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Getches-Wilkinson Center Water Law Fellows Jaime Garcia and Chelsea Colwyn filed an amicus brief on behalf of Eco-Cycle and Conservation Colorado in an important environmental protection case

On April 7, the Colorado Supreme Court heard oral arguments in Board of County Commissioners of the County of La Plata County, Colorado v. Colorado Department of Public Health and Environment (CDPHE). The case presents two issues: 1) Whether a county falls within the definition of 鈥榩erson鈥� under the Solid Wastes Disposal Sites and Facilities Act (SWA); and 2) whether, under the SWA, an enforcement action brought against a public entity is a tort and thus barred by the Colorado Governmental Immunity Act (CGIA). The Court鈥檚 interpretation of the SWA and CGIA could have an enormous impact on the CDPHE鈥檚 ability to enforce environmental protection regulations throughout the state.

This case arose out of a dispute between CDPHE and La Plata over the steps necessary to determine potential groundwater contamination at a closed landfill. La Plata purchased the closed landfill in 1970. Importantly, this landfill ceased operation to avoid the costs necessary to upgrade its outdated design to comply with modern environmental protection laws. In 2004, La Plata notified CDPHE the landfill was leaking vinyl chloride, a known carcinogen. As a result, La Plata and CDPHE coordinated efforts to monitor groundwater near the landfill to ensure vinyl chloride would not contaminate drinking water.

In 2016, groundwater monitoring revealed vinyl chloride was seeping into deeper groundwater sources, increasing concerns about impacts on drinking water. CDPHE proposed a new monitoring plan, which La Plata objected to on the basis of cost. Despite over a decade of close cooperation on this issue, CDPHE and La Plata could not resolve their disagreement over the necessity of a new monitoring plan. As a result, CDPHE issued a unilateral administrative order, a power necessary to carry out its function as the statewide regulator for solid waste programs. This order would have required La Plata to take corrective actions, including the implementation of new groundwater monitoring protocols. The order did not seek administrative penalties. La Plata contested this order before the Office of Administrative Courts (OAC).

CDPHE and La Plata鈥檚 dispute raised important questions about the CDPHE鈥檚 authority to regulate county owned and operated landfills. The OAC issued a final order finding that the CDPHE had jurisdiction over counties pursuant to the SWA, and that the compliance order was barred by the CGIA. La Plata then appealed the decision to the La Plata County District Court. The District Court held that the compliance order was a tort action, and thus barred by the CGIA. If upheld, this decision could upend the CDPHE鈥檚 regulatory power, considering the CDPHE routinely enters into compliance orders with counties to address violations at county owned and operated landfills. Because the District Court decided the issues in favor of La Plata, the judge also awarded La Plata attorney鈥檚 fees. The District Court, however, declined to reach the 鈥減erson鈥� question on procedural grounds.

The Colorado Court of Appeals reversed the District Court, agreeing with CDPHE鈥檚 interpretation of the CGIA. Additionally, the Court exercised its discretion to address the issue of whether a county is a 鈥減erson鈥� for purposes of the SWA. The Court disposed of the 鈥減erson鈥� issue, noting the long legislative history of the SWA, which reinforces the legislature鈥檚 intent to include counties as a regulated 鈥減erson鈥� under the SWA. The Court turned to the CGIA, noting this as an issue of first impression, meaning courts have not before considered whether the CGIA prevents CDPHE from bringing an enforcement action against a county under the SWA. The Court鈥檚 analysis centered on whether an enforcement action under the SWA was a tort, or could lie in tort. Extending the Court鈥檚 analysis of the SWA, the Court pointed to the broad regulatory scheme of the SWA, which grants CDPHE power to regulate solid waste and minimize significant public health risks and environmental hazards. The Court concluded the SWA established a 鈥渟tatutory non-tortious duty鈥� and was therefore not barred by the CGIA.

La Plata appealed the Court of Appeals鈥� decision, and was granted certiorari by the Colorado Supreme Court. Recognizing the complexities and potential impacts of the case, the Supreme Court accepted Amicus Briefs from Colorado Counties Incorporated (CCI) in support of La Plata, and from Sierra Club, National Waste Haulers and Recyclers Association (NWHRA), Eco-Cycle, and Conservation Colorado in support of CDPHE. GWC Fellows Chelsea Colwyn and Jaime Garcia, and Colorado Law Professor Sarah Krakoff provided pro-bono representation of Eco-Cycle and Conservation Colorado in the submission of their Amici Brief. The extensive briefing on both sides in this case went beyond the legal issues of statutory interpretation, and highlighted the potential impacts of the Supreme Court鈥檚 forthcoming ruling. CCI and La Plata highlighted the potential economic impact to counties if they are required to comply with CDPHE orders, and potentially pay administrative penalties. CDPHE and its supporting Amici argued a ruling in favor of La Plata would provide an unfair advantage to county-owned landfills, and in doing so, upend the State鈥檚 environmental protection laws.

The Colorado Supreme Court considered these contentious issues, raising new points during oral argument and asking counsel for both sides about the practical outcomes of this case. Several times the Supreme Court noted that counties own and operate the majority of the solid waste landfills in Colorado; a ruling that counties are not subject to CDPHE鈥檚 jurisdiction either under the SWA or due to the CGIA would effectively permit counties to self-regulate, without any oversight from the CDPHE. Although the Supreme Court recognized this potential outcome, some justices nevertheless asked if the General Assembly was the proper branch of government to address this issue. The Supreme Court focused much of its questioning on the interpretation of 鈥減erson鈥� in the SWA, with counsel for both parties fielding tough questions from the justices. The abundance of briefing on both sides and the Supreme Court鈥檚 evenhanded questioning will leave both parties eagerly awaiting the Supreme Court鈥檚 opinion.

In support of CDPHE, Eco-Cycle and Conservation Colorado focused the Court鈥檚 attention on the negative environmental impacts which could result from a ruling in La Plata鈥檚 favor. Uniform, statewide enforcement of environmental regulations is the cornerstone of modern environmental law. The SWA is Colorado鈥檚 oldest environmental law; as a result, it has been amended several times between 1967 and today. Significant amendments occurred in the early 1990s when the General Assembly amended its laws to conform with the federal Resource Recovery and Conservation Act (RCRA). Under RCRA, the federal government sets minimum standards for all solid waste facilities, but leans on states to implement a statewide plan that regulates all facilities and ensures they comply with those minimum standards. Many states, including Colorado, have enacted regulatory schemes which exceed the minimum standards of RCRA, and are more protective of the environment and public health. One of the key conditions for state regulation of solid waste is a state鈥檚 ability to enforce environmental standards against all solid waste facilities.

If the Supreme Court rules that CDPHE may not enforce against counties either due to the definition of 鈥減erson鈥� in the SWA or due to the CGIA, this statewide enforcement authority would disappear. This could result in several negative outcomes. Of chief concern is the potential for the EPA to decertify Colorado鈥檚 state implementation plan. Colorado would see its regulators replaced with federal officials, who would likely not have the familiarity with the state, or the resources necessary to monitor all solid waste facilities throughout the state. If the state鈥檚 plan is decertified, the state鈥檚 extensive regulations would be replaced by RCRA鈥檚 minimum standards. While these standards do provide some protections for the environment, the current state standards are far more stringent. The potential impact on the environment was echoed in the briefs of other Amici, as well as the concern that a ruling in favor of La Plata could create an uneven playing field for county-owned landfills.

The Colorado Supreme Court鈥檚 decision in Board of County Commissioners of La Plata County v. Colorado Department of Public Health and Environment could have far-reaching implications for the Solid Wastes Act, and potentially all environmental protection laws in the state. The GWC Water Fellows are grateful for the opportunity to file a brief in support of Colorado鈥檚 important environmental protection laws, and eagerly await the Court鈥檚 decision.

Oral arguments in the case available .