For the past three years, Ben Cohen, Colin Deihl, and Gina Tincher have represented the Board of County Commissioners of Weld County, Colorado, in seeking judicial review of air quality rules adopted by Colorado’s Air Quality Control Commission (“AQCC”) in late 2019 following rulemaking.

Weld County, the largest oil and gas producing county in Colorado, actively participated in the rulemaking, including proffering expert testimony about how the proposed rules would negatively impact oil and gas production in the County, and thus, would impact Weld County’s tax revenues and land use oversight. Nevertheless, the AQCC enacted the new rules over Weld County’s objections. Weld County timely challenged the new rules, but the district court ultimately dismissed the case, agreeing with the Attorney General that Weld County lacked standing under the judicially created “Rule of Martin.” The Court of Appeals affirmed, and on November 21st, the Colorado Supreme Court granted Weld County’s petition for certiorari in order to revisit the Rule of Martin’s evolution since it was first announced more than 50 years ago.

Under that rule, an entity “subordinate” to a state agency is barred from challenging agency action unless there is an express statutory provision conferring a right on the subordinate entity to seek judicial review. On appeal, Ben, Colin, and Gina argued that while purely internecine disputes are properly excluded from those for which judicial review is proper, there are many instances in which an entity such as a county and a state agency have differing interests that often conflict. In those cases, the General Assembly has been clear - counties are included in the definition of “persons” entitled to seek judicial review of agency action under the State’s Administrative Procedure Act. Thus, regardless of whether the statute at issue in the rulemaking, the Air Quality Control Act, includes a separate express grant of authority to seek judicial review (which Weld argues it does), the General Assembly has unequivocally granted authority in situations such as this for counties to challenge state agency action.

The parties are currently in the middle of briefing. Weld County submitted its Opening Brief on January 13th. The State’s Answer Brief is due by February 17th. Oral arguments will likely be held sometime between April and June, with an opinion likely following this fall.