630 F.

2d 754
14 ERC 2032, 14 ERC 2033, 10 Envtl.
L. Rep. 20,769

MOUNTAIN STATES LEGAL FOUNDATION et al.,

Petitioners,
v.
Douglas M. COSTLE et al., Respondents.
State of Colorado ex rel. J. D. MacFarlane, PetitionerIntervenor.
No. 79-2261.

United States Court of Appeals,

Tenth Circuit.
Argued March 13, 1980.
Decided Aug. 29, 1980.

James G. Watt and Gale A. Norton, Mountain States Legal Foundation,

Denver, Colo. (James W. Sanderson of Saunders, Snyder, Ross &
Dickson, Denver, Colo., with them on the brief), for petitioners.
Donald W. Stever, Jr., Atty. Gen., Dept. of Justice, Washington, D. C.
(James W. Moorman, Asst. Atty. Gen., and Angus Macbeth, Deputy Asst.
Atty. Gen., Washington, D. C., Barbara H. Brandon, Kenneth A. Reich
and Jose Allen, Attys., Dept. of Justice, Washington, D. C., with him on
the brief), (Michele Biegel Corash, Gen. Counsel, and Bruce Diamond,
James N. Cahan and Eric Smith, Attys., Environmental Protection
Agency, Washington, D. C., Christine Lipaj Shaver, Atty., Environmental
Protection Agency, Denver, Colo., of counsel), for respondents.
Janice L. Burnett, Asst. Atty. Gen., Natural Resources Section, the State
of Colorado, Denver, Colo. (J. D. MacFarlane, Atty. Gen., Richard F.
Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., and
Lawrence A. DeClaire, Asst. Atty. Gen., Natural Resources Section, the
State of Colorado, Denver, Colo., with her on the brief), for petitionerintervenor.
Jackson B. Battle, Robert J. Golten and Robert F. Wiggington, Boulder,

Colo., filed an amicus curiae brief for National Wildlife Federation.

Before BARRETT, DOYLE and McKAY, Circuit Judges.
BARRETT, Circuit Judge.

Mountain States Legal Foundation, hereinafter referred to as Mountain States,1

twenty-seven (27) named members of the Senate and House of Representatives
of the State of Colorado in their respective official capacities as individually
elected legislators of the State of Colorado, and the State of Colorado ex rel.
Mountain States, hereinafter jointly referred to as Mountain States, et al., or
petitioners, filed a petition for review challenging the constitutional and
statutory authorization of a final rulemaking decision of the federal
Environmental Protection Agency (EPA) conditionally approving portions of
the Colorado air quality control implementation plan. The petition, dated
December 4, 1979, was filed pursuant to the Clean Air Act, 42 U.S.C. 7401
et seq. and rule 15 of Fed.R.App.Proc., 28 U.S.C.A. The State of Colorado, ex
rel. J. D. MacFarlane, Attorney General, intervened.

Background
2

Section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607(b)(1), involves a

complex web of exclusive jurisdiction governing review of various actions of
the Administrator of EPA. Decisions handed down prior and subsequent to the
1977 amendments to the Act make it clear that exclusive jurisdiction for review
of regulations or actions of the Administrator of EPA vests in the courts of
appeals. Anaconda Company v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973);
U. S. Steel Corp. v. U. S. Environmental Protection Agency, 595 F.2d 207 (5th
Cir. 1979); Lubrizol Corp. v. Train, 547 F.2d 310 (6th Cir. 1976).

The Clean Air Act creates a complicated statutory framework. The

responsibility for plans to clean up the air is divided between the federal and
state governments. The Act requires the EPA Administrator to establish
ambient air quality standards for various pollutants. 42 U.S.C. 7409. Each
state governor is then required to submit a state implementation plan (SIP)
designed to accomplish these standards. 42 U.S.C. 7410. The EPA
Administrator thereafter either approves or disapproves the SIP. 42 U.S.C.
7410(a)(2)(A) through (K). Thus, the Congress clearly intended the final
decision to be that of the EPA. See 42 U.S.C. 1857(a)(2)(b), 1857c-5,
1857c-6; 42 U.S.C. 7410(a)(2)(I), 7413(a)(5), 7502(a)(1). See also : 42
U.S.C. 7411(d)(1), (2) (A) and (B), 7412(d)(1) and (2).

If a state fails to promulgate an acceptable plan, the Act requires that the EPA
Administrator formulate and promulgate a federal plan for the governing area.
42 U.S.C. 7410(c). The 1972 Colorado SIP submitted by the Governor met
the approval of the EPA Administrator. 40 C.F.R. 52.320, et seq. However,
the 1972 Colorado SIP was required to be revised by virtue of 1977
amendments to the Act dealing with "nonattainment areas", i. e., air quality
control regions that fail to meet air quality standards. 42 U.S.C. 7501-7508.
States with "nonattainment areas", such as Colorado, were required to submit
revised SIPs by January 1, 1979; further, if a state appeared to be unable to
meet air quality control standards by December 31, 1982, an additional
requirement is imposed by the Act: The implementation of an automobile
emission inspection and maintenance (I/M) program. 42 U.S.C. 7502(b)(11)
(B). In the event of a state's failure to comply, the EPA contends it is
empowered to ban new construction in nonattainment areas pursuant to 42
U.S.C. 7410(a)(2)(I), and to withhold federal grants pursuant to 42 U.S.C.
7506(a) and 7616(b).

The EPA's Final Rulemaking on Approval of the Colorado SIP, 44 Fed.Reg.

57401 (October 5, 1979), effectively amended 40 C.F.R. part 52, so as to
approve in part the revised Colorado SIP mandated by the nonattainment
provisions of the Clean Air Act. The revised SIP was submitted to EPA by the
State on January 2, 1979. EPA published a notice of proposed rulemaking on
May 11, 1979. See 44 Fed.Reg. 27691. The final rulemaking notice included
four different types of dispositions as to various portions of the SIP: Approval,
conditional approval, disapproval, and no final action. The instant case
particularly relates to the attainment of the ambient air quality standards for
ozone and carbon monoxide in "nonattainment areas" where EPA required I/M
programs. These areas included portions of Larimer, Weld, Adams, Arapahoe
and El Paso Counties, and the Counties of Denver, Boulder, Douglas and
Jefferson.

The EPA contended that Colorado Senate Bill 1, establishing an I/M program
to begin on January 1, 1981, and commissioning a study of the effectiveness of
various I/M-type programs, was not "adequate enabling authority".
Accordingly, the legislation did not receive complete EPA approval. The
Administrator found that the legislation was deficient in several respects: (1)
the legislature retained the right to approve I/M standards before they were to
go into effect; (2) the bill contained no provision for retest after maintenance;
(3) its appropriateness for 1981 and later model vehicles was questioned; (4) it
lacked schedules for implementation of various administrative elements of the
program; (5) the bill needed provisions for recordkeeping; (6) there were no
demonstrated commitments to reduce emissions by at least 25% or to

implement and enforce the program; and (7) the bill did not provide for
unannounced inspection of facilities. 44 Fed.Reg. 57404-05. As a result of
these alleged deficiencies, EPA ruled: "It is clear, however, that the program
passed by the legislature does not meet the requirements of the Clean Air Act
and additional action by the legislature is essential." 44 Fed.Reg. 57405. The
EPA Final Rulemaking of October 5, 1979, set forth a timetable for the
Colorado state legislature and Governor to follow as a basis for achieving full
approval:
7

January 1, 1980-Senate Bill 1 study to be completed and submitted to

legislature.

January 12, 1980-I/M program to be included on list of Governor's Call Items

for the 1980 legislative session.

February 1, 1980-Study results in the form of a draft final report to be submitted

to legislature.

10

February 1, 1980-Bill introduced in the legislature-copy submitted to EPA.

11

March 1, 1980-Submission to EPA of legislation signed into law by the

Governor, as well as schedules (milestones, dates, responsible agency) to
implement the I/M program and corrections to other noted deficiencies.

44 Fed.Reg. 57405 (1979).

12
13

We here observe that the March 1, 1980, "deadline" above referred to was in
fact the creation of the Colorado General Assembly, by virtue of its passage of
Senate Bill 1 in June of 1979 which provided, inter alia : "The general assembly
shall . . . take legislative action thereon, if any, not later than March 1, 1980 . .
." C.R.S.1973, 42-4-306.5(5). The deadline was self-imposed by the Colorado
legislature.

14

The Administrator's mandate was followed by a listing of the consequences of

noncompliance, including imposition of the sanctions contained in 176(a)
and 316(b) of the Act, 42 U.S.C. 7506(a) and 7616(b), and a prohibition on
construction of certain new major facilities in nonattainment areas, 42 U.S.C.
7410(a)(2)(I). 44 Fed.Reg. 38471 (July 2, 1979). The Administrator
emphasized the effect of noncompliance: "Due to potentially severe impacts
resulting from the imposition of sanctions, it is vital that the effects be well
understood." 44 Fed.Reg. 57408. Among the Administrator's "examples" of

affected projects were planning and research grants, sewage treatment grants
totaling $132 million (itemized by project), and an unspecified amount of
federal highway funds. The EPA further warned that if it appeared that the state
would not meet EPA's schedule, the imposition of sanctions would be
accelerated. 44 Fed.Reg. 57408. These "admonishments" were made by EPA
Regional Administrator Roger L. Williams following his meeting on February
28, 1980, with leadership of the Colorado General Assembly during which time
the leadership expressed no hope that its own March 1, 1980, deadline would
be met and that there was little prospect for the passage of an acceptable I/M
program before the end of the legislative session.
15

On March 1, 1980, EPA notified this Court of its intention to disapprove the
carbon monoxide and ozone portions of the Colorado SIP and that it would
impose the Section 110(a)(2)(I) moratorium on construction of new major or
modified stationary sources of these pollutants in the affected nonattainment
areas pursuant to authority it claimed under 42 U.S.C. 7410(a)(2)(I). At that
time, EPA would also begin to exercise its authority under Sections 176(a) and
316(b) of the Clean Air Act, 42 U.S.C. 7506(a) and 7616(b), to limit federal
funds.

16

The Mountain States petition for review challenges (a) the EPA withholding of
federal funds under the Clean Air Act and imposition of a stationary source ban
as coercive action designed to achieve specific state legislative action, (b) the
EPA Administrator's action under the Clean Air Act of "conditionally
approving" or disapproving the SIP, (c) the actions of the EPA Administrator
under the Clean Air Act in requiring the Colorado General Assembly to pass
legislation meeting EPA criteria and an EPA timetable, and (d) the various
actions of the EPA Administrator in violation of the Administrative Procedure
Act, the Tenth Amendment, the First Amendment, the Fifth Amendment and
Article IV, Section 4 (guarantee of a republican form of government) of the
United States Constitution.

17

The State of Colorado, by and through its Attorney General, as Intervenor, filed
a brief in direct, absolute conflict with the contentions raised by Mountain
States. The State contended: (a) the EPA Administrator had not exceeded his
statutory authority in conditionally approving the Colorado SIP, (b) the actions
proposed by EPA pursuant to the Clean Air Act, 176(a), 316 and 110(a)(2)
(I), do not violate the Tenth Amendment, (c) EPA's conditional approval does
not infringe on First Amendment rights to freedom of speech and to petition the
government for redress of grievances, (d) due process of law has not been
violated, (e) EPA's conditional approval of the Colorado SIP does not abridge
the guarantee of a republican form of government, and (f) Mountain States

lacks standing to represent the State of Colorado in an ex relatione capacity.

Proceedings for Stay Pending Review
18

Following the filing of the aforesaid Petition for Review, Mountain States, et
al., filed a Motion for Stay pending this Court's review. The matter was briefed
and argued before this Court, following proper notice.

19

On March 13, 1980, this Court entered its Order granting injunctive relief
staying enforcement by the EPA of any and all sanctions to and including May
1, 1980. We further ordered the Petition for Review submitted. In relation to
the May 1, 1980, deadline, the Court observes that in the course of oral
arguments presented on March 13, 1980, the State of Colorado, by and through
the Colorado Attorney General, represented that it was likely that the Colorado
General Assembly would enact legislation adopting an I/M program acceptable
to EPA on or about May 1, 1980. The Attorney General expressly disclaimed
any agreement with the constitutional and statutory challenges raised by
Mountain States, et al., in their Petition for Review. In fact, the Attorney
General acknowledged that he did not share the views expressed by Mountain
States, et al., in challenging the constitutionality of the Clean Air Act and/or the
actions taken by EPA preceding EPA's imposition of sanctions. The Attorney
General's sole argument before this Court was that the action of the EPA in
imposing the funding withholding sanctions prior to final adjournment of the
1980 session of the Colorado General Assembly would be arbitrary and
capricious action because the General Assembly was making reasonable efforts
to cure the deficiencies.

20

On May 2, 1980, this Court's injunctive order expired. On that date the
Administrator of EPA imposed the funding and construction sanctions. On May
7, 1980, the Colorado legislature adopted I/M legislation, signed into law by
Governor Lamm on May 23, 1980. EPA informed this Court on May 15, 1980,
that it tentatively believed the legislation to be adequate under the Clean Air
Act and had submitted for publication in the Federal Register a notice
proposing approval of I/M legislation as part of the SIP. It was in this setting
that this Court, on May 29, 1980, upon its own motion, ordered the parties to
file memoranda by June 9, 1980, "showing cause, if any there be, why the
appeal should not be dismissed for mootness".

21

In response to this Court's "mootness" order, the parties have responded as

follows:

22

(1) The Colorado Attorney General took no position on the matter. His position

22

(1) The Colorado Attorney General took no position on the matter. His position
is unexplained.

23

(2) EPA urged that the Court dismiss the action as moot. EPA points out that
while, strictly speaking, the case will be moot only after EPA has taken the
final action to approve the I/M legislation as part of the State Implementation
Plan following the notice of rulemaking and the comments which may be
submitted, the Agency will act promptly, and anticipates lifting all sanctions so
that no action will be taken under 176(a) and 316. EPA contends that under
Article III of the United States Constitution the jurisdiction of federal courts is
limited to those suits presenting a "live controversy" at the time the court
reviews the case, citing to Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42
L.Ed.2d 532 (1975) and DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40
L.Ed.2d 164 (1974), and that this requirement precludes Article III courts from
issuing advisory opinions which cannot affect the rights of the parties in the
case before them, citing to North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402,
30 L.Ed.2d 413 (1971) and Oil Workers Unions v. Missouri, 361 U.S. 363, 80
S.Ct. 391, 4 L.Ed.2d 372 (1960). EPA also relies on the recent decision of
County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642
(1979) for the proposition that a case is moot when the issues are no longer live
or the parties lack a legally cognizable interest in the outcome and where there
is no reasonable expectation that the alleged violation will recur.

24

As to the contention that the legislators and citizens of Colorado must be

protected from "coercion", EPA contends that since the Colorado legislature
had acted, it no longer requires any "protection" from the alleged "coercion",
and thus if this Court should reach the merits, it would be merely advising the
parties as to their constitutional right, should this issue ever arise in the future.
(Memo of EPA, June 10, 1980, pp. 5-6).

25

With reference to any contention that the matters presented are "capable of
repetition yet evading review", thus coming within the exception to the
mootness doctrine applied in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct.
347, 46 L.Ed.2d 350 (1975) and Sosna v. Iowa, supra, EPA argues that it
cannot be demonstrated that the administrative order or action that expired will
be repeated and that the new order will again evade review. EPA states that the
alleged "coercion" could only occur again if the Colorado legislature either
repeals its I/M legislation or fails to implement its provisions; further, that if
such "speculative" events should come to pass, petitioners could again file suit
after EPA imposes a construction moratorium or funding restrictions.

26

(3) Mountain States strongly argued that the issues are not moot, will not

become moot, and demands judicial resolution. Mountain States contends:

27
Senate
Bill 52, enacting the EPA-dictated version of an inspection and maintenance
program, was narrowly passed by the Colorado General Assembly. A shift of only
two votes in the Senate would have defeated the measure. Attached to this
memorandum are affidavits (12 of State Senators and Representatives) and a
transcript of debates . . . conclusively (demonstrating) that if the EPA sanctions had
not been invoked, the legislation in its existing form, S.B. 52, would have been
overwhelmingly defeated in both the Senate and House . . . Furthermore, if sanctions
are lifted and the threat of reimposition is removed, the program will almost surely
be modified. The direct and continuing effect of EPA's pressure tactics violates the
rights of Colorado citizens. . . . If the status of this case has been changed so that the
Court considers the case moot, it is because the Court itself has allowed this to
happen. . . . The petitioners expected a decision (from this Court) by that time (May
1, 1980). . . . The legislature passed legislation only after the Court had refused to
prevent EPA from blackmailing the legislature and only after sanctions had actually
been imposed. When this lawsuit was initiated, petitioners contended that the
threatened sanctions had a chilling impact upon the legislature. Since that time, the
sanctions have become a reality, and their ability to control legislative action has
been proven. . . . To date this Court has chosen to step aside and allow EPA to
intrude into the functions constitutionally given to the Colorado government. . . .
Ruling that this case is moot will have severely negative public policy implications.
Legislators must not be required to sacrifice the state budget and allow irreparable
damage to the state economy in order to have their rights judicially clarified.
Declaring the issue of this case (the preservation of the constitutional form of
government in America) to be moot would be an unfair and irresponsible act that
should not be tolerated by this Court or the Supreme Court of the United States.
(Memorandum of Mountain States, filed June 9, 1980, pp. 1-6).
28
The Threshold Issue of Standing
29

EPA has consistently contended that petitioners, Mountain States, et al. ". . .
lack standing to assert any constitutional arguments on behalf of the State of
Colorado . . . for review since only the state has standing to make those
arguments. The state, moreover, has expressly opposed petitioners' arguments;
therefore, there is no case or controversy with respect to these arguments."
(Brief of EPA, p. 28). EPA, citing to those "standing" requirements articulated
in Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 98 S.Ct. 2620,
57 L.Ed.2d 595 (1978); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.
26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95
S.Ct. 2197, 45 L.Ed.2d 343 (1975) and O'Shea v. Littleton, 414 U.S. 488, 94
S.Ct. 669, 38 L.Ed.2d 674 (1974), argues, inter alia :

30

One of the "prudential concerns" recognized by the Supreme Court is that one
party should not be permitted to rest his claim to relief on the rights of another
who does not press those rights. Duke Power Company, supra, (438 U.S.) at 80
(98 S.Ct. at 2634). The rationale for this limitation was expressed by the Court
as follows:

31
There
are good and sufficient reasons for this prudential limitation on standing when
rights of third parties are implicated the avoidance of the adjudication of rights
which those not before the Court may not wish to assert, and the assurance that the
most effective advocate of the rights at issue is present to champion them.
32

Neither petitioner, Mountain States Legal Foundation, nor the individual

petitioner-legislators, has alleged a sufficient "personal stake" in this
controversy to entitle it to raise constitutional arguments on behalf of the State
of Colorado. * Only the State has standing to press claims aimed at protecting
its sovereign powers under the Tenth Amendment. Here, the State of Colorado
has intervened in this case and has directly opposed each of petitioners'
constitutional and statutory arguments.

33

Hence, the one party with clear standing to raise the constitutional arguments
made by petitioners not only declined to make those arguments but expressly
rejected them. Therefore, this case presents no justiciable case or controversy
with regard to the constitutional arguments raised here and the court need not
address them. Duke Power Company, supra. (Emphasis supplied).

34

Moreover, the state attacks Mountain States' standing to raise constitutional

claims on the state's behalf; respondents adopt the state's reasoning. Brief for
Colorado, at 30-34. EPA and the state both rely on this Court's decision in
Gallagher v. Continental Ins. Co., 502 F.2d 827 (10th Cir. 1974), as authority
for the proposition that Mountain States lacks standing to raise claims
belonging to the state. There the court held that a group of citizens and
taxpayers lacked standing to recover (on behalf of the state of Colorado) alleged
overpayments made in connection with a highway project.

35

Although the state did not challenge the standing of the individual petitioner
legislators herein, they have no better claim to standing than Mountain States,
under Gallagher, the other authorities cited in the state's brief, and the principles
discussed above, apply with equal force to the legislators' standing (sic).

36

Even if state law permitted the petitioner legislators to press the state's
constitutional claims, the "prudential concerns" recognized by the Supreme

Court in Duke Power Co., supra, dictate that this court should not allow the
legislators (or Mountain States) standing to raise claims that the state itself
declines to raise and in fact opposes.
(Brief of EPA, pp. 29-31).
37
38

In addition, EPA contends that no "case or controversy" exists entitling the

State of Colorado, as Intervenor, to an advisory opinion. EPA points out that
the State of Colorado, through its Attorney General, has taken a position
directly contra to that of Petitioners, and accordingly:

39

Colorado contends that, as far as it is concerned, EPA has not unlawfully

trenched upon the state's sovereign rights. Notwithstanding this contention, it
urges this court to "set forth the standards according to which EPA must adhere
in implementing the sanctions provisions of the Clean Air Act." Colorado's
Brief at 17. Colorado makes this request out of its concern that the federal
agencies, because of their "tremendous powers" and the states' concomitant
dependence on continued receipt of federal funding, might, at some unspecified
time in the future, unlawfully invade Colorado's sovereign rights; and, although
the state steadfastly maintains the EPA has not yet done so, it apparently
believes that the mere potential for future unlawful action by EPA is sufficient
justification for this court to sketch the constitutional boundaries of EPA's
authority under the Clean Air Act. See Brief for Colorado at 9-11, 16 and 17.

40

The lack of a dispute with regard to the Tenth Amendment issues between the
federal government and the only party with standing to raise these issues the
State of Colorado deprives this case of the indispensable Article III "case or
controversy" which is the predicate for the exercise of federal judicial power,
and consequently short-circuits further consideration by this court of all Tenth
Amendment claims. Therefore, whatever the depths of Colorado's concerns
with regard to the potential abuse of power by EPA or other federal agencies,
those concerns cannot vest this court with jurisdiction to render an advisory
opinion.

41

In conclusion there is no case or controversy here because Colorado contends

that the Clean Air Act passes constitutional muster under the Tenth
Amendment and the petitioners lack standing to raise any contrary Tenth
Amendment claims. Thus any decision on these issues would be purely
advisory and beyond the judicial power of this court under Article III.

(Brief of EPA, pp. 33-35).

42

43

The State of Colorado, by and through its Attorney General, contends that
Mountain States is without standing to represent the sovereign interest of the
State of Colorado in an ex relatione capacity:

44

. . . (A)n action concerning matters of general public welfare is appropriately

instituted in the name of the attorney general or in the name of the state ex rel.
attorney general. See, e. g., State ex rel. Taylor v. Lord, 28 Or. 498, 43 P. 471
(1896); Coco v. Oden, 143 La. 718, 79 So. 287 (1918); State ex rel. Attorney
General v. Cunningham, 81 Wisc. 440, 51 N.W. 724 (1892); United States v.
Throckmorton, 98 U.S. 61, 70 (25 L.Ed. 93) (1878).

45

C.R.S. 1973, 24-31-101 et seq. provides that the attorney general shall appear
for the state in all actions:

In which the state is a party or is interested when required to do so by the governor.

46
47
C.R.S.
1973, 24-31-101(1)(a). In this case, by executive order No. D0030-74 the
Governor ordered the attorney general to intervene in this action to represent the
interests of the state. (See attached exhibit C.)
48

Unless a statute provides otherwise, the attorney general has the exclusive right
to represent the state in actions to enforce its interests. State Board of Pharmacy
v. Hallett, 88 Colo. 331, 296 P. 540 (1937). Colorado has passed no legislation
authorizing a private person to represent the state in this or any other such
action.

49

A similar issue arose in an action brought by citizens and taxpayers of Colorado

seeking recovery of the amounts allegedly unlawfully disbursed in payment of
work done on a tunnel construction project. This circuit held that these citizens
had no standing to seek to recover these alleged overpayments on behalf of the
State of Colorado. (Gallagher v. Continental Insurance Co., 502 F.2d 827 (10th
Cir. 1974)). Characterizing the suit as a derivative action on behalf of the State
of Colorado, this circuit found that there was no authority under Colorado law
for maintaining such an action.

50

Despite its clear lack of authority, petitioner Mountain States Legal Foundation
may urge this court to imply authority for its actions from common law cases in
which private persons sought to act as relators. Petitioner's argument should be
rejected.

51

The doctrine in Colorado at common law was that a private person could not, as

a matter of right, bring an action for wrongs done to the public. Private persons
could represent the people as a relator only where the injury, in addition to
affecting the public, peculiarly affected them. People ex rel. Byers v. Grand
River Bridge Co., 13 Colo. 11, 21 P. 898 (1889); People ex rel. Jerome v.
Regents of State University, 24 Colo. 175 (49 P. 286) (1897); People ex rel. v.
Blake, 128 Colo. 111, 260 P.2d 592 (1953).
52

The petition for judicial review, filed with this court on December 4, 1979 by
petitioner, is utterly devoid of any allegations of fact attempting to demonstrate
that Mountain States Legal Foundation has any special interest in this matter
other than that of the general public. Thus, even under the common law test,
Mountain States Legal Foundation has no standing to represent the state as a
relator in this action. McCamant v. Denver, 31 Colo.App. 287, 501 P.2d 142
(1972).

53

Petitioners may also erroneously seek to premise their ex relatione status on

Colo.R.Civ.P. 106, which provides that if the district attorney declines to bring
an action under rule 106(a)(3) it may be brought upon the relation and
complaint of any person. Rule(s) 106(a)(3), however, refers only to actions
involving usurpation of office or franchise and is irrelevant to the situation
herein.

54

Moreover, even if rule 106 or the common law provided a proper basis for
authority for petitioner's attempt to attain ex relatione status, it should be noted
that the state has not declined to become involved in this action but has
intervened as a party. Petitioners may have serious standing problems
concerning their right to raise the tenth amendment issue (see respondent's
memorandum in opposition to petitioner's motion for stay pending review, pp.
25-28). This does not give them the right to bootstrap themselves, however, into
a position whereby, without any authority whatsoever, they purport to represent
the state and thus obtain standing to raise issues they would otherwise be
unable to raise. See Gallagher v. Continental Insurance Co., supra.

(Brief of Intervenor, pp. 30-34).

55
56

Mountain States did not specifically address the "standing" issue, apparently of
the view that the challenge is without substance. Contending that "this
controversy" calls upon the court to make a major decision regarding the future
relationship of the national and state governments (Brief of Petitioners, p. 13),
Mountain States urges that the EPA Administrator's action be invalidated under
the Administrative Procedure Act, 5 U.S.C. 706, and that, in addition,
relevant portions of the Clean Air Act be declared unconstitutional. Relying

heavily on National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49
L.Ed.2d 245 (1976), Mountain States argues that the essence of that decision ".
. . is that courts must determine whether the national government has exercised
its commerce power authority in a manner that 'displaces' state decisionmaking
regarding an integral state government function. This involves a determination
of (1) whether an integral function is involved and (2) whether state
decisionmaking has been displaced. If both of these factors are present, then the
action of the national government is unconstitutional as violative of the tenth
amendment." (Brief of Petitioners, p. 15). (Footnote omitted).
57

Mountain States, et al., contends that in this case EPA is attempting to interfere
in one of the most essential state functions lawmaking by imposing severe and
unnecessary sanctions against the states, the result of which is to shift
decisionmaking from the state to the national government and to destroy the
state's autonomy. After recounting the severe impact of the threatened
sanctions, i. e., halt to various projects, loss of jobs, serious financial difficulties
for local governments, Mountain States concludes: "In short, the EPA sanctions
threaten economic havoc for the state, its political subdivisions, and its people.
It is difficult to imagine that the state government could compensate for the
loss of federal funds or that the economy could adjust to such a setback.
Consequently, it is likely that citizens of Colorado would be deprived of
essential services." (Brief of Petitioners, p. 10).

General Principles of Standing

58

The critical, principal question here is whether any of the petitioners qualify as
"aggrieved" persons entitled to judicial review of final agency action, or
whether the petitioners have presented a sufficient "case or controversy" to
import justiciability between the petitioners and the respondent within the
meaning of Article III of the United States Constitution.

59

The question of standing involves "whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues." Warth v. Seldin,
422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In Duke Power
Co. v. Carolina Env. Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595
(1978), the Supreme Court recognized "injury in fact" as the one constant
element in judicial statements concerning standing:

60

The essence of the standing inquiry is whether the parties seeking to invoke the
court's jurisdiction have "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination

of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204 (82 S.Ct.
691, 703, 7 L.Ed.2d 663) (1962). As refined by subsequent reformulation, this
requirement of a "personal stake" has come to be understood to require not only
a "distinct and palpable injury," to the plaintiff, Warth v. Seldin, 422 U.S. 490,
501 (95 S.Ct. 2197, 2206, 45 L.Ed.2d 343) (1975), but also a "fairly traceable"
causal connection between the claimed injury and the challenged conduct.
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (97
S.Ct. 555, 561, 50 L.Ed.2d 450) (1977).
438 U.S. at p. 72, 98 S.Ct. at p. 2630.
61
62

"Injury in fact" means concrete and certain harm. It may be the out-of-pocket
costs to a business resulting from obedience to a new governmental rule, Hunt
v. Washington Apple Advertising Comm'r, 432 U.S. 333, 97 S.Ct. 2434, 53
L.Ed.2d 383 (1977), or the unwanted result of a government rule whether or not
a pecuniary loss is sustained. Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Even so, in the absence of
a specific statutory grant of a right of review, a plaintiff must allege some
particularized injury that sets him apart from the man on the street. United
States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974).
Thus, in National Collegiate Athletic Association v. Califano, 622 F.2d 1382
(10th Cir. 1980), we held that a plaintiff has standing if he is "injured in fact"
by the defendant's conduct and that the "injury in fact" must constitute concrete
and certain harm.

63

It is well established that judicial review of final agency action by an

"aggrieved" person will not be denied unless there is a persuasive reason to
believe that such was the purpose of Congress. Morris v. Gressette, 432 U.S.
491, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977). A party must clearly demonstrate
by facts alleged that "he is himself adversely affected" or those he represents
have been "injured in fact" by the agency's conduct. Sierra Club v. Morton, 405
U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Data Processing Service v.
Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

Standing in Relation to Pertinent Statutory Provisions of

64
the Clean Air Act And a Colorado Statute
65
66

It is necessary in cases involving "standing" contentions to concentrate on the

specific statutory framework from which the challenges have their origin in
order to place the issue in proper focus. Thus, in the case at bar, we must first
analyze the Clean Air Act in its pertinent parts together with any relevant

Colorado statutes.
67

The (EPA) Administrator is directed to ". . . cooperate with and encourage

cooperative activities by all Federal departments and agencies having functions
relating to the prevention and control of air pollution, so as to assure the
utilization in the Federal air pollution control program . . . (in conjunction with)
. . . cooperative activities by the States and local governments for the
prevention and control of air pollution . . ." 42 U.S.C. 7402(b) and (a). "Each
State shall have the primary responsibility for assuring air quality within the
entire geographic area comprising such State by submitting an implementation
plan for such State which will specify the manner in which national primary
and secondary ambient air quality standards will be achieved and maintained
within each air quality control region in such State." 42 U.S.C. 7407(a)
(emphasis supplied). The Administrator is directed to make various
determinations relative to a State plan which, by the language of the statute
must include "the comprehensive measures and requirements" to be approved
by the Administrator with an "attainment" date not later than December 31,
1982. 42 U.S.C. 7410. Should there exist any "nonattainment areas" within a
State from and after June 30, 1979, in which construction or modification is not
then being pursued, the Administrator contends that he is directed to terminate
construction of any major stationary source under 42 U.S.C. 7410(a)(2)(I),
and to withhold certain federal assistance funds from the affected
"nonattainment areas", if the Governor of the affected state has not submitted an
implementation plan which considers the required elements enumerated in 42
U.S.C. 7502 or if reasonable efforts toward such submission are not being
made after July 1, 1979. 42 U.S.C. 7506(a)(3) and 7616(b) (2). Thus, the
Congress expressly authorized the sanctions imposed in this case; furthermore,
it is ludicrous to imagine that the Congress did not understand the significance
of the economic impact of the funding restrictions it directed.

68

Significantly, the Act deals with compliance requirements beyond state plans
and provides for private penalties. The Act mandates exclusive review in the
courts of appeals governing the grant or denial of waivers to companies unable
to comply with applicable standards, 42 U.S.C. 7411(j), 7412(c), 7413(d)
and 7419 and establishes a procedure empowering the Administrator to impose
noncompliance penalties against the affected party following notice and
hearing. 42 U.S.C. 7420. In terms of "citizens suits", they are, in our view,
clearly authorized by direct proceedings in the district courts under 42 U.S.C.
7604 when the EPA Administrator is charged with failure to perform a nondiscretionary duty. See 38 A.L.R.Fed. 578. In our view, Congress thus
restricted citizens' suits to actions seeking to enforce specific non-discretionary
clear-cut requirements of the Clean Air Act. Anaconda Co. v. Ruckelshaus, 482

F.2d 1301 (10th Cir. 1973).

69

The EPA Administrator's Final Rulemaking on Approval of the Colorado SIP

of October 5, 1979, challenged here, was solely and exclusively directed to the
State Plan. The 1977 amendment to the Clean Air Act required that a specific
schedule be adopted to establish the inspection/maintenance (I/M) program, as
"expeditiously as possible". To be acceptable, an I/M program must achieve the
required 25% reduction in both hydrocarbon and carbon monoxide exhaust
emissions by 1987. It was in this setting that the EPA Administrator on March
14, 1980, published a final rule, 45 F.R. 16486, disapproving the carbon
monoxide and ozone portions of the Colorado State Implementation Plan,
invoking the restrictions on construction of major new or modified stationary
sources and announcing that it would begin withholding certain financial
assistance from the affected "nonattainment areas".

70

We have heretofore observed that the State of Colorado, by and through its
Attorney General, has in fact intervened in this case. The position of the State
of Colorado is completely in contradiction to that of Mountain States and the
twenty-seven members of the Colorado General Assembly on the constitutional
and statutory challenges raised by the petitioners. The sole contention raised by
the State of Colorado was that the imposition of the sanctions by the EPA
Administrator prior to final adjournment of the 1980 session of the Colorado
General Assembly would constitute arbitrary and capricious action by the EPA.
Thus, the State of Colorado, by and through its chief legal officer, the Attorney
General, has elected to disassociate itself with the contentions raised by
petitioners herein involving constitutional and statutory challenges to EPA's
actions taken or threatened. We observe that this posture is one which, at all
times, must necessarily have been known to all state officials and to the officers
and members of Mountain States. Even so, there is nothing whatsoever in this
record indicating that (a) the Governor of Colorado at any time directed the
Attorney General to raise the challenges presented here by petitioners, or (b)
the General Assembly (or any one of the twenty-seven legislators who appear
as petitioners here) requested the Attorney General to prosecute suit against the
EPA, notwithstanding the provisions of C.R.S. 1973, 24-31-101(1)(a):

71

The attorney general of the state shall be the legal counsel and advisor of each
department, division, board, bureau, and agency of the state government other
than the legislative branch. He shall attend in person at the seat of government
during the session of the general assembly and term of the supreme court and
shall appear for the state and prosecute and defend all actions and proceedings,
civil and criminal, in which the state is a party or is interested when required to
do so by the governor, and he shall prosecute and defend for the state all causes

in the appellate courts in which the state is a party or interested. (Emphasis

supplied).
72

Attached to Intervenor's Brief as Exhibit "C", is a copy of an Executive Order

executed by Governor Richard D. Lamm, dated December 21, 1979, ordering
the Attorney General to intervene in this lawsuit pursuant to C.R.S. 1973, 2431-101(1)(a) as one in which "the State is interested". Intervention was granted
on January 30, 1980.

73

One must necessarily ask: Who represents the State of Colorado? In light of the
complete, unequivocable conflict in positions heretofore emphasized between
petitioners and the State of Colorado, by and through the Attorney General, the
issue must be addressed.I.

Standing of Mountain States to Sue for Itself

74
75

We hold that Mountain States does not have standing to sue in its own right.
There is no showing that the challenged EPA actions will in anywise impair the
functions and activities of Mountain States. There is no contention that
Mountain States will suffer loss of membership, sustain financial loss or any
other impairment as a result of the actions of the EPA, whether actually taken
or threatened. Furthermore, Mountain States cannot satisfy the standing
requirement contained in 10(a) of the Administrative Procedure Act, 5 U.S.C.
702:

76

A person suffering legal wrong because of agency action, or adversely affected

or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.

77

We hold that Mountain States has not demonstrated that it has a sufficient
"personal stake" in the outcome of the controversy to render itself, as an
organization deeply interested in the problem, an "aggrieved person" with a
demonstrated "legal wrong" or claimed invasion of a "legal right". United
States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra
Club v. Morton, supra. Notwithstanding the fact that Mountain States has
advanced constitutional claims on behalf of its officers, members, supporters,
and the State of Colorado, we conclude that Mountain States has nothing more
than an indirect stake in the action. In Sierra Club v. Morton, supra, the matter
was well articulated:

78

The requirement that a party seeking review must allege facts showing that he

is himself adversely affected does not insulate executive action from judicial
review, nor does it prevent any public interests from being protected through
the judicial process. It does serve as at least a rough attempt to put the decision
as to whether review will be sought in the hands of those who have a direct
stake in the outcome. That goal would be undermined were we to construe APA
to authorize judicial review at the behest of organizations or individuals who
seek to do no more than vindicate their own value preferences through the
judicial processes.
405 U.S. at p. 740, 92 S.Ct. at p. 1368.
79
80

In Natural Res. Def. Coun., Inc. v. United States Env. P. Agcy., 481 F.2d 116
(10th Cir. 1973), Judge Breitenstein, writing for this Court, noted that 42 U.S.C.
1857h-5(b)(1), which was the predecessor to 7607(b)(1), simply provides
that a petitioner seeking review of the EPA Administrator's action in approving
or promulgating any implementation plan under 1857c-5 of the Clean Air Act
may do so by filing a petition in the appropriate United States Court of
Appeals, without any requirement that the person or organization seeking
review is a person "adversely affected or aggrieved" as required under 5 U.S.C.
702. Notwithstanding the "blanket invitation to all the world to petition a
court of appeals for review" under 1857h-5(b)(1), we held that a party
attacking agency action, whether it be in connection with rule making or after
an adjudicatory type hearing, must have standing, which, under Article III,
requires a showing of injury in fact bringing the party within the zone of
interests protected by the Clean Air Act.

II.
Standing of Mountain States to Sue For Its Officers, Members
81
and Supporters
82
83

We turn now to the question of whether Mountain States has standing to sue on
behalf of its officers, members, and supporters who are citizens of and reside in
the "nonattainment" areas of the State of Colorado affected by the EPA action,
and those officers, members and supporters "in the remainder" of Colorado
who are deprived of their constitutional and statutory rights.

84

We hold that there is nothing contained in this record showing that the officers,
members and supporters of Mountain States have that necessary "personal
stake" demonstrating injury in fact. The only resources they may have
committed or advanced are those representing membership fees or tax

payments, the former constituting voluntary action unassociated with issues

involved here, and the latter in a class common to all taxpayers generally. There
is no showing that their activities within the Mountain States organization have
been or will be affected in any manner as a result of the challenged EPA
actions. There is nothing about the EPA action, including the sanctions, which
can be considered compulsion by unwanted and unlawful government edict
constituting injury per se traceable to the officers, members or supporters of
Mountain States. There is no analogy here to that loss of accounts experienced
by the apple dealers in Hunt v. Washington Apple Advertising Comm'n, 432
U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) or the inability of a builder to
undertake a program of low-cost building in an area included in restrictive
zoning ordinances, as set forth in Arlington Heights v. Metropolitan Housing
Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In terms of the
"legal wrongs" or "zones of interests" tests relative to standing to sue, under the
Administrative Procedures Act, individuals, as officers, members and
supporters of an organization, must demonstrate that the challenged statutes
and/or regulations have some articulable "cause-and-effect" relation to an
identifiable "injury" which, in fact, affects them:
.85. . Petitioners must allege facts from which it reasonably could be inferred that,
absent the respondents' restrictive zoning practices, there is a substantial probability
that they would have been able to purchase or lease . . . and that, if the court affords
the relief requested, the asserted inability of petitioners will be removed.
Warth v. Seldin, 422 U.S. at p. 504, 95 S.Ct. at p. 2208.
86
87

The crux of petitioners' requested legal redress, as identified in the Petition for
Review, is an order from this Court setting aside the actions of the
Administrator of EPA on a variety of constitutional grounds essentially targeted
at the threatened "punitive sanctions against the State of Colorado".
Significantly, the Petition states that prior to filing said Petition, Mountain
States dispatched a letter to Governor Lamm requesting him "to direct the
Attorney General to protect the interests of the State of Colorado "; further,
both formally and informally, specific requests were made of the Attorney
General to "protect the sovereign interests of the State of Colorado from federal
government intrusion into the internal affairs of the State" by filing the Petition
for Review within the requisite time limit, to-wit, by December 4, 1979. The
Petition states that because representatives of the Attorney General's office
stated that there was no present intention to challenge the Administrator's
rulemaking order of October 5, 1979, ". . . Mountain States Legal Foundation
takes it upon itself the responsibility to file this Petition ex relatione on behalf
of the sovereign State of Colorado. Should the Governor of the State of
Colorado direct the Attorney General to represent the state's interest in this

grave constitutional matter, the Mountain States . . . would eagerly welcome his
involvement." The foregoing is, in our view, an implicit acknowledgment by
petitioners that the challenges advanced by them are, in reality, (if accepted as
true based on the pleadings contained in the Petition) challenges directly
affecting the sovereign State of Colorado. As thus cast, these challenges could
only be advanced here by the Attorney General. In fact, however, the Attorney
General, in intervention, has refused to associate the interests of the State of
Colorado with the challenges advanced by petitioners.
88

In Gallagher v. Continental Insurance Company, 502 F.2d 827 (10th Cir. 1974),
this Court held that a group of citizens and taxpayers had no standing to
recover, on behalf of the State of Colorado, alleged overpayments made in
connection with a highway project. We there said:

89
Plaintiffs
urge that as state citizens and taxpayers they may sue for the recovery of
unlawfully disbursed funds. Viewed in this light, the suit is a derivative action to
assert state rights. Authority to bring a suit of that nature depends on state law.
Colorado has no constitutional or statutory authorization for maintenance of
derivative actions on behalf of the state. It has been held that absent statutory
authorization citizens and taxpayers may not bring a derivative suit on behalf of the
state. . . . In some cases courts have implied such a right. . . . In Colorado, the right
would have to be implied. We agree with the district court that it is not "the province
of the federal judiciary to fashion implied state rights of action." (Citations omitted).
502 F.2d at 832.
90
91

The issue of "standing" in a case very similar to the case at bar was before this
court in Natural Res. Def. Coun., Inc., v. United States Env. P. Agcy., supra.
There, the petitioners, although not asserting constitutional issues, did challenge
the EPA Administrator's approval of portions of implementation plans
submitted under the Clean Air Act by Colorado, New Mexico and Utah. We
held that the petitioners were without standing. The petitions for review were
dismissed. We there said, in relevant part:

92

We believe that the question is whether the party attacking agency action has
standing, not whether the issue itself is justiciable. . . . (F)actors (to be
considered) are whether the attack on agency action is by a person within the
zone of protected interests . . . .

93

We come then to the effect of 1857h-5(b)(1). By permitting anyone in the

world to petition for review of agency action without hindrance or limitation,
Congress attempts to authorize private attorney generals to assert a public

interest. If Art. III is not controlling, the question is the power of Congress to
affect the Court imposed rule of self-restraint. We are helped by no decided
cases. . . . Anything which we might say on the rights of private citizens to
assert their ideologies in public actions would add little if anything to the
literature on the subject.
. . . We believe that any congressional authorization of suits by private attorney
94
generals must be unequivocal and appropriate.
.95. . 1857h-5(b)(1) is not an appropriate authorization. . . . Unrestricted litigation by
private persons to assert their own ideologies under a claim of public interest
presents the potential of hazardous consequences to our constitutional system based
as it is on the concept of separation of powers.
.96. . We believe that Art. III is controlling and that petitioners lack standing because
they fail to state any injury in fact and hence do not present a case or controversy
within the constitutional mandate. If we are wrong in this, we believe that petitioners
have no standing because they have alleged nothing which brings them within the
zone of interests protected by the Clean Air Act Amendments of 1970. If we are
wrong in both of these conclusions . . . we believe that 1857h-5(b)(1) is ineffective
to deny the exercise of judicial restraint in determination of standing in cases like
these, and we choose to exercise that restraint.
481 F.2d at pp. 120-121.
97
98

We hold that Mountain States is without standing to seek judicial review on

behalf of its officers, members and supporters.

III.
Standing of the Twenty-seven Named Members of the Colorado
99
General Assembly to Sue
100 It is the contention of the named members of the Colorado General Assembly
that ". . . EPA has entered a sensitive area by telling a state legislature to pass
new legislation meeting certain specific requirements . . . The actions of the
EPA-requiring passage of legislation and threatening sanctions against the
state-have a serious chilling effect upon the legislators' freedom of speech. . . .
Compelling an affirmative act of a political or ideological nature is not
permitted by the first amendment. Wooley v. Maynard, 430 U.S. 705 (97 S.Ct.
1428, 51 L.Ed.2d 752) (1977). . . . The national interest does not outweigh the
first amendment interest in preserving the important right of legislators to vote

according to the wishes of their constituents, not at the behest of another

government agency." (Brief of Mountain States, pp. 33-34).
101 A private litigant, whether he be a legislator, a citizen or a taxpayer must, in
order to have "standing" to sue, demonstrate a personal stake in the outcome,
and demonstrate that he is the proper party to request adjudication of the
particular issue. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947
(1968). Federal courts do not have power to render advisory opinions. F. C. C.
v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978).
102 In Lamm v. Volpe, 449 F.2d 1202 (10th Cir. 1971), this Court held, inter alia,
that the plaintiff, who filed a class action seeking a declaratory judgment that a
federal statute constituted an usurpation of the police power reserved to the
State of Colorado in violation of the Tenth Amendment, was without
"standing". There Lamm (now Governor Lamm) sued individually as a citizen
and taxpayer of the State of Colorado and of the United States, and as a
member of the Colorado legislature. He contended, much in the manner of the
twenty-seven legislators in the instant case, that 23 U.S.C. 131 was
unconstitutional as violative of the Tenth Amendment. That provision was
enacted as part of the 1965 Highway Beautification Act, which regulated
outdoor advertising along federal-aid highways. It provided that if the
Secretary of Transportation decided that any State had not provided "effective
control" of outdoor advertising along federal-aid highway systems, the total
Federal-Aid Highway Allotment to that State would be reduced 10% per year
(estimated to be $6 million per year to Colorado). Lamm had introduced bills in
the Colorado legislature, in reliance on the State's police power, which
apparently would have declared the outdoor advertising adjacent to certain
highways, including the federal-aid highway system, subject to destruction or
abatement without compensation as injurious to public safety as a public
nuisance. Lamm had contended that the "withholding" statute had, in effect,
intimidated the Colorado Legislature and had prevented due consideration of
his bills. We held that Lamm lacked standing to raise the Tenth Amendment
challenge because he had not demonstrated that Congress, in enacting 23
U.S.C. 131, supra, had exceeded its taxing and spending power delegated to it
by Article I, 8, and that Congress had not thereby invaded the legislative
province reserved to the states by the Tenth Amendment. In dicta we observed:
103 Here the power of regulation has not been preempted by the Congress. But that
begs the point. The Congress has clearly determined that the "taking" of
outdoor advertisements adjacent to federal-aid highways required "just
compensation". The Tenth Amendment has been construed "as not depriving
the national government of authority to resort to all means for the exercise of a

granted power which are appropriate and plainly adapted to the permitted end."
United States v. Darby, 312 U.S. 100 (61 S.Ct. 451, 85 L.Ed. 609) . . . (1941).
And while the United States is "not concerned with, and has no power to
regulate local political activities as such by state officials, it does have power to
fix the terms upon which its money allotments to state shall be disbursed."
Oklahoma v. U.S. Civil Service Comm'n., 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed.
794 . . . (1947).
104 Following oral arguments, Lamm submitted "traditional cases" in further
support of his standing contention. He cited Allen v. Hickel, 138 U.S.App.D.C.
31, 424 F.2d 944 (1970); Protestants and Other Americans United for
Separation of Church and State v. Watson, 132 U.S.App.D.C. 329, 407 F.2d
1264 (1968); Association of Data Processing Service Organizations v. Camp,
397 U.S. 150 (90 S.Ct. 827, 25 L.Ed.2d 184) . . . (1970); and School Dist. of
Abington Tp., Pa. v. Schempp, 374 U.S. 203 (83 S.Ct. 1560, 10 L.Ed.2d 844) . .
. (1963). These decisions do not aid Lamm. In each case the challenge to the
taxing and spending power was anchored to an alleged constitutional provision
restricting its exercise. The Tenth Amendment does not raise the challenge.
449 F.2d at pp. 1203-1205.
105
Conclusion
106 The constitutional issues of paramount concern to Mountain States, et al., relate
to the rights of the State of Colorado and all of its citizens. They have been
invoked by Mountain States, et al., in the context of a federal statute, the Clean
Air Act, which requires particular action on the part of the State of Colorado
(submission of a SIP which meets approval of the EPA Administrator) and
which, if not approved, triggers imposition of sanctions as a result of the failure
of the State to submit a plan meeting EPA standards. Thus, in truth, the State of
Colorado is the real party in interest. C.R.S. 1973, 24-31-101(1)(a) provides
that the Attorney General of the State of Colorado is to appear "for the state" in
all actions, civil and criminal, in which the State "is a party or interested" when
"required to do so by the governor." Here, the Attorney General was directed to
intervene on behalf of the State of Colorado by Governor Lamm on the basis
that "the State is interested". We must assume, of course, that the absolutely
conflicting position posited by the Attorney General to the panoply of serious
constitutional and statutory contentions so forcefully advanced by Mountain
States, et al., are views shared by Governor Lamm who directed the Attorney
General to intervene. The Colorado Supreme Court has held that C.R.S. 1973,
24-31-101(1)(a) grants the Attorney General the exclusive right, in the absence
of another statute providing otherwise, to represent the State in actions to

protect its interests. State Board of Pharmacy v. Hallett, 88 Colo. 331, 296 P.
540 (1937).
107 Following intervention, the Attorney General vehemently opposed all of the
constitutional challenges advanced by petitioners. His sole and only challenge
involved the possible imposition of limitations on federal financial assistance
and ban on construction. The Attorney General argues that in light of the good
faith efforts of the State in achieving compliance, the imposition of sanctions
during the 1980 legislative session would be arbitrary, capricious and
unreasonable. At no time, did the Colorado General Assembly request the
Attorney General to appear for the State and advance the contentions made
herein by Mountain States, et al. Nothing in the record indicates the enactment
of any resolution of declaration by the Colorado General Assembly indicating a
"consensus" with the contentions advanced by the twenty-seven legislators who
are petitioners herein. For standing purposes, "abstract injury" does not suffice
for the required "injury in fact". O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669,
38 L.Ed.2d 674 (1974).
108 Thus, on the state of the record before us, we must hold that the only party with
the requisite "standing" to challenge the actions of the EPA Administrator is the
State of Colorado, represented here solely by the Colorado Attorney General
by virtue of statutory and executive authority. The general rule is that, by virtue
of constitutional and/or statutory provisions or common-law power, the state
attorney general, as chief law officer of the state, is the exclusive legal
representative of the state in all litigation with regard to matters of public
interest, and he alone has the right to represent the state as to litigation
involving a subject matter of statewide interest. See 7a C.J.S. Attorney General
11(c) and cases cited; 7 Am.Jur.2d, Attorney General, 11 and cases cited.
Again, we pointedly observe that, with the exception of the threatened
imposition of sanctions by EPA, the State of Colorado flatly contradicts the
contentions of Mountain States, et al., that the State of Colorado, its citizens
and legislators, have suffered any constitutional harm or injury. The Attorney
General, to the contrary, vehemently contends that the State of Colorado has
not suffered any concrete injury as a result of the EPA Administrator's actions
under authority of the Clean Air Act. "Concrete injury, whether actual or
threatened, is that indispensable element of a dispute which serves in part to
cast it in a form traditionally capable of judicial resolution." Schlesinger v.
Reservists to Stop the War, 418 U.S. 208, 220-221, 94 S.Ct. 2925, 2932, 41
L.Ed.2d 706 (1974).
109 We take no position as to the utterly conflicting views involving the
constitutional and statutory challenges posited by Mountain States, et al. In

light of our ruling on the "standing" issue, the conflict does not present a
justiciable case. It does, of course, present sharp political and ideological
differences of substantial import. These are not matters, however, properly
directed to this Court for resolution in view of the fact that the only party with
standing to advance them has elected not to do so. The complaints registered
herein directed at the alleged unlawful actions of the EPA Administrator are, in
reality, complaints against the Congress of the United States which enacted the
Clean Air Act, as amended. The 1977 amendments to that Act included the
provisions directing administrative imposition of the sanctions.
110 On June 13, 1980, EPA proposed approval of the Governor's submittal of the
revised Colorado SIP relative to the motor vehicle emissions control program
and solicited comments on this action. See 45 Fed.Reg. 40167. The notice of
final rulemaking approving Colorado's automobile exhaust emissions control
program for inclusion in its SIP and removing the federal funding and
stationary source construction restrictions was executed under date of July 10,
1980. It was published and became effective July 16, 1980. See 45 Fed.Reg.
47682. As previously noted, the Colorado Attorney General has taken no
position on the mootness issue. We hold that the aforesaid final rulemaking
action does, under the circumstances of this case, render any and all contentions
raised and advanced by the State of Colorado, as intervenor, moot.
111 The petition for review is dismissed.

A non-profit corporation, organized "as a public interest law center dedicated to

bringing before the courts those issues vital to individual rights and freedoms
protected by the United States Constitution and the nation's legal traditions",
whose offices are in Denver, Colorado, on behalf of its officers, members, and
supporters who reside within the "nonattainment" areas affected by the
challenged action and in the remainder of the State of Colorado, and who are
being deprived of their constitutional and statutory rights

Indeed petitioners have not even responded, in their brief, to respondents'

arguments in its Memorandum in Opposition to Petition for Stay that they lack
standing in this case to make any constitutional arguments on behalf of the state