing, we need not
determine whether his concerns about decreased visibility,
considered alone, would qualify as a sufficient adverse impact.
¶28 	Our holding that Mr. Cass and Ms. Roberts have
sufficiently asserted that the order adversely affects them does
not open the door to standing too widely, removing all practical
barriers to intervention by any third party in environmental
litigation. 	Mr. Cass and Ms. Roberts have met the adverse
effects requirement because they either live or recreate, or
both, near the site of the plant and have alleged injuries that
are particular to them, rather than expressing generalized
concerns about the plant’s impact on the public at large. 	Thus,
while Mr. Cass and Ms. Roberts have identified a particularized
injury, a Logan resident who does not have a home or recreational
interests in the area probably could not allege sufficiently
particularized adverse impacts, regardless of his or her concerns
about pollution and its potential to harm the environment and
public health. 	Such generalized interests are too attenuated to
create a sufficient personal stake in the litigation and would
not satisfy the adverse effects requirement. 	The determination
of what claimed interests are sufficient and what interests are
too attenuated must be made on a case-by-case basis, taking into
account all relevant facts and the policies underlying our
standing requirement. 3

3 (...continued)
plaintiff’s water originated from the same source as the
defendant’s water, the district court required the plaintiff to
show a “measurable connection” between its water source and the
defendant’s water source. 	Id. ¶¶ 19, 22-24. 	A trial was held to
determine whether the water sources were connected. 	Id. ¶ 19.
At trial, the plaintiff called expert witnesses and introduced
“empirical testing” evidence to show the sources were connected.
Id. ¶ 25. 	The defendant countered by calling its own expert
witnesses, who testified that the sources were not connected.
Id. 	The trial court did not find the plaintiff’s witnesses and
evidence persuasive, and held that the plaintiff did not have
standing because it could not show it had a sufficient interest
in the dispute, id.; the trial court therefore did not need to
consider causation and redressability.
This court affirmed the trial court, holding that
Where expert witnesses disagree and where the
party carrying the burden of establishing
standing is unable to present empirical or
measurable evidence of a direct connection
between the sources from which the parties
have rights to draw water, we cannot conclude
that the trial court erred in finding the
evidence inconclusive.
Id.
We note that while extensive fact-finding was required to
determine the plaintiff’s interest in Washington County, such
cases are rare, and we do not believe this type of fact-finding
is required to assess the affiants’ interests in the case before
us.
13 	No. 20050455
¶29 	Before considering whether the Sierra Club has
satisfied the causation and redressability requirements, we wish
to comment briefly on the Board’s decision to deny standing to
the Sierra Club but to grant it to the Citizens’ Group. 	The
Board held that, unlike the Sierra Club, the Citizens’ Group had
standing because it had alleged a sufficiently “distinct and
palpable injury.” 	Specifically, the Board stated that the
Citizens’ Group’s “[a]ffidavits and statements include not only
assertions of effect on visibility and the environment but
contain specific claims of potential for or exacerbation of
identified respiratory illnesses and other physical conditions on
members and their families who live in close proximity to the
plant.” 	We reject the suggestion that a party must identify a
risk to an existing health condition in order to have standing.

No. 20050455 	14
If the emissions from the proposed power plant have the potential
to harm the health of those persons who live in the area, we see
no reason why those residents must actually develop a health
problem before they have standing.
¶30 	We are further troubled by the implication that the
Board granted standing to the Citizens’ Group over the Sierra
Club because the Citizens’ Group pointed to identified health
concerns in addition to environmental harms. 	Standing was not
designed to provide remedies solely for potential threats to
health, but for all legally cognizable interests. 	The Sierra
Club’s affiants’ claims of adverse effects to their livelihoods
and recreation due to decreased visibility and environmental
damage are valid interests for purposes of our standing analysis,
regardless of whether they are accompanied by concerns about
health. 	See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63
(1992) (“Of course, the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a
cognizable interest for purpose of standing.”). 	We note,
however, that while recreational interests are legally cognizable
interests for purposes of our standing analysis, not all
allegations of injury to a recreational interest will
automatically qualify. 	For example, in Defenders of Wildlife,
the United States Supreme Court recognized that aesthetic
interests in wildlife are legally cognizable interests, but held
that in order for a party to assert such an interest, the party
had to show a direct and imminent injury to that interest. 	Id.
at 564. 	In that case, the affiants alleged that they had
standing to challenge the government action based on their past
visits to the endangered areas and their hope to revisit those
same areas in the future. 	Id. 	However, the Court held that the
affiants’ past visits did not give them standing, noting “[p]ast
exposure [did] not in itself show a present case or controversy
. . . if unaccompanied by any continuing, present adverse
effects.” 	Id. (citations and internal quotation marks omitted).
Likewise, the Court held that the affiants’ hopes to revisit the
areas were insufficient to show injury to a legally protected
interest because “‘some day’ intentions--without any description
of concrete plans, or indeed even any specification of when the
some day will be--do not support a finding of the ‘actual or
imminent’ injury that our cases require.” 	Id. (emphasis in
original).
¶31 	We agree that a plaintiff who alleges only past
recreational exposure to a threatened area without any concrete
plans to return to that area would not have a sufficiently
personalized stake in the dispute to challenge a proposed

4 In its Request for Agency Action, the Sierra Club
identifies the harmful pollutants the plant will emit in
violation of both state and federal law. 	Specifically, the
Sierra Club names carbon dioxide, nitrous oxide, mercury,
particulate matter, and sulfur dioxide. 	We recognize that not
all of the affiants specifically identify the pollutants.
However, we think it is adequate that the affiants allege that
the plant will emit pollutants, as they all have done. 	It is
(continued...)
15 	No. 20050455
government action in the courts. 	However, Mr. Cass and Ms.
Roberts have clearly established a legally cognizable
recreational interest in that they both own homes in the
threatened area and have demonstrated that they frequently use
and will continue to use the area for recreation. 	Moreover, in
this case, the Sierra Club’s affiants also asserted concerns
about health risks to them and their families. 	Thus, the Sierra
Club’s affiants’ claims of the plant’s adverse environmental
effects and the resulting harms to their livelihood, recreational
activities, and physical well-being satisfy the first part of our
test. 	We leave for another day the challenge of further defining
the extent of use a party must allege in order to prove that it
has a legally protected recreational interest that entitles it to
assert that interest before the courts of this state.
¶32 	Having concluded that 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 plant. 	The affiants have met that
burden. 	Because the Executive Secretary is responsible for
denying or granting permits for the construction and operation of
the plant, his decision to grant the order is directly connected
to the construction and operation of the plant and to any
resulting harms. 	Furthermore, the affidavits allege that the
greenhouse gas and other emissions from the plant will cause
various injuries, including health problems, decreased visibility
around the Colorado Plateau, soil damage, water pollution, and
property devaluation. 	Rather than raising general allegations
that the mere presence of a coal-fired power plant will cause the
alleged harms, the affidavits point to specific aspects of the
plant that will cause specific harms. 	For example, the affiants
contend that the levels of “mercury, particulate matter, sulfur
dioxide, and carbon dioxide contained in the emissions” as a
potential cause of increased health problems, decreased
visibility due to air pollution, and harm to local fish and
wildlife. 4 	Likewise, Mr. Cass, the videographer, uses his prior

4 (...continued)
appropriate for the Sierra Club, as the association representing
the affiants, to supplement the affidavits with information about
the specific pollutants, particularly considering that the Sierra
Club is in a better position to know about specific pollutants
than the average concerned citizen.
5 In the Reply of the Sierra Club and Grand Canyon Trust to
Sevier Power Company’s Opposition to the Petition for Standing,
which was filed before the Board, the Sierra Club cited specific
sources supporting its proposition that once the plant is
operational, the plant’s emissions could be the source of 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 the
Sierra Club has alleged the existence of evidence suggesting 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. 20050455 	16
experience to support his claims that the plant’s emissions will
increase pollution in and decrease visibility, specifically
stating that “[he has 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.”
While it is true the affiants have not yet had the opportunity to
present scientific evidence that proves the plant will cause the
alleged harms, they have alleged that they could prove
causation, 5 and that is all that is required at this phase.
Standing questions arise early in the litigation, usually before
discovery and the introduction of evidence. 	See Jenkins, 675
P.2d at 1150 (“[S]tanding questions are usually raised prior to
the introduction of any evidence.”). 	Thus, a plaintiff claiming
standing under the traditional criteria does not need to prove
causation to the same extent it will be required to prove it at
trial. 	Id. 	Otherwise, the investigation of standing-related

17 	No. 20050455
facts would, in many cases, supplant the trial process on the
merits of the underlying claim. 	Moreover, it would be unduly
burdensome for litigants to invest the time and money in
gathering the evidence necessary to prove their claim only to be
denied standing. 	Based on the foregoing, we believe that the
affiants have alleged plausible causation; thus, the Sierra Club
may conduct discovery and present evidence before the Board.
¶33 	Finally, the Board has the power to redress the
affiants’ injuries. 	Through the Sierra Club, the affiants have
requested that the Board declare the air emissions permit
illegal, revoke the order, and remand the matter to the Division
of Air Quality for further analysis. 	Because the Board is the
only party with the authority to grant this relief, it has the
power to redress the Sierra Club’s injury by declaring the permit
illegal or at least referring the permit to the Division of Air
Quality for further analysis to ensure that the Executive
Secretary’s order authorizing the plant’s operation complies with
state and federal law.
¶34 	We therefore conclude that, like the members of the
Citizens’ Group, the Sierra Club’s members have alleged a
distinct and palpable injury that the plant will cause and that
the Board can remedy by granting the requested relief. 	Although
the number of affected members in the Sierra Club is far smaller
than the 500 affected members of the Citizens’ Group, this does
not change the Sierra Club’s associational standing. 	An
association has standing to pursue the claims of its members,
whether it be two or five hundred; there is no threshold number
of members that an association must have as a prerequisite to
standing. 	Moreover, there is no reason the individual
participation of the Sierra Club’s members is 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 the proposed plant.
II. 	THE ALTERNATIVE TEST
¶35 	While the Sierra Club has satisfied the traditional
test and thus has standing, we hold alternatively that the Sierra
Club also has standing under the alternative standing test. 	In
Jenkins v. Swan, we recognized that a failure to satisfy the
traditional test is not necessarily fatal to a party’s ability to
assert an interest before the courts of this state. 	675 P.2d
1145, 1150 (Utah 1983). 	Rather, Jenkins provides an alternative
means by which a party can prove standing--by showing that it is

No. 20050455 	18
an appropriate party raising issues of significant public
importance. 	Id. 	We reexamine this test here.
¶36 	Under the alternative test, a petitioning party must
first establish that it is an appropriate party to raise the
issue in the dispute before the court. 	Id. 	A party meets this
burden by demonstrating that it has “the interest necessary to
effectively assist the court in developing and reviewing all
relevant legal and factual questions” and that the issues are
“unlikely to be raised” if the party is denied standing. 	Id. 	We
recognize that there is language in both Jenkins and subsequent
cases suggesting that in making this determination the court may
grant standing only to the party with the greatest interest in
the case, or in other words, the most appropriate party. 	See,
e.g., id. (“If the plaintiff does not have standing under the
first step, we will then address the question of whether there is
anyone who has a greater interest in the outcome of the case than
the plaintiff.”); Sierra Club v. Dept. of Envtl. Quality, 857
P.2d 982, 987 (Utah Ct. App. 1993) (holding the Sierra Club was
not the “most appropriate plaintiff”). 	We now conclude, however,
that the notion that a court must find the most appropriate
party, thereby limiting standing under the alternative criteria
to only one party in any given case, is unnecessary and counter-
productive. 	We think that in many cases, such as the one before
us, there will be more than one party interested in the outcome
of the case who can effectively raise issues that would otherwise
escape review. 	In such cases, the interests of justice will be
served by providing a forum where qualified interested parties
can be heard. 	Thus, a court addressing standing under the
alternative test does not need to determine which party seeking
to intervene is the most appropriate party in comparison to any
other potential party, but rather needs to determine only which
parties are, in fact, appropriate parties to a full and fair
litigation of the dispute in question.
¶37 	Recognizing that more than one party may be appropriate
in a given case is consistent with the reason we provide an
alternative path to standing--to ensure that relevant issues are
raised by a party who can effectively address them. 	Limiting the
ability to claim alternative criteria standing to one party in
any given case will inevitably mean that some issues will not be
addressed because each party competing for the coveted “most
appropriate” status will raise its own distinct issues.
Likewise, even where competing parties raise similar issues, no
two parties will present them identically.

19 	No. 20050455
¶38 	Allowing multiple parties to establish standing under
the appropriate party test should not necessarily result in the
intervention of every party asserting any interest. 	Parties
hoping to intervene must still show “a real and personal interest
in the dispute.” 	675 P.2d at 1150. 	Moreover, where multiple
intervenors raise identical or similar issues, the judge or
administrative board has the discretion to require the parties to
collaborate on their briefing so as to protect the court or
administrative board from being overwhelmed by duplicative
filings.
¶39 	In addition, an appropriate party must still satisfy
the second part of the alternative test before we will grant
standing. 	Once a party has established that it is an appropriate
party to the litigation, it must also demonstrate that the issues
it seeks to raise “are of sufficient public importance in and of
themselves” to warrant granting the party standing. 	Id. 	This
requires the court to 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 pursuant to the
political process. 	Id. 	The more generalized the issues, the
more likely they ought to be resolved in the legislative or
executive branches.
¶40 	A number of post-Jenkins cases have interpreted Jenkins
as treating issues of sufficient public importance as a third and
separate test for standing. 	See, e.g., Nat’l Parks &
Conservation Ass’n 	v. Bd. of State Lands, 869 P.2d 909, 913
(Utah 1993) (holding that plaintiff National Parks had standing
because it raised issues of significant public importance);
Sierra Club v. Utah Solid & Hazardous Waste Control Bd., 964 P.2d
335, 339-40 (Utah Ct. App. 1998) (recognizing three separate
standing tests and holding that the Sierra Club had standing
because it raised “issues of great public importance”); Sierra
Club v. Dep’t of Envtl. Quality, 857 P.2d 982, 986-88 (Utah Ct.
App. 1993) (listing the traditional criteria, most appropriate
plaintiff, and issues of public importance as three distinct
paths to standing and denying standing on all three grounds).
However, Jenkins did not treat issues of public importance as a
separate test. 	Rather, Jenkins specifically stated, “The absence
of a more appropriate plaintiff will not automatically justify
granting standing to a particular plaintiff. 	This Court must
still determine, on a case-by-case basis, that the issues are of
sufficient weight.” 	675 P.2d at 1150 (citation omitted). 	We
also stated that the court “will deny standing” to a party who
cannot demonstrate that it is an appropriate party, without

No. 20050455 	20
suggesting that a court ought to then continue to the important
issues analysis. 	Id. 	Moreover, we held the plaintiff in Jenkins
did not have standing, noting that “[s]ince [the plaintiff’s]
claim for standing . . . is predicated solely on the grounds of
its public importance, we will not grant him standing when the
pleadings reveal other potential plaintiffs with a more direct
interest in this particular question.” 	Id. at 1151. 	Jenkins
thus contemplated that the important issues analysis was to serve
as the second step of an alternative standing test and not as its
own separate test, a conclusion we now endorse anew.
¶41 	In summary, a party who satisfies the traditional test
has standing and the court need not inquire further. 	Id. at
1150. 	However, when a party fails the traditional test, the
court must then determine whether a party has standing under the
alternative test. 	To make this determination, the court must
first ask whether the party is an appropriate party. 	Id. 	If the
party is not an appropriate party, the court’s inquiry ends and
standing is denied. 	Id. 	On the other hand, if the party is an
appropriate party, the court then considers whether the party is
asserting issues of sufficient public importance to balance the
absence of the traditional standing criteria. 	Id. at 1150-51.
If so, the party has standing.
¶42 	Having clarified what a party must prove under the
alternative standing test, we note that even if the Sierra Club
had not met the traditional standing test, it would have standing
under the alternative test. 	The Sierra Club is an appropriate
party because it has “the interest necessary to effectively
assist the court in developing and reviewing all relevant and
legal factual questions.” 	Id. at 1150. 	The Sierra Club and its
members have an interest in ensuring that the construction and
the operation of the plant comply 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. 	Furthermore, as an entity
focused on protecting the environment, the Sierra Club has the
interest and expertise necessary to investigate and review all
relevant legal and factual questions relating to the plant.
¶43 	We do not doubt that the Citizens’ Group is also an
appropriate party, for it represents a large group of Sevier
County citizens who live near the proposed site. 	However, the
fact that the Citizens’ Group is an appropriate party to litigate
the claims of its members does not alter the Sierra Club’s status
as an appropriate party. 	Indeed, the Sierra Club may be better
equipped to effectively assist the court with the relevant legal

6 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).
21 	No. 20050455
and factual issues because it has access to more resources and
has more experience in the environmental litigation forum.
Moreover, the Sierra Club’s petition for standing does not merely
duplicate that of the Citizens’ Group. 	Rather, the Sierra Club
presents its own distinct issues; for example, the Sierra Club
asserts that the Executive Secretary did not adequately address
carbon dioxide and other greenhouse gas emissions, did not
sufficiently consider carbon injection for the control of
mercury, did not require continuous opacity monitoring, and did
not require appropriate “Best Available Control Technology”
limits, as required under the Clean Air Act. 	Even where the
Sierra Club’s arguments overlap with those of the Citizens’
Group, the Sierra Club presents the arguments from a different
perspective, specifically focusing on the details of the Clean
Air Act and the harmful effects of particular emissions.
Accordingly, we believe that the Sierra Club’s issues are
unlikely to be raised effectively unless it is allowed to
intervene.
¶44 	As to the public importance requirement, the issues in
this case are sufficiently important to warrant granting the
Sierra Club standing. 	The plant will emit 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, 6 the Executive Secretary must comply with
all applicable state and federal laws. 	To ensure that this
happens, it is important to give the opportunity to be heard to
those persons who will be directly affected by the alleged
violations of state and federal law. 	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. 	Rather, the legislative and
executive branches have already addressed these issues by passing
the federal Clean Air Act, 42 U.S.C. §§ 7401, 76719 (2000), the
Utah Air Conservation Act, Utah Code Ann. §§ 19-2-101 to 127
(2003 & Supp. 2005), and the Utah Administrative Procedures Act,

No. 20050455 	22
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.
CONCLUSION
¶45 	We hold that the Board erred by 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 in 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.
---
¶46 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.