Summary of a Recent
Judicial Development in
Environmental Law

Adoption of State Antidegradation Policies Must Be
in Compliance with Rulemaking Procedures

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Ex parte Legal Environmental Assistance Foundation, Inc., 832 So. 2d 61 (Ala. 2002), the Supreme Court of Alabama reversed and remanded the decision of the Montgomery Circuit Court, which had entered summary judgment for the Alabama Department of Environmental Management (ADEM). Plaintiff, the Legal Environmental Assistance Foundation (LEAF), challenged the implementation procedures for the water antidegradation policy adopted by ADEM. The instant court held that the implementation procedures were rules as defined by the Alabama Administrative Procedure Act (AAPA); therefore, ADEM could not legally adopt the procedures without complying with the rulemaking provisions of the AAPA and the Alabama Environmental Management Act (AEMA).

Background

The Federal Antidegradation Policy (FAP), 40 C.F.R. § 131.12, requires states to develop and adopt statewide antidegradation policies and identify methods for their implementation. LEAF sued ADEM on the theory that the Antidegradation Policy Implementation Procedures, Ala. Admin. Code ADEM Rule 335-6-10-.04(03), developed and adopted by ADEM were rules as defined in § 41-22-3(9), Ala. Code 1975, of the AAPA, and that ADEM did not adhere to the mandates of AAPA or AEMA governing promulgation of new rules. Id. at 62. ADEM successfully motioned for summary judgment. Id. at 63. Afterward, LEAF appealed to the Court of Civil Appeals, which affirmed without an opinion. Id. LEAF then filed the instant appeal. Id.

Arguments

On appeal, LEAF raised two issues: (1) whether the Antidegradation Policy Implementation Procedures were rules as defined by § 41-22-3(9), Ala. Code 1975, which ADEM could not legally adopt without complying with the rulemaking provisions of the AAPA and the rulemaking provisions of the AEMA in § 22-22A-8, Ala. Code 1975; and (2) whether the EPA required the adoption of particular antidegradation policy forms and procedures, and thereby created an exception to the definition of "rules." Id. at 63.

In response, ADEM argued that it did not need to comply with the rulemaking requirements because the Implementation Procedures were not rules as defined by the AAPA; therefore, no such compliance was necessary. Id. at 65.

Analysis and Holdings

The EPA, through FAP, required ADEM to adopt a statewide antidegradation program, but it did not force Alabama to adopt any specific policies, forms, methods, or procedures. Id. at 67. The only restriction that the EPA and the FAP placed on Alabama's antidegradation program was that it fit within federal parameters. Id.

The instant court reversed the judgment of the Court of Civil Appeals for three reasons: (1) the Implementation Procedures developed and adopted by ADEM, implementing the state antidegradation policy, prescribed pollution policy for the state of Alabama and described the procedure and practice requirements of ADEM for discharge permit applications; (2) the Implementation Procedures did not fit within the exception to the § 41-22-3(9) definition of "rule"; and (3) the statement in the EPA regional administrator's letter, stating that unless ADEM adopted procedures to implement the state antidegradation policy the EPA would publish proposed federal regulations, was persuasive that the Implementation Procedures were rules that required ADEM to comply with the rulemaking provisions of the AAPA and the AEMA. Id. at 66-67.

The case was decided on March 1, 2002.