Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Keith v. Lefleur

Alabama Court of Civil Appeals

January 26, 2018

Anthony Keith, Ronald C. Smith, Esther Calhoun, William T. Gipson, and Latonya J. Gipson
v.
Lance R. LeFleur, in his official capacity as Director of the Alabama Department of Environmental Management, and Alabama Department of Environmental Management

         Appeal from Montgomery Circuit Court (CV-17-900021)

          MOORE, Judge.

         Anthony Keith, Ronald C. Smith, Esther Calhoun, William T. Gipson, and Latonya J. Gipson ("the plaintiffs") appeal from a judgment of the Montgomery Circuit Court ("the trial court") dismissing their complaint against Lance R. LeFleur, in his official capacity as Director of the Alabama Department of Environmental Management ("the director"), and the Alabama Department of Environmental Management ("ADEM"). We affirm the judgment in part and reverse it in part.

         Procedural History

         On January 9, 2017, the plaintiffs filed a complaint in the trial court against the director and ADEM, seeking declaratory and injunctive relief. They asserted, among other things, that the operating conditions approved by ADEM for certain landfills and wastewater-treatment facilities in their respective areas generate offensive odors and disease vectors that invade the property or home of each of the plaintiffs and diminish their health, quality of life, enjoyment of their property, and property value. The plaintiffs asserted that, like a majority of those people living within a mile of the facilities at issue, they are "Black/African-American" and that they had been subjected to the asserted conditions and discrimination because of their race.

         The plaintiffs asserted in their complaint that a federal regulation prohibits a recipient of financial assistance from the United States Environmental Protection Agency ("the EPA"), like ADEM, from using criteria or methods of administering its programs or activities that subject individuals to discrimination because of their race or color, among other things. See 42 U.S.C. § 2000; 40 C.F.R. § 7.35(b). They asserted that each recipient of the EPA's financial assistance is required to adopt grievance procedures to assure the prompt and fair resolution of complaints that allege a violation of that regulation. See 42 U.S.C. § 2000; 40 C.F.R. § 7.90(a). According to the complaint, to comply with the requirement that ADEM adopt grievance procedures, the director, or one of his predecessors, developed and adopted a document entitled "Memorandum 108: Procedure for Title VI or Environmental Justice Filing of Discrimination Complaints" on or about October 18, 2004, and another document entitled "ADEM Civil Rights and Environmental Justice Complaint Reporting and Investigating Process" on or about April 12, 2016 (hereinafter referred to collectively as "the documents").

         In count I of the complaint, the plaintiffs asserted that the documents are "rules, " as defined in Ala. Code 1975, § 41-22-3(9), and that they were adopted without substantial compliance with the notice and comment requirements of the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code 1975, and the notice and hearing requirements of the Alabama Environmental Management Act ("the AEMA"), Ala. Code 1975, § 22-22A-1 et seq., and that, as a result, the documents are invalid. Specifically, the plaintiffs asserted that the documents were adopted by the director or one of his predecessors without substantial compliance with Ala. Code 1975, § 41-22-5, which requires publication of notice of proposed rules before adoption and requires that all interested persons be given the opportunity to submit data, views, or arguments thereon before adoption, and that § 41-22-5(d), Ala. Code 1975, indicates that any rules adopted after October 1, 1982, are invalid "unless adopted in substantial compliance with this section." The plaintiffs further asserted in their complaint that the documents cannot be invoked by ADEM until all notices required by § 41-22-5 have been given. See § 41-22-4(b), Ala. Code 1975. They asserted that the adoption of the documents without substantial compliance with § 41-22-5 interferes with or impairs their legal rights to submit data, views, or arguments thereon and that the invalidity of the documents "threatens to interfere with or impair [their] interest in filing administrative complaints of discrimination that are cognizable" by ADEM and in obtaining valid administrative resolutions of their complaints that certain actions by ADEM had resulted in discrimination. The plaintiffs asserted that, but for the invalidity of the documents, they would utilize applicable procedures and processes to seek administrative resolutions of their complaints that ADEM's actions have resulted in discrimination. Finally, they asserted that, if the trial court were to grant the relief sought, "it is likely that [ADEM] will undertake efforts to adopt valid rules prescribing procedures and processes to comply with" federal regulations and would allow the plaintiffs to seek and obtain valid administrative resolutions of their complaints to ADEM. The plaintiffs applied much of that same reasoning to counts II through V. In count II, the plaintiffs asserted that the documents were adopted without substantial compliance with Ala. Code 1975, § 22-22A-8, which requires publication of notice on proposed rules, and that the documents are invalid as a result.

         In count III, the plaintiffs asserted that the documents promulgate rules for ADEM, which are required by § 22-22A-8(a) to be adopted and promulgated by the Environmental Management Commission ("the EMC") of ADEM. Because the documents were adopted and promulgated by the director or one of his predecessors, rather than the EMC, the plaintiffs asserted that they are invalid.

         In count IV, the plaintiffs asserted that the documents are "environmental policies" as that term is used in Ala. Code 1975, §§ 22-22A-5(3) and 22-22A-6(a)(3); that, according to § 22-22A-6(a)(3), it is the duty of the EMC to develop environmental policy for the state; and that, because the director or one of his predecessors, rather than the EMC, developed and adopted the documents, the documents are invalid.

         In count V, the plaintiffs asserted that no statute authorized ADEM to adopt rules such as those adopted in the documents and, thus, the documents prescribe procedures and processes that are in excess of the statutory authority granted to ADEM and are invalid.

         In count VI, the plaintiffs argued that ADEM is not authorized to grant variances, exceptions, or exemptions from the Solid Wastes and Recyclable Materials Management Act, Ala. Code 1975, § 22-27-1 et seq., or to approve the use of "alternative cover material" at landfills and, accordingly, they argued, Ala. Admin. Code (ADEM), Rules 335-13-4-.15(2), 335-13-4-.22(1)(a)1., and 335-13-4-.23(1)(a)1., are invalid. They argued that implementation of those allegedly invalid rules "threaten" to interfere with or impair their rights not to suffer offensive odors and disease vectors associated with the use of those materials.

         On February 13, 2017, the director and ADEM filed a motion to dismiss, asserting, among other things, that the plaintiffs had first attempted to overturn certain guidance documents and to challenge regulations in the Montgomery Circuit Court in case no. CV-16-900939, and that that action had been dismissed based on the director and ADEM's assertions of nonjusticiability, the plaintiffs' lack of standing to challenge the guidance documents, the plaintiffs' challenge to the regulations being a disguised attempt to bypass the appeal process, and ADEM's being protected by sovereign immunity. The director and ADEM asserted that the present case should also be dismissed for those same reasons. The plaintiffs responded to the motion to dismiss on March 10, 2017. On March 17, 2017, the case was reassigned to a different judge. On April 12, 2017, the trial court entered an order indicating that, having considered the motion to dismiss and the arguments of the parties at a hearing dated April 10, 2017, that motion was due to be granted, and the matter was dismissed. The plaintiffs filed their notice of appeal to the Alabama Supreme Court on April 25, 2017, and that court transferred the appeal to this court after determining that the case was within this court's appellate jurisdiction. This court subsequently transferred the appeal back to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

         Standard of Review

         In Pontius v. State Farm Mutual Automobile Insurance Company, 915 So.2d 557, 563 (Ala. 2005), our supreme court outlined the standard of review in cases in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.