Utah Physicians for a Healthy Environment v. Executive Director of the Utah Department of Environmental Quality

2016 UT 49, 391 P.3d 148, 824 Utah Adv. Rep. 40, 2016 WL 6299508, 2016 Utah LEXIS 129

• Court: Utah Supreme Court
• Decided: October 26, 2016
• Docket: No. 20141132
• Status: Published

Opinions

On Appeal from Final Action of Administrative Agency

Justice Himonas,

opinion of the Court:

INTRODUCTION

¶ 1 This case concerns the decision of the Executive Director of the Utah Department of Environmental Quality (UDEQ) to dismiss a Request for Agency Action filed by Utah Physicians for a Healthy Environment and the Utah Chapter of the Sierra Club, the Petitioners in this action. In their Request for Agency Action, the Petitioners challenged a permit allowing certain changes at Tesoro Refining and Marketing Company’s Salt Lake City Refinery that was approved by the Director of the Utah Division of Air Quality (UDAQ).¹ The Petitioners believe that the Director of UDAQ conducted a legally insufficient analysis when he approved Tesoro’s changes at the refinery, and they therefore initiated a permit review adjudicative proceeding. As required by Utah Code section 19-1-301.5(5), the Executive Director appointed an Administrative Law Judge (ALJ) to conduct the permit review adjudicative proceedings. Upon completion of the proceedings, which took place over a nearly two-year period, the ALJ recommended that the Petitioners’ challenge be dismissed. The Executive Director adopted the ALJ’s findings of fact, conclusions of law, and proposed disposition and issued a final order dismissing each of the Petitioners’ arguments. The Petitioners appeal from the Executive Director’s final order.

¶ 2 We dismiss the Petitioners’ appeal. Our appellate jurisdiction is restricted by statute to a 'review of the Executive Director’s final order. Yet the Petitioners altogether failed to address their opening brief and arguments to the final order, opting instead to attack only the sufficiency of the actions of the Director of UDAQ. We would be forsaking our judicial role if we were to seek out errors in the final order on behalf of the Petitioners and to the detriment of the Respondents, which is in essence what the Petitioners are asking us to do. Thus, while the Petitioners’ substantive arguments may have merit, an issue on which we offer no opinion, we are in no position to ferret out the truth because the Petitioners have failed to meet their burden of persuasion on appeal.

¶ 3 The dissent would have us overlook the Petitioners’ briefing failure by “steptping] into the shoes of [the Executive Director] and review[ing] the fact-finder’s decisions ourselves.” The dissent also suggests that the Petitioners have “briefed at least one potentially meritorious claim that UDAQ erred.” There are significant problems with the dissent’s views. First, although we often look at the fact-finder’s decision to determine whether the intermediate appellate body erred, our jurisdiction is statutorily bound to a review of the Executive Director’s decision, which the Petitioners failed to address. The failure to address the Executive Director’s decision constitutes inadequate briefing. Second, the Petitioners have failed to show that one of their claims—namely, that UDAQ’s “best available control technology” analysis was legally inadequate—is a purely legal one, in part because they do not address the Executive Director’s findings of fact and conclusions of law on the issue.

BACKGROUND

¶ 4 In 2011, Tesoro filed a Notice of Intent (NOI) with UDAQ, requesting permission to modify the “Waxy Crude Processing Project” at Tesoro’s Salt Lake City Refinery. As part of this project, Tesoro wished to make changes to several pieces of equipment at the refinery. The equipment in question expels pollutants that are subject to state emissions regulations. In the NOI, Tesoro specified the expected increases in emissions from the refinery attributable to the project and explained the process used to calculate those increased emissions.

¶ 5 Tesoro stated that the increase in emissions for all pollutants but sulfur dioxide (S02) fell below the emission thresholds that trigger the more rigorous New Source Review program standards. Therefore, the majority of the project would be subject only to UDAQ’s minor source permitting program. For S02, Tesoro had to undertake an analysis to determine whether the total net emissions of S02 would be greater than the allowable Prevention of Significant Deterioration emission rate and thus trigger the stricter New Source Review program standards. In the NOI, Tesoro indicated that it would install a piece of equipment at its refinery to reduce S02 emissions. Because of that reduction, Tesoro determined that the net emissions of S02 would be low enough not to trigger the New Source Review standards. As a result, all the changes to the refinery would be subject only to UDAQ’s minor source permitting program rather than to the stricter New Source Review program.

¶ 6 Tesoro also had to determine whether its pollution control technology for the refinery’s emissions was at least the best available control technology (BACT).² For its BACT determination, Tesoro used a BACT analysis from 2007 that UDAQ had approved for the refinery. Tesoro determined that the technology at the refinery conformed to BACT requirements. It also concluded that its project was not subject to the Environmental Protection Agency’s new regulations under Subpart Ja of the New Source Performance Standards.

¶ 7 UDAQ reviewed Tesoro’s NOI and issued a Source Plan Review and an Intent to Approve for the project, As required by statute, UDAQ released the NOI, Source Plan Review, and Intent to Approve for a public comment period, The Petitioners filed comments during this period, expressing concern about the legal sufficiency of Tesoro’s and UDAQ’s analyses regarding the project. After reviewing the comments, UDAQ requested that Tesoro provide additional information, including more BACT analysis. Tesoro complied with this request by filing supplemental information responding to UDAQ’s concerns on. July 25, 2012. After reviewing all the materials, UDAQ approved Tesoro’s project on September 13, 2012. Subsequently, on October 15, 2012, the Petitioners filed a Request for Agency Action to initiate a permit review adjudicative proceeding for the Teso-ro project.³

¶ 8 On February 15, 2013, the Executive Director appointed an ALJ to preside over the permit review adjudicative proceeding and to issue a recommendation about what, if any, action should be taken by the Executive Director regarding the permit. The ALJ gave the Petitioners additional time and permission to supplement the record because Tesoro’s July 25, 2012 supplement was filed after the public comment period had closed. The Petitioners elected not to supplement the record. In addition to the briefing for the permit review adjudicative proceedings, the parties filed a number of written motions and responses relating to the proceedings, totaling hundreds of pages. After the parties briefed the case, the ALJ heard oral argument for several hours on February 26, 2014.

¶ 9 Once the permit review adjudicative proceedings concluded, the ALJ issued a proposed dispositive action on September 9, 2014. In that proposed dispositive action, the ALJ .wrote extensively regarding the Petitioners’ failure to preserve arguments and to marshal the evidence.⁴ He also wrote about the Petitioners’ failure to meet their burden of persuasion on the merits. The ALJ held that seven of the Petitioners’ arguments in the Request for Agency Action were waived or otherwise failed on the merits because of the Petitioners’ failure to address them in the briefing. The ALJ also found that the Petitioners “failed to carry their burden to overcome UDAQ’s BACT determination.” The Petitioners had the burden to identify an available control technology that UDAQ did not consider in its BACT analysis or to identify a specific emission limitation associated with any control technology, but the ALJ determined that the Petitioners failed to do either. The Petitioners argued that the ALJ should infer that UDAQ’s BACT analysis was insufficient because it maintained the status quo of emissions at the refinery, but the ALJ found that the argument was not tied to the specific facts of the case. Instead, the Petitioners relied on a single footnote in their brief consisting of a string of record citations, which the ALJ concluded was wholly insufficient to meet their burden. The ALJ also found that “UDAQ in fact reviewed Te-soro’s July 25, 2012 letter” and that it adopted Tesoro’s BACT analysis. The reasonable inference from this fact, according to the ALJ, was that “UDAQ was satisfied with Tesoro’s BACT analysis” that included the July 25 supplement.

¶ 10 The ALJ further concluded that the Petitioners failed to meet their burden to marshal the evidence. Based on this finding, the ALJ recommended that eleven of their remaining sixteen arguments be dismissed. For three of the remaining five arguments, the ALJ concluded that the Petitioners had failed to adequately preserve their arguments. Despite the Petitioners’ failure to preserve their arguments or meet their burden, the ALJ still addressed the merits of most of the arguments, concluding that the arguments failed on their merits as well.

¶ 11 Because the ALJ concluded that the Petitioners had failed to meet their burden, he recommended that the Executive Director dismiss their Request for Agency Action. On November 17, 2014, the Executive Director issued a final order incorporating the ALJ’s findings of fact and conclusions of law and adopting the ALJ’s recommendation of dismissal. The Petitioners subsequently .filed a petition for review of that decision with the Utah Court of Appeals on December 15, 2014. The court of appeals then certified the case to this court. We have jurisdiction over the appeal pursuant to Utah Code sections 63G-4-403 and 78A-3-102(3)(b).

STANDARDS OF REVIEW

¶ 12 Our authority to review final agency adjudications is set forth in part 4 of the Administrative Procedures Act. Utah Code § 630-4-403. Pursuant to that Act, we may grant relief if we determine “that a person seeking judicial review has been substantially prejudiced” (1) by “the agency ... erroneously interpret[ing] or applying] the law”; (2) by “agency action [that] is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court”; or (3)‘by “agency action [that] is: (i) an abuse of the discretion delegated to the agency by statute[,] (ii) contrary to a rule of the agency[,] ... or (iv) otherwise arbitrary or capricious.” Id. § 63G-4-403(4)(d), (g), (h). Wé bear in mind, however, that UDEQ, by statute, “has been granted substantial discretion to interpret its governing statutes and rules.” Id. § 19—1— 301.5(14)(c)(i) (2014).⁵ Also, we are required to “uphold all factual, technical, and scientific [UDEQ] determinations that are supported by substantial evidence viewed in light of the record as a whole.” Id. § 19—1—301.5(14)(c)(ii) (2014).

¶ 13 In this case, the burden of persuading us that these standards have been met falls squarely on the Petitioners. As explained below, the Petitioners have failed to meet this burden on appeal.

ANALYSIS

¶ 14 The first problem with the Petitioners’ challenge to the Executive Director’s final order is the manner in which the Petitioners chose to brief this matter. Both UDEQ and Tesoro call our attention to the fact that the Petitioners, in their opening brief, “fail[ ] to rebut any finding or conclusion in the [Executive Director’s] [flinal [o]r-der.” The Petitioners instead attack the actions of the Director of UDAQ, claiming that the Director’s BACT analysis was legally insufficient. As a result of the Petitioners’ failure to address the Executive Director’s final order in their opening brief, UDEQ and Tesoro claim that the Petitioners “cannot meet [their] burden on appeal and [that] this [c]ourt should affirm the [Executive Director’s] [flinal [o]rder” or “dismiss [the] Petitioners’ appeal.”⁶

¶ 15 In addition, UDEQ and Tesoro both move to strike large portions of the Petitioners’ reply brief that address the Executive Director’s final order because they violate rule 24(c) of the Utah Rules of Appellate Procedure. Specifically, UDEQ and Tesoro claim that the Petitioners’ reply brief violates rule 24(c) because it “raise[s] new issues and attempt[s] to cure legal deficiencies in [its] [o]pening [b]rief” by addressing its arguments to the Executive Director’s final order. The Petitioners counter that they are merely responding to new matters set forth, in UDEQ’s and Tesoro’s reply briefs, that the issues are jurisdictional and may be raised at any time, and that the arguments are merely a “recharacterization of the issues ... set[ ] forth in [their] [o]pening [b]rief.” The Petitioners thus claim that we may appropriately consider all of the arguments contained in their reply brief.

¶ 16 We hold that the Petitioners’ failure to appropriately address their opening brief and arguments to the Executive Director’s final order is fatal to them claim. Because the Petitioners failed to address the Executive Director’s final order and its incorporation of the ALJ’s findings, choosing instead to attack the Director’s actions, the Petitioners failed to meet their burden of persuasion on appeal. Ignoring this failure would, among other problems, require the court to comb through the record to ascertain whether an argument or a piece of evidence was presented to the ALJ, which would turn the court into the Petitioners’ advocate and deprive UDEQ and Tesoro of a fair appeal. In addition, the attempt to address portions of the Executive Director’s final order for the first time in the Petitioners’ reply brief is improper and prohibited. Therefore, we grant Tesoro’s and UDEQ’s motions to strike portions of the Petitioners’ reply brief. Furthermore, as a consequence of the Petitioners’ briefing failures, we do not reach the merits of the Petitioners’ arguments, and we dismiss the appeal.

A. The Petitioners Failed to Properly Challenge the Executive Director’s Final Order in Their Opening Brief and Thus Failed to Meet Their Burden of Persuasion on Appeal

¶ 17 Under Utah Code section 19—1—301.5(14)(a) (2014), “[a] party may seek judicial review ... of a dispositive action in a permit review adjudicative proceeding, in accordance with Section! ] ... 63G-4-403.” “Dispositive action” is defined in the statute as. “a final agency action that: (i) the executive director takes as part of a permit review adjudicative proceeding; and (ii) is subject to judicial review, .in accordance with Subsection (14).” Utah Code § 19-1-301.5(1)(a) (2014) (emphasis added). To succeed on appeal, the Petitioners must take issue with and demonstrate error in a final agency action under the standards of review set forth above. And they must do so in their opening brief. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (“It is well settled that ‘issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.’ ”) (citation omitted); see also infra ¶¶ 21-24.

¶ 18 Here, the Petitioners mention the Executive Director's final order in their opening brief only once, as part of their assertion that the “[f]inal [o]rder is owed no deference.”⁷ In their opening brief, the Petitioners instead argue that this court should “undertake an independent evaluation of the Director’s permitting decision. based on the administrative record.” The Petitioners technically appealed the Executive Director’s final order, but that technical compliance is not enough. The Petitioners must actually address the alleged errors in the Executive Director’s final order in their opening brief. Section 63G-4-403 authorizes us to review only ajfinal agency action—in this case, the Executive Director's final order. By failing to address the final order in their opening brief, the Petitioners made a review of the final order impossible:

In an instance where the court has appellate jurisdiction, an appellant must allege the lower court committed an error that the appellate court should correct. If an appellant does not challenge a final order of the lower court on appeal, that decision will be placed beyond the reach of further review. If an appellant fails to allege specific errors of the lower court, the appellate could; will not seek out errors in the lower court’s decision. In general, if a defendant has not raised an issue on appeal, [an appellate court] may not consider the issue sua sponte.

Allen, 2008 UT 56, ¶ 7, 194 P.3d 903 (alteration in original) (citation omitted) (internal quotation marks omitted).⁸

¶ 19 We will not seek out errors in the Executive Director's final order, which was the Petitioners’ burden on appeal, when the Petitioners have failed to properly and adequately do so. The Petitionei’s were required to support their contention that we should overturn the Executive Director's decision to dismiss their challenge to the Director of UDAQ’s approval of the Tesoro project. As part of their burden of persuasion, the Petitioners were required, in their opening brief, to indicate the specific parts of the Executive Director’s final order they believed were ineoirect and present suppoi^ing evidence. They completely failed to do so, and an appellant may not thereby “dump the burden of argument and research” on the appellate court. State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (internal quotation marks omitted).

¶ 20 Furthermore, a party fails to marshal at its own peril. See State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645 (reaffirming “the traditional principle of marshaling as a natural extension of an appellant’s burden of persuasion”). While we recently rejected the concept that a “technical deficiency in marshaling” would result in a “default,” we reiterated that without marshaling, a party “will almost certainly fail to carry its burden of persuasion on appeal.” Id. ¶¶ 41-42; see also State v. Roberts, 2015 UT 24, ¶ 18, 345 P.3d 1226 (stating that “like the marshaling requirement ... our adequate briefing requirement is not a 'hard-and-fast default notion,’ ” but that “appellants who fail to follow [the briefing] requirements will likely fail to persuade the court of the validity of their position”) (internal quotation marks omitted). The marshaling requirement we discuss here was a “natural extension of [the Petitioners’] burden of persuasion,” and without it they cannot hope to convince us that the Executive Director’s final order was faulty. Roberts, 2015 UT 24, ¶ 18, 345 P.3d 1226 (internal quotation marks omitted). Thus, we hold that the failure of the Petitioners to marshal the evidence in support of their arguments in their opening brief represents “a necessary component of our evaluation of the case.” Id. (internal quotation marks omitted). The Petitioners failed to meet this burden because they did not address their opening brief to the Executive Director’s final order.

¶ 21 The dissent suggests that the Petitioners were not on “notice that [their] appeal would not be resolved on the merits” because we do not cite rule 24 of the Utah Rules of Appellate Procedure for the proposition that the Petitioners were required to address their opening brief to the Executive Director’s final order. Infra ¶ 59. We need not rely on rule 24 to put the Petitioners on notice of their duty to address the intermediate appellate decision, because “[w]e have long held that we have discretion to not address an inadequately briefed argument.” Angel Inv’rs, LLC v. Garrity, 2009 UT 40, ¶ 35, 216 P.3d 944.⁹ And contrary to the dissent’s assertion, this is not the first time we have refused to consider briefing that fails to grapple with an intermediate appellate body’s decision.¹⁰

¶ 22 In Butterfield v. Okubo, we chided the appellants, whose brief had only a “sole complaint about the court of appeals’ decision” and mostly “attacked] the actions of the district court.” 831 P.2d 97, 101 n.2 (Utah 1992). After lamenting the occasions where “the briefs filed with this court appear to be only copies of those originally filed with the court of appeals,” we reiterated the scope of our jurisdiction in no uncertain terms: “[T]he briefs of the parties should address the decision of the court of appeals, not the decision of the trial court. To restate the matter: We do not grant certiorari to review de novo the trial court’s decision.” Id. But in Butterfield, unlike in the ease at hand, the appeal did not warrant dismissal because the appellants did raise one argument of error from the court of appeals, so we properly addressed only that issue on appeal. Id. at 101.

¶ 23 A similar issue arose in Allen v. Utah Department of Health, Division of Health Care Financing, 850 P.2d 1267 (Utah 1993). In Allen, the petitioner had appealed a final agency decision by the Utah Department of Health, Division of Health Care Financing to the court of appeals, which ruled against him, and then appealed to this court. Id. at 1268. In his statement of issues on appeal to us, the petitioner “attack[ed] [the department’s] actions” as well as the actions of the court of appeals. Id. at 1269 n.4. But the petitioner’s error in Allen was not fatal, because he specifically addressed the reasoning of the court of appeals in his brief. We reiterated that we would address the issues regarding the decision of the intermediate court but not review the fact-finding body’s decision de novo. Id. We therefore appropriately addressed only the petitioner’s arguments directed toward the court of appeals’ decision.

¶ 24 The Petitioners in this case have no such saving grace because they have failed to address the intermediate decision in any part of their argument. They have not raised even a “sole complaint” about, the intermediate decision. And we will not exceed the bounds of our jurisdictional authority to do so for them.

¶ 25 Nevertheless, the dissent argues that we should reach the merits to answer the question of whether UDAQ’s BACT analysis was legally inadequate. The dissent views this as a question of “legal adequacy of the analysis employed by UDAQ, not the absence of evidence to support its conclusions.” Infra ¶ 57. However, the Petitioners have not met their burden to support that conclusion. Instead, the argument here is factual.

¶ 26 The Petitioners first claim that the BACT analysis was legally inadequate based on assertions for which they fail to provide factual support. Specifically, the Petitioners assert that UDAQ did not include the July 25 supplement in its analysis and that the BACT analysis used by UDAQ was too old to be sufficient. This unsupported factual assertion is directly contradicted by the Executive Director’s finding that “UDAQ intended to adopt, and did adopt, as its own analysis, [the July 25 supplement],” a finding that the Petitioners completely ignore in their opening brief.¹¹ The ALJ also noted that UDAQ approved the project only after receiving the July 25 supplement and that it properly included the additional information from the supplement. This finding by the ALJ likewise directly contradicts the Petitioners’ legal assertions, yet it also goes unmentioned in the Petitioners’ brief. The Petitioners’ brief is silent as to any argument about why the Executive Director erred in finding that the Petitioners did not provide sufficient evidence, as well as to what level of scrutiny should apply to the Executive Director’s findings of fact and conclusions of law. This leaves the Petitioners’ opening brief woefully inadequate.

¶ 27 The Petitioners’ second argument regarding legal inadequacy also fails for lack of support. The Petitioners claim that the analysis based on the 2006 BACT emissions limitations was “on its face ... improper” but justify this claim with only guesswork, stating that “there is insufficient evidence ... to determine just how out of date the 2006 analysis is.” A party may not “support” its claim that an argument is one of legal sufficiency simply by ignoring evidence or an AL J finding to the contrary. The Petitioners may have intended to make a legal argument about the sufficiency of the BACT analysis, but instead they made only legal conclusions. Not surprisingly, we are far from the first court to require that parties adequately brief issues on appeal. See, e.g., Thummel v. King, 570 S.W.2d 679, 686 (Mo. 1978) (en banc) (refusing to consider an argument where the party “[did] not state [in the briefing where] and why the trial court erred”). We share the same concern as the Missouri Supreme Court in Thummel:

When counsel fail in their duty by filing briefs which are not in conformity with the applicable rules and do not sufficiently advise the court of the contentions asserted and the merit thereof, the court is left with the dilemma of deciding that ease (and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency. Courts should not be asked or expected to assume such a role. In addition to being inherently unfair to the other party to the appeal, it is unfair to parties in other cases awaiting disposition because it takes from them appellate time and resources which should be devoted to expeditious resolution of them appeals.

Id. If we were to ignore the Petitioners’ error and supplement the Petitioners’ inadequate brief with our own research and arguments, we would be abandoning our proper judicial function. This concern about proper judicial function is one of the reasons why a party “may [not] dump the burden of argument and research” on the appellate court. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (internal quotation marks omitted).

B. The Attempts by the Petitioners to Cure the Deficiency in Their Opening Brief by Addressing Portions of the Executive Director’s Final Order in Their Reply Brief and by Claiming the Deficiency Was “Harmless Error” Are Unavailing

¶ 28 The attempts by the Petitioners to overcome the error in their opening brief are unsuccessful. First, the Petitioners try to address portions of the Executive Director’s final order in their reply brief. Second, they attempt to overcome their briefing error at oral argument by insinuating that their opening briefs deficiency was “harmless error.”

¶ 29 The Petitioners first try to address portions of the final order in their reply brief, claiming that they are allowed to do so for three reasons: (1) they are merely responding to new matters set forth in UDEQ’s and Tesoro’s reply briefs, (2) the issues are jurisdictional and may be raised at any time, and (3) the arguments are merely a “recharacterization of the issues ... set[ ] forth in [their] [o]pening [b]rief.” Each of these contentions, however, is incorrect.

¶ 30 The first contention fails because Te-soro and UDEQ’s pointing out that the Petitioners failed to address the Executive Director’s final order in their opening brief is not a “new matter” under rule 24(c) of the Utah Rules of Appellate Procedure. See State v. Kruger, 2000 UT 60, ¶ 21, 6 P.3d 1116. Therefore, the fact that Tesoro and UDEQ highlighted that inadequacy does not entitle the Petitioners to address the Executive Director’s final order1 in their reply brief. See id. Furthermore, given our previous pronouncement that “[a]ppellees who rely solely on inadequate briefing arguments ... assume a considerable risk of defaulting on appeal” and the Petitioners’ complete failure to challenge the Executive Director’s filial order in their opening brief, UDEQ and Te-soro were forced in their responsive briefs to address the multiple grounds upon which the Executive Director rejected the Petitioners’ claims in the final order. Roberts, 2015 UT 24, ¶ 19, 345 P.3d 1226. Had they not done so, UDEQ and Tesoro would have risked “that we would disagree with [their] assessment of the adequacy of [the Petitioners’] briefing and thereby forfeit [their] chance-to respond to the merits of [the Petitioners’] claims.” Id. ¶ 20. Therefore, we will neither fault UDEQ or Tesoro for complying with their briefing obligations nor reward the Petitioners for their failure to comply with their briefing obligations, by considering the Petitioners’ arguments in their reply brief that deal with the Executive Director’s final order for the first time on appeal. To hold otherwise would turn the briefing process on its head.

¶ 31 The Petitioners’ second contention, characterizing the issue as one of “subject matter jurisdiction,” is also erroneous. In their responsive briefs, Tesoro and UDEQ did not claim that this court lacked subject matter jurisdiction over the Petitioners’ appeal. Instead, they argued that the Petitioners had failed to meet their burden on appeal by failing to address their opening brief to the Executive Director’s final order. Therefore, the Petitioners’ contention that the issues are jurisdictional is based on a false premise and is incorrect.

¶ 32 Finally, the attempt by the Petitioners to address the Executive Director’s actions for the first time in their reply brief is not a mere “recharacterization of the issues ... set[ ] forth in [their] [opening [b]rief,” This oversight is not merely a matter of word choice. The Petitioners’ opening brief addresses only the Director’s actions; the Executive Director’s final order is merely mentioned once. The Director’s actions were litigated before the ALJ, and now, on appeal, we are to consider the Executive Director’s final order, which incorporated the findings of the ALJ. This court does not “go back” to before the final order and before the ALJ’s findings and conclusion and reconsider the actions of the Director, see supra ¶ 18 n.7; rather, we concern ourselves with what errors, if any, the Executive Director made in the final order.¹² We cannot determine whether there are errors in that final order based on the Petitioners’ opening brief because it altogether fails to address the final order except for stating that the “[f]inal [o]r-der is owed no deference.” Therefore, the attempts by the Petitioners to address the Executive Director’s final order in their reply brief “were not presented in the opening brief [and] are considered waived and will not be considered by [this court].” Allen, 2008 UT 56, ¶ 8, 194 P.3d 903 (internal quotation marks omitted).

¶ 33 For these reasons, we conclude that UDEQ’s and Tesoro’s motions to strike portions of the Petitioners’ reply brief are well taken and grant the motions to strike the sections that address the Executive Director’s final order for the first time. Those sections include Parts II.A, II.B, III.E, III.F, III.G, III.H, IV.B, V, and VI. We determine that the remaining sections Tesoro moved to strike are rendered moot, and thus we do not address them.

¶ 34 After them attempt to overcome their briefing error by addressing the final order in their reply brief, the Petitioners made a second attempt to overcome them briefing error, this time by insinuating at oral argument that their opening briefs deficiency was “harmless error.” At oral argument, the Petitioners insisted that even if they did not address the Executive Director’s final order in their opening brief, they met their burden by showing that the Director’s actions were invalid, arguing that “any decision upholding an invalid decision must be invalid.” But the Petitioners’ error was not “harmless.”¹³

¶ 35 Before the appeal reached this court, the Director of UDAQ issued an approval order for the Tesoro project, and that decision was subject to nearly two years of litigation, which involved over 350 pages of briefing and several hours of oral argument and resulted in a 4,500-page record. Based on these proceedings, the ALJ issued a 102-page recommendation, which was incorporated into the Executive Director’s final order. Tesoro has a valid concern that all of this previous litigation would be rendered meaningless if the Petitioners were permitted to “go back” and argue over the Director’s initial actions regarding the permitting decision. Those issues have already been litigated before the ALJ. The question on appeal is what errors, if any, the Executive Director made in the final order, which incorporated the ALJ’s findings. The Petitioners may not merely ignore all the previous litigation on the basis of its assertion that the Executive Director’s “[f]inal [o]rder is owed no deference.” As Tesoro indicated, UDEQ and Teso-ro were “entitled” to be presented with the specific arguments that the Petitioners believed were incorrect from the ALJ’s findings as incorporated into the Executive Director's final order. In fact, this was exactly what the Petitioners’ burden was on appeal. Tesoro correctly observed that “[a]ll of the legal and factual findings upon which the Executive Director relied to reject [the] Petitioners’ claims were clearly stated in the [f]inal [o]r-der. If [the] Petitioners wanted to challenge those findings, it was fundamentally incumbent upon [the] Petitioners to identify those findings and argue how those findings were in error[ ] in their [o]pening [b]rief.”

¶ 36 By failing to engage with the Executive Director’s incorporation of the ALJ’s findings, the Petitioners fail to meet their burden of persuasion because there is no way for us to determine what the alleged errors of the final order are when those errors have not, in fact, been alleged, and absent such errors we cannot rule in the Petitioners’ favor.¹⁴ Instead, the court is left to wonder what issue the Petitioners may have had with the ALJ’s findings as incorporated by the Executive Director’s final order. We agree with UDEQ and Tesoro that the Petitioners cannot meet their burden of persuasion on appeal by addressing the Director’s actions rather than the Executive Director’s final order.

¶ 37 In addition, the court cannot overlook the Petitioners’ failure because this would require the court to review the entire record, see what arguments were made in the Petitioners’ opening brief, ensure that the same arguments were made before the ALJ, and ensure that the same evidence was shown to the ALJ. Not only would this be a major disadvantage to the Respondents, who would have no idea what findings the court is reviewing, but as stated above, the Petitioners “may [not] dump the burden of argument and research” on the appellate court. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (internal quotation marks omitted).

¶ 38 Therefore, the Petitioners’ “harmless error” argument also must fail because the Petitioners’ failure to engage with the ALJ’s findings as incorporated by the Executive Director’s final order is a complete failure to meet their burden of persuasion. The Director’s actions were beyond the reach of direct review once the proceedings before the ALJ concluded and the Executive Director issued her final order. Instead, the Petitioners’ burden was to engage with the ALJ’s findings as incorporated in that final order and direct the court to the errors, if any, therein. Absent such an exercise by the Petitioners, this court is forced to dismiss their appeal because it cannot seek out such errors on the Petitioners’ behalf.

CONCLUSION

¶ 39 Because the Petitioners did not address alleged deficiencies in the Executive Director’s final order in them opening brief, choosing instead to attack the actions of the Director, they failed to meet them burden of persuasion on appeal. The Petitioners may not address the Executive Director’s final order in their reply brief for the first time, and the failure to address that final order was not “harmless error.” Thus, we dismiss the Petitioners’ appeal. In so doing, we emphasize that we are not considering the merits of the Petitioners’ arguments and that nothing in this opinion should be interpreted as affirming or endorsing the actions of UDAQ or UDEQ based on the substance of the arguments made.

Justice John A. Pearce became a member of the Court on December 17, 2016, after oral argument in this matter,' and accordingly did not participate.

1 . For ease of reference, we refer to Utah Physicians for a Healthy Environment and the Utah Chapter of the Sierra Club collectively as the Petitioners, the Director of UDAQ as the Director, the Executive Director o£ UDEQ as the Executive Director, and Tesoro Refining and Marketing Company as Tesoro.

2 . In the NOI, Tesoro noted that both Utah and federal law require a BACT analysis “for new emission units and existing emission units where there is a physical modification and an increase in emissions.” See Utah Admin. Code r. 307-401-5(d) (requiring "[a]n analysis of best available control technology for the proposed source or modification”).

3 . The Request for Agency Action is a request for administrative review of the agency's decision to issue the approval order for the permit. See Utah Code § 19-1-301.5(5) (2014).

4 . In his First Prehearing Order, the ALJ instructed that "the party with the burden of proof on any issue will be held to a stringent requirement to marshal all of the applicable evidence, issue by issue, in the Administrative Record.” The ALJ further noted that the Petitioners had the burden of proof in the proceeding and that ”[w]ithout marshaling all of the record evidence in the first instance, it would be impossible for the [ALJ] to determine whether the disputed issue is or is not supported by ‘substantial evidence’ in the administrative record.” Thus, the ALJ adopted the marshaling requirement as part of his authority under Utah Code section 19-1-301.5(9)(f) (2014).

The Petitioners argue in their reply brief before this court that the preservation and marshaling requirements incorporated by the ALJ through Utah Code section 19—1—301.5 (2014) do not apply to them because they did not become law until May 8, 2012, after the public comment period began on February 21, 2012, and after the Petitioners filed their comments on April 23, 2012. This contention is without merit. The Petitioners fail to acknowledge that UDAQ extended the public comment period until June 7, 2012, "in response to a new law, Utah Code Ann. §19-1-301.5, which changes the adjudicative proceedings for permits and becomes effective on May 8, 2012.” The Petitioners themselves took advantage of this extension by filing- additional comments on June 6, 2012. The Petitioners did not challenge the applicability of section 19—1— 301.5 before the ALJ or in their opening brief before this court. We also note that this argument is at odds with the Petitioners’ jurisdictional basis for the appeal, namely section 19—1— 301.5. Finally, statutes like section 19-1-301.5, which are procedural and "enacted subsequent to the initiation of a suit [and] which do not enlarge, eliminate, or destroy vested or contractual rights[,] apply not only to future actions, but also to accrued and pending actions as well.” Pilcher v. State, Dep’t of Soc. Servs., 663 P.2d 450, 455 (Utah 1983) (citation omitted); see also Brown & Root Indus. Serv. v. Indus. Comm'n of Utah, 947 P.2d 671, 675 (Utah 1997); Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995); Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1020 (Utah 1995). Thus, section 19-1-301.5, and all of its requirements, was applicable to the Petitioners' claims.

5 . Throughout this opinion, we often cite to the previous version of this statute, the same version the parties cite to in their briefs. This statute was amended in 2015, with the changes taking effect in May 2015. See Utah Code § 19-1-301.5. With respect to the provisions at issue in this appeal, the changes are not substantive.

6 . We note that the Petitioners have eomplied with the requirements of Utah Code section 19-1-301.5(14)(a) (2014) by appealing the Executive Director’s final order, thereby technically satisfying the jurisdictional requirements of the statute. But, as discussed below, this technical compliance does not absolve the Petitioners of their burden of persuasion on appeal.

7 . While the question of whether deference is owed to the Executive Director is more appropriately viewed as a question regarding the appropriate standard of review, which we have already laid out above, supra ¶ 12, we take the time to address the assertion by the Petitioners and the dissent that the Executive Director is owed no deference. See infra ¶¶ 52-53. The question of whether deference is owed to the Executive Director "depends on the 1ype of [agency] action in question.” Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 22, 308 P.3d 461. For questions of law, "the question ... has a single ‘right’ answer” and we afford the agency no deference on such questions. Id. ¶ 33. However, for mixed questions of law and fact, "we sometimes afford deference to [an agency's] decision as a matter of institutional competency.” Id. And "[findings of fact are entitled to the most deference.” In re Adoption of Baby B., 2012 UT 35, ¶ 40, 308 P.3d 382. We agree with the dissent that we often "must step into the shoes of the intermediate appellate court or tribunal and review the fact-finder’s decisions ourselves under the appropriate standard of review.” Infra ¶ 52.

However, the fact that we may or may not grant deference to the Executive Director is beside the point. At issue here is not whether we owe deference to the Executive Director, but whether the Petitioners have met their burden of persuasion on appeal. By statute, the Petitioners have the burden to point us to errors in the Executive Director’s final order specifically. The Petitioners fail to direct us to errors contained in the Executive Director’s final order, and we cannot search for errors on Petitioners’ behalf. See State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820.

8 . We disagree with the dissent as to whether the procedural posture here, versus in Allen v. Friel, 2008 UT 56, 194 P.3d 903, offers any sort of meaningful distinction. See infra ¶¶ 60-63. We note that the level of appellate deference did not affect our holding in Allen as we dismissed the appellant's challenges not just to the lower court's factual findings but also to the lower court’s legal conclusions, which we reviewed "for correctness without deference to the lower court.” Allen, 2008 UT 56, ¶ 5, 194 P.3d 903.

We also note that while the appeal characterizes both the Executive Director's and ALJ’s decisions as "intermediate appellate decisions,” the ALJ enjoys certain powers more characteristic of a trial-level tribunal. See Utah Code § 19—1—305.1(11)(a) (authorizing fact-finding by the ALJ).

9 . The plain language of Utah Code section 19—1—301.5(14)(a) informed the Petitioners that they could seek judicial review only of a dispositive agency action. By appealing the Executive Director’s final order, the Petitioners clearly indicated that they understood that their appeal was predicated upon that order. And all parties are certainly on notice that they must meet their burden of persuasion to convince the appellate court to rule in their favor on appeal. See, e.g., id. § 63G—4-403. Yet despite their understanding that their appeal was tied to the Executive Director’s final order, the Petitioners do not address that final order in their opening brief beyond the assertion that it is "owed no deference.”

As a result, the Petitioners fail to convince us that the final order contains reversible error. The Petitioners' failure to meet their burden of persuasion is inextricably connected to the way they chose to brief this case before the court. See State v. Roberts, 2015 UT 24, ¶ 19, 345 P.3d 1226 (”[O]ur adequate briefing requirement is not a ’hard-and-fast default notion.’ Instead, it is a 'natural extension of an appellant’s burden of persuasion.’ ” (citations omitted)). The Petitioners’ inadequate briefing resulted in an improper "statement of the issues presented for review" and of "the standard of appellate review.” Utah R. App. P. 24(a)(5). We have held that we have discretion in determining compliance with the “standard for adequate briefing," and "we assess the adequacy of a brief not as a matter of gauging procedural compliance with the rule, but as a necessary component of our evaluation of the case on its merits.” Roberts, 2015 UT 24, ¶ 18, 345 P.3d 1226 (internal quotation marks omitted). Therefore, the Petitioners were clearly on notice that their appeal was tied to the disposi-tive agency action, and their appeal indicates that they understood the dispositive agency action to be the Executive Director’s final order. See Utah Code § 19-1-301.5(14).

Furthermore, the Petitioners were clearly on notice that on appeal they would be required to meet their burden of persuasion to convince us that there was reversible error in the dispositive agency action. See id.; see also id. § 63G-4-403. The Petitioners understood the Executive Director's final order to be the dispositive agency action in this case, and they cannot escape their burden of persuasion to convince us that the final order contains reversible error by arguing the final order is owed no deference. See State v. Roberts, 2015 UT 24, ¶ 18, 345 P.3d 1226 (noting that adequate briefing requirement is a "natural extension of an appellant's burden of persuasion") (internal quotation marks omitted); see also Utah Code § 63G-4-403(4) (appellant’s burden to show prejudice in appeal of final agency action). The dissent does not dispute that a party “may [not] dump the burden of argument and research” on the appellate court. Green, 2004 UT 76, ¶ 13, 99 P.3d 820 (citation omitted). And this is precisely what the Petitioners have done by failing to address the Executive Director’s final order in their opening brief. Thus, regardless of rule 24’s briefing requirements, it is evident based on our case law and the statutoiy basis for the Petitioners' appeal that the Petitioners were on notice that they would be required to address the Executive Director’s final order in their opening brief.

10 . In effect, we hold that an appellant's failure to grapple with an intermediate appellate review will often be fatal due to lack of preservation. As the dissent admits, ”[a]ppellants cannot prevail in this court on an issue they did not raise or did not adequately raise in an intermediate appeal.” Infra ¶ 55.

11 . The Petitioners objected to the July 25 supplement for the first time at oral argument before the ALJ. The July 25 supplement was added after the public comment period had ended, so the ALJ "opened the administrative record ... to allow Petitioners the opportunity to submit any additional evidence ... [and] make any and all legal arguments regarding the substance of the BACT analysis.” The Petitioners chose not to do so, and the ALJ found that even at oral argument, the Petitioners failed to offer specific evidence in objection to the July 25 supplement.

12 . We note that a line of cases regarding appellate review of a district court's judgment in an administrative decision seems at first glance to take a different tack. These cases state that "[wjhen a district court's review of an administrative decision is challenged on appeal and the district court's review was limited to the record before the board, we review the administrative decision just as if the appeal had come directly from the agency.” Wells v. Bd. of Adjustment of Salt Lake City Corp., 936 P.2d 1102, 1104 (Utah Ct. App. 1997) (internal quotation marks omitted); see also Fuller v. Springville City, 2015 UT App 177, ¶ 11, 355 P.3d 1063. But see BMS Ltd. 1999, Inc. v. Dep't of Workforce Servs., 2014 UT App 111, ¶ 5 n.2, 327 P.3d 578 (limiting the court of appeals’ review to the final agency action and reviewing the underlying decision "only to the extent that the [agency] relied upon it”).

We distinguish our holding today in several ways. First, Utah Code section 63G-4-403 expressly limits our review to the final agency action. We "do not enjoy unlimited power to review the actions of ... administrative agencies” because "[tjhe scope of appellate court authority is bounded by ... statutory grants of jurisdiction,” State v. Lara, 2005 UT 70, ¶ 10, 124 P.3d 243.

Second, the cases about appellate review of a district court’s judgment in an administrative decision stem from our holding in Bennion v. Utah State Board of Oil, Gas & Mining, where we clarified that when reviewing agency actions, we extend no deference to the intermediate body only in cases where "the lower court's review of the administrative record is not more advantaged titan the appellate court’s review.” 675 P.2d 1135, 1139 (Utah 1983). But our case today is not one where the issue of expertise would pit judge against judge, where both are in an equal position to make a determination. Rather, we are reviewing the decision of the Executive Director, whose technical expertise is reflected in the statute regarding permit review adjudicative proceedings. See Utah Code § 19—1—301.5(13)(e) (2014) ("The executive director may use the executive director's technical expertise in making a determination.”). This deference is also reflected in our test for reviewing mixed questions of law and fact, where we consider

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court's application of the legal rule relies on "facts” observed by the trial judge[;j .,. and (3) other "policy reasons that weigh for or against granting [deference] to trial courts.”

Murray, 2013 UT 38, ¶ 36, 308 P.3d 461 (second alteration in original) (citation omitted). Although the second factor does not apply in this case, the first and third factors weigh strongly in favor of providing deference to the agency because "technical ] and scientific” determinations provide much of the basis for the executive director’s decision. See Utah Code § 19-1-301.5(14)(c)(ii) (2014).

Third, regardless of how much deference we extend, any issue still must be preserved at both the fact-finding and intermediate appellate levels). See Fuller, 2015 UT App 177, ¶ 14, 355 P.3d 1063 (declining to reach an argument that was presented to the district court but not the agency). Here, the ALJ determined that the Petitioners failed to preserve seven of their arguments at the intermediate level; they may not resurrect those claims now. We note that even the dissent agrees that for us to properly reach an issue, it must have been passed through at each level below. See infra ¶ 55 (“Appellants cannot prevail in this court on an issue they did not raise or did not adequately raise in an intermediate appeal.”).

13 . The dissent appears to adopt this “harmless error” formulation of the Petitioners' argument. See infra ¶ 58 ("Because the ALJ performed the function of an appellate court, these two formulations of [the Petitioners'] argument are functionally the same.”). We cannot agree with the dissent's characterization of this issue. Once again, the Petitioners' burden of persuasion on appeal was to show reversible error in the dis-positive agency action. See Utah Code §§ 19—1—301.5(14)(a) (2014), 63G-4-403. Instead, the Petitioners failed to address the dispositive agency action, the Executive Director’s final order, other than asserting that it was "owed no deference.” As stated above, the level of deference owed to the Executive Director’s final order does not address the question of whether there is reversible error in the final order, which is necessary for us to be able to find in the Petitioners’ favor. See supra ¶ 18 n.7. And the dissent omits crucial context when noting that ”[t]he correctness of the [intermediate appellate body's] decision turns, in part, on whether it accurately reviewed the [fact-finding] court's decision.” Infra ¶ 52 (quoting Yuanzong Fu v. Rhodes, 2015 UT 59, ¶ 12, 355 P.3d 995). In State v. Levin, we prefaced that quote with a reminder that “we review for correctness the decision of the [intermediate appellate body], not the decision of the [fact-finding] court.” 2006 UT 50, ¶ 15, 144 P.3d 1096. Therefore the Petitioners' arguments regarding error by the Director were not "functionally the same” as arguing that there was reversible error in the dispositive agency action. Consequently, the dissent's characterization of this issue cannot stand.

14 . The dissent characterizes our opinion as requiring the Petitioners to address the ALJ’s decision. See infra ¶ 51. However, we focus on more than just the Petitioners' failure to address the ALJ’s decision in and of itself. Instead, the extent to which we criticize the Petitioners for failing to address the ALJ’s decision is predicated upon the Executive Director’s adopting the ALJ’s findings and incorporating them into her final order. Utah Code section 19-1-301.5(14)(a) (2014) permits a party to seek judicial review of a dispositive action, and no party disputes that the dispositive action in this case is the Executive Director's final order, including its incorporation of the ALJ's findings.