           This opinion is subject to revision before final
                 publication in the Pacific Reporter

                            2017 UT 32


                               IN THE

     SUPREME COURT OF THE STATE OF UTAH

      UTAH PHYSICIANS FOR A HEALTHY ENVIRONMENT and
               FRIENDS OF GREAT SALT LAKE,
                        Petitioners,
                                  v.
       EXECUTIVE DIRECTOR OF THE UTAH DEPARTMENT
             OF ENVIRONMENTAL QUALITY and the
       DIRECTOR OF THE UTAH DIVISION OF AIR QUALITY,
                 in their official capacity, the
       UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY,
           the UTAH DIVISION OF AIR QUALITY, and
 HOLLY REFINING & MARKETING COMPANY—WOODS CROSS LLC,
                          Respondents.

                           No. 20150344
                        Filed June 19, 2017

         On Petition for Review of Final Agency Action

                            Attorneys:
Joro Walker, Charles R. Dubuc, Jr., Salt Lake City, for petitioners
         Utah Physicians for a Healthy Environment
                and Friends of Great Salt Lake

   Sean D. Reyes, Att’y Gen., Christian C. Stephens, Craig W.
 Anderson, Marina V. Thomas, Asst. Att’ys Gen., Salt Lake City,
for respondents Utah Department of Environmental Quality and
                 Utah Division of Air Quality
 Steven J. Christiansen, David C. Reymann, Cheylynn Hayman,
    Megan J. Houdeshel, Salt Lake City, for respondent Holly
      Refining & Marketing Company—Woods Cross LLC

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE ORME
                             joined.
                     UTAH PHYSICIANS v. DEQ
                       Opinion of the Court
            JUSTICE DURHAM filed a dissenting opinion.
   Having recused himself, JUSTICE PEARCE does not participate
     herein; COURT OF APPEALS JUDGE GREGORY K. ORME sat.


 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 This case presents a question parallel to that resolved in
Utah Physicians for a Healthy Environment v. Executive Director of the
Utah Department of Environmental Quality, 2016 UT 49, 391 P.3d 148
(“Utah Physicians I”). In both cases the Director of the Utah
Division of Air Quality approved a permit for a new project at an
oil refinery. And in both cases the Executive Director of the Utah
Department of Environmental Quality entered a final agency
action adopting the findings and conclusions of an Administrative
Law Judge and affirming the issuance of the permit. In both cases,
moreover, petitioners Utah Physicians for a Healthy Environment
(and others) sought to challenge the Executive Director’s final
action in a judicial proceeding.
  ¶2 In Utah Physicians I, we dismissed the petition for judicial
review of the Executive Director’s final action. We did so because
the petitioners formally sought to challenge the “Executive
Director’s final order” but failed to “actually address the alleged
errors in the Executive Director’s final order in their opening
brief.” Id. ¶ 18 (citing UTAH CODE § 63G-4-403). Thus, we
emphasized that our “jurisdiction is restricted by statute to a
review of the Executive Director’s” final action. Id. ¶ 2. And
because petitioners “altogether failed to address their opening
brief and arguments to the final order,” but “opt[ed] instead to
attack only the sufficiency of the” initial permitting decision of the
Director of the Division of Air Quality, we dismissed the petition
on procedural grounds. Id. We held, specifically, that petitioners
had failed to carry their “burden of persuasion” because they
nowhere identified “specific parts of the Executive Director’s final
order they believed were incorrect,” thus “dump[ing] the burden
of argument and research” on the court. Id. ¶ 19 (quoting State v.
Green, 2004 UT 76, ¶ 13, 99 P.3d 820).
  ¶3 The same problems are evident here. As in Utah Physicians I
the petitioners here are formally challenging the final action of the
Executive Director. But petitioners take the same fatal tack in their
briefing—they direct their arguments to the initial permitting
decision of the Director of the Division of Air Quality, and fail to

                                  2
                        Cite as: 2017 UT 32
                       Opinion of the Court
identify “specific parts of the Executive Director’s” final action
challenged on appeal. Id.
  ¶4 There is a lone reference to the Executive Director’s
decision in the argument section of petitioner’s opening brief—at
page 46, where petitioners criticize the Executive Director’s
characterization of the “emission modeling analysis” used by
Holly Refining and Marketing. But even on this point the
petitioners fail to carry their burden. They criticize the Executive
Director’s assessment of Holly’s emission modeling analysis
within her short-term air quality analysis. Yet they make no effort
to explain how that error threatens the viability of the Executive
Director’s final agency action. They instead use the criticism to
further demonstrate the purported flaws of the Director’s short-
term air quality analysis within the original permitting decision.
  ¶5 This is insufficient under Utah Physicians I. That decision
requires petitioners to carry the burden of identifying reversible
errors in the final action of the Executive Director—and of setting
forth grounds in the record facts or law for overturning that final
action. It is not enough for petitioners to direct their ire at the
Director’s initial permitting decision, leaving the “burden of
argument and research” on the court.
  ¶6 The Utah Physicians I decision was handed down after the
briefing but before the oral argument in this case. When
respondents cited that decision in a letter submitted under Utah
Rule of Appellate Procedure 24(j), petitioners offered no plausible
ground for distinguishing that decision. They effectively asked us
to reverse our position in Utah Physicians I and to adopt the
position of the dissent in that case instead. See Id. ¶¶ 51–
64 (Durham, J., dissenting) (asserting that the court should not
disregard arguments “that directly challenge[] the decision of the
fact-finder rather than the reasoning of an intermediate appellate
body” because the intermediate appellate body’s decision is
potentially persuasive at best). This we decline to do.
 ¶7 We reaffirm our decision in Utah Physicians I. And we
dismiss the petition for review in this case for reasons set forth in
our decision in that case.




                                 3
                    UTAH PHYSICIANS v. DEQ
                      Opinion of the Court
 JUSTICE DURHAM, dissenting:
 ¶8 For the reasons set forth in my dissenting opinion in Utah
Physicians for a Healthy Environment v. Executive Director of the
Department of Environmental Quality, 2016 UT 49, 391 P.3d 148, I
dissent.




                               4
