STATE OF MISSOURI ex rel. MISSOURI COALITION FOR THE ENVIRONMENT, et al., Appellants,
JOINT COMMITTEE ON ADMINISTRATIVE RULES, et al., Respondents.
from the Circuit Court of Cole County, Missouri Honorable
Patricia S. Joyce, Judge
DENVIR STITH, JUDGE.
appeal a judgment dismissing for mootness their action
challenging the Joint Committee on Administrative Rules'
(JCAR) authority to disapprove the "geographic
sourcing" provisions of a 2010 rule promulgated by the
Public Service Commission (PSC). Plaintiffs argue they are
entitled to an order compelling the Secretary of State to
issue a revised version of the 2010 rule that includes the
geographic sourcing provisions. Alternatively, they argue the
Court should require these provisions to be added to the 2015
rule that superseded the 2010 rule.
Court affirms the dismissal on mootness grounds without
reaching the question of JCAR's authority to disapprove
the portion of the 2010 rule in question. The PSC never
published the geographic sourcing provisions at issue in this
case, and they never became part of the 2010 rule. Moreover,
while this case was pending in the trial court, the PSC
issued an amended 2015 rule that did not include the
geographic sourcing provisions of the 2010 rule in question
here, and no challenge has been filed as to the 2015 rule. It
is within the discretion of the PSC and the Secretary of
State to issue an amended 2015 rule to supersede the 2010
rule. In light of the adoption of the 2015 rule, no purpose
would be served by addressing JCAR's actions regarding a
superseded prior rule. The trial court's judgment
dismissing this case as moot is affirmed.
November 4, 2008, the Missouri electorate approved
Proposition C, which established renewable energy standards
for investor-owned utilities. Proposition C later was
codified as sections 393.1020-393.1030, RSMo Supp.
2010. In January 2010, the PSC proposed
regulations implementing Proposition C's renewable energy
standards. The proposed regulations included provisions
requiring electric corporations to achieve escalating
percentages of their electricity sales with power obtained
from renewable energy sources. Under the proposed
regulations, utilities could demonstrate compliance with the
statute by registering and retiring a sufficient number of
"renewable energy credits" representing renewable energy generated or
purchased. 4 CSR 240-20.100(3). Subsections
240-20.100(2)(A) and (2)(B)2 of the proposed regulations,
referred to as the "geographic sourcing provisions,
" would have required the renewable energy credits to
represent electricity that was "sold to Missouri
customers." These geographic sourcing provisions form
the focus of Plaintiffs' lawsuit.
proposing a new rule, an agency must follow certain
rulemaking procedures set out in title 36, chapter 536, RSMo.
See §§ 536.021.1, 386.125. The agency must
first file a notice of proposed rulemaking concurrently with
the Secretary of State and with JCAR, and the notice shall be
published in the Missouri Register as soon as practicable.
§§ 536.021, 536.024.2, 536.073.5. The notice of
proposed rulemaking must contain the entire text of the
proposed rule and should specify a timeframe not less than 30
days after publication of the notice in the Missouri Register
within which anyone may file a statement in support of or in
opposition to the proposed rulemaking. § 536.021.2. The
agency may also solicit comments from the public about the
proposed rule before it files its final order of rulemaking.
§ 536.026. Normally, within 90 days after the end of the
notice and comment period, "the state agency proposing
the rule shall file with the Secretary of State a final order
of rulemaking either adopting the proposed rule, with or
without further changes, or withdrawing the proposed rule,
which order of rulemaking shall be published in the Missouri
Register." § 536.021.5. But the filing agency must
first submit the final order of rulemaking to JCAR, and it
cannot file the order with the Secretary of State until 30
days after such final order has been received by JCAR. §
536.024.3. During this 30-day period, JCAR may hold hearings
on the final order of rulemaking. Id.
proposed rule can become effective without submission to
JCAR, which has the authority to disapprove a rule in whole
or in part. § 536.073. JCAR shall report any
disapproved portion to the Missouri Senate and House of
Representatives, and that portion shall not take effect if
JCAR's action is ratified by resolution adopted in each
house within 30 legislative days after JCAR's
disapproval. § 536.073.9. Any portion of a proposed rule
that is disapproved shall not formally be filed with the
Secretary of State by the proposing agency or published by
the agency in the Missouri Register. § 536.073.8.
case, in January 2010, the PSC filed notice of the proposed
rule with the Secretary of State and with JCAR in accordance
with section 536.073.5. The text of this proposed rule
included the geographic sourcing provisions, and it was
published in the Missouri Register for notice and comment in
February 2010 as required by section 536.021.1. 35 Mo.
Reg. 365 (Feb. 10, 2010). After the comment period ended
in June 2010, the PSC filed with JCAR a final order of
rulemaking, including the two geographic sourcing provisions,
pursuant to section 536.024. JCAR held hearings concerning
the proposed rule and ultimately voted to disapprove the two
geographic sourcing provisions on July 1, 2010. JCAR also
sent a letter to the Secretary of State informing the
Secretary of its action. A few days later, the PSC submitted
a revised 2010 final order of rulemaking with the Secretary
of State and with JCAR. The transmittal letter stated that as
to the two geographic sourcing provisions, "in
accordance with section 536.073.8, the Commission is not
filing those sections for publication" with the
remainder of the rule, so those provisions would not become
effective. Instead, uncertain whether at some later point
provisions addressing geographic sourcing might be needed,
the PSC stated it was asking the Secretary of State to show
subsections (2)(A) and (2)(B)2 as "reserved" for
later use "in the event the Commission decides to amend
August 16, 2010, the Secretary of State published the revised
final 2010 rule in the Missouri Register. 35 Mo. Reg.
1183 (Aug. 16, 2010). That published 2010 rule did not
contain the geographic sourcing provisions. The revised 2010
rule became effective September 30, 2010. 4 CSR
end of January 2011, after the revised 2010 rule had already
become effective, the PSC issued an "Order Withdrawing
Geographic Sourcing Provisions (2)(A) and (2)(B)2 of 4 CSR
240-20.100 Pursuant to the Actions of JCAR" and stating
that it had not presented the provisions to the Secretary of
State and would not do so in the future. It further stated,
"The Commission is withdrawing those provisions and
again requests that [the geographic sourcing provisions] not
be published or become effective." The order was not
appealed and was published in the Missouri Register. 36 Mo.
Reg. 1002-1007 (Apr. 1, 2011).
the legislature reconvened for the 2011 session, it passed
Senate Concurrent Resolution No. 1, which disapproved the
withdrawn geographic sourcing provisions. The Governor
received the resolution but sent a letter to both chambers,
stating he did not sign or veto it because the PSC order
withdrawing the geographic sourcing provisions rendered the
resolution moot. The concurrent
resolution and the letter from the Governor were published in
the 2011 Missouri Register. 36 Mo. Reg. 1008-1011 (Apr. 1,
than two and one-half years later, in October 2013, Missouri
Coalition for the Environment, Missouri Solar Applications,
LLC, and Thomas J. Sager initiated an action against the
Secretary of State, JCAR, the PSC, and the Governor,
challenging JCAR's authority to disapprove the portions
of the 2010 rule as first proposed and promulgated by the
PSC. Plaintiffs recognized that sections 536.019, 536.021,
and 536.073 authorize JCAR to disapprove any rule or portion
of any rule filed by an agency but argued those statutes
violate the separation of powers clause set out in article
II, section 1, of the Missouri Constitution to the extent they allow a legislative
committee to suspend and veto administrative rules.
Defendants argued the case was moot because the PSC
voluntarily withdrew the geographic sourcing provisions
before the 2010 rule was published. They also cite
Missouri Coalition for the Environment v. Joint Committee
on Administrative Rules, 948 S.W.2d 125, 134 (Mo. banc
1997), and allege any constitutional issue was resolved by
section 536.073.9's requirement that the legislature pass
a concurrent resolution approving any disapproval which shall
be submitted to the Governor.
parties filed cross-motions for summary judgment. The trial
court initially granted the PSC's motion. Plaintiffs
appealed the decision to this Court, which dismissed the
appeal because the judgment was not final as to all parties.
Order Dismissing Appeal, State ex rel. Mo. Coal. for the
Env't v. Joint Comm. on Admin. Rules, Case No.
SC95100 (Mo. banc Nov. 17, 2015). In the meantime, the PSC
was undertaking new rulemaking in accordance with chapter
536's rulemaking procedures. The proposed new rulemaking
never contained geographic sourcing provisions. 40 Mo. Reg.
538-554 (May 1, 2015). After an appropriate notice and
comment period and submission to JCAR and the Secretary of