PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
Montgomery Circuit Court, CV-17-901677; Court of Civil
an Alabama nonprofit corporation, filed a petition for a writ
of certiorari with this Court challenging the decision of the
Court of Civil Appeals in GASP v. Jefferson County Board
of Health, [Ms. 2170489, Aug. 10, 2018] So.3d (Ala. Civ.
App. 2018). The Court of Civil Appeals affirmed the
Montgomery Circuit Court's dismissal of GASP's
petition challenging a decision of the Jefferson County Board
of Health ("the Board") to amend its rules under
the under the Alabama Air Pollution Control Act of 1971,
§ 22-28-1 et seq., Ala. Code 1975 ("the
Air Control Act"). We granted GASP's petition for a
writ of certiorari in order to evaluate, among other things,
whether the Court of Civil Appeals correctly concluded that
the rule-making procedures of the Air Control Act preempt any
other rule-making procedures potentially applicable to the
Board, particularly the rule-making procedures of the Alabama
Administrative Procedure Act, § 41-22-1 et
seq., Ala. Code 1975 ("the AAPA"). We affirm
the judgment below, but on a different ground than that
propounded by the Court of Civil Appeals.
Board is a county board of health established pursuant to
§ 22-3-1 et seq., Ala. Code 1975. Pursuant to the
Air Control Act, the Board established the Jefferson County
Department of Health Air Pollution Control Program ("the
Air Program") in 1972. Section 22-28-23(d) of the Air
Control Act provides the Board with the authority to
"adopt and enforce any ordinance, regulation, or
resolution requiring the control or prevention of air
February 19, 2017, The Birmingham News published a
"Notice of Public Hearing" before the Board
regarding proposed revisions to Chapter 12 of the Jefferson
County Air Pollution Control Rules and Regulations
("Chapter 12"). The Board conducted a public
hearing on March 21, 2017. On April 19, 2017, at a Board
meeting, the Board adopted revised rules and regulations in
place of Chapter 12. More specifically, the Board deleted
Chapter 12 in its entirety and incorporated by reference the
"Rules of Procedure for Hearing Appeals of
Administrative Actions of the Alabama Department of
Environmental Management," which were adopted by the
Alabama Environmental Management Commission ("the
AEMC") and are contained in Chapter 335-2-1 of the
Alabama Administrative Code.
26, 2017, GASP submitted a petition to the Board seeking an
administrative decision that the repeal of Chapter 12 and the
adoption of new rules by the Board were invalid because the
Board did not comply with the notice and hearing requirements
of the AAPA.
September 6, 2017, the Board denied GASP's petition. As a
basis for the denial, the Board found that the AAPA did not
apply because the Board and the Air Program are not state
agencies as defined by the AAPA but, instead, are local
governmental units not subject to the AAPA. The Board also
found that it had substantially complied with the rule-making
procedures set forth in the Air Control Act in repealing and
replacing Chapter 12. GASP filed with the Board a notice of
intent to appeal and filed a petition in the Montgomery
Circuit Court seeking judicial review of the Board's
decision pursuant to §§ 41-22-11(b) and 41-22-20 of
the AAPA. In its petition, GASP named as defendants the Board
and various board members in their official capacities.
Board filed a motion to dismiss GASP's petition or, in
the alternative, to transfer the action to Jefferson County.
The Air Program filed a motion to intervene, alleging (1)
that it is composed of the group of individuals who enforce
and apply the [Jefferson County Air Pollution Control Rules
and] Regulations and (2) that it has specific interests that
are distinct from those of the Board. ABC Coke also filed a
motion to intervene. On January 4, 2018, the circuit court
granted the motions to intervene filed by the Air Program and
hearing, the circuit court entered an order granting the
Board's motion to dismiss. The circuit court found (1)
that the Air Program and the Board are not state agencies
subject to the provisions of the AAPA and (2) that the
declaratory-judgment provision of the AAPA is not the proper
procedural avenue for the relief sought by GASP. GASP filed a
notice of appeal to the Court of Civil Appeals.
Court of Civil Appeals affirmed the judgment of the circuit
court. See GASP v. Jefferson Cty. Bd. of Health,
[Ms. 2170489, Aug. 10, 2018], ___ So.3d ___ (Ala. Civ. App.
2018). The Court of Civil Appeals held that the AAPA does not
apply to the Board when it is performing its rule-making
function under the Air Control Act because "the Air
Control Act preempts the field" of air-pollution control
and that, therefore, the "specific rule-making
procedures provided for in § 22-28-23(b)(2) of the Air
Control Act ... control." GASP, ____ So.3d at
____. The Court of Civil Appeals pretermitted consideration
of whether the Board is a State agency subject to the AAPA.
Standard of Review
"In reviewing the Court of Civil Appeals' decision
on a petition for the writ of certiorari, 'this Court
"accords no presumption of correctness to the legal
conclusions of the intermediate appellate court. Therefore,
we must apply de novo the standard of review that was
applicable in the Court of Civil Appeals."' Ex
parte Exxon Mobil Corp., 926 So.2d 303, 308 (Ala. 2005)
(quoting Ex parte Toyota Motor Corp., 684 So.2d 132,
135 (Ala. 1996))."
Ex parte Wade, 957 So.2d 477, 481 (Ala. 2006). The
Court of Civil Appeals explained its standard of review as
"As we have previously explained, this court reviews the
judgment of a circuit court reviewing a decision of an
administrative agency 'without any presumption of its
correctness, since that court was in no better position to
review the order of the [agency] than we are.' State
Health Planning & Res. Dev. Admin. v. Rivendell of
Alabama, Inc., 469 So.2d 613, 614 (Ala. Civ. App. 1985)
(citing Vann Express, Inc. v. Bee Line Express,
Inc., 347 So.2d 1353 (Ala. 1977)).
particularly, GASP appeals from the dismissal of its petition
for judicial review of the Board's decision. It is well
"'[a] ruling on a motion to dismiss is reviewed
without a presumption of correctness. Nance v.
Matthews, 622 So.2d 297, 299 (Ala. 1993). [An appellate
c]ourt must accept the allegations of the complaint as true.
Creola Land Dev., Inc. v. Bentbrooke Housing,
L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in
reviewing a ruling on a motion to dismiss we will not
consider whether the pleader will ultimately prevail but
whether the pleader may possibly prevail. Nance, 622
So.2d at 299.'
"Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.
____ So.3d at ___.
Does The Air Control Act Preempt the AAPA?
Court of Civil Appeals affirmed the judgment of the circuit
court based on a conclusion that the Air Control Act preempts
the AAPA. The Court of Civil Appeals explained:
"Section 22-28-23(a) of the Air Control Act provides
that 'it is the intention of this chapter to occupy by
preemption the field of air pollution control within all
areas of the State of Alabama.' Accordingly, based on the
determination by the legislature that the Air Control Act
preempts the field, the specific rule-making procedures
provided for in § 22-28-23(b)(2) of the Air Control Act,
and by extension § 22-22A-8, control, and the Board was
not required to comply with the rule-making provisions of the
AAPA under the facts of this case."
GASP, ____ So.3d at ____ (footnote omitted).
disagree with the Court of Civil Appeals' interpretation
of § 22-28-23(a), Ala. Code 1975. That section
specifically states that it is the legislature's
intention for the Air Control Act "to occupy by
preemption the field of air pollution control within
all areas of the State of Alabama." (Emphasis added.)
The preemption at issue concerns rules and regulations that
address air-pollution control. Section 22-28-23(a) says
nothing about preempting administrative procedures for
challenging agency actions.
failure to include administrative procedures in the statement
of preemption in the Air Control Act is crucial because the
AAPA requires specific preemption of its requirements,
providing that it takes precedence over other statutes with
regard to administrative procedures unless there is an
express provision to the contrary in the AAPA or in the
pertinent statute. Specifically, § 41-22-25(a), Ala.
Code 1975, provides:
"(a) This chapter [i.e., the AAPA] shall be construed
broadly to effectuate its purposes. Except as expressly
provided otherwise by this chapter or by another statute
referring to this chapter by name, the rights created
and the requirements imposed by this chapter shall be in
addition to those created or imposed by every other statute
in existence on the date of the passage of this chapter or
thereafter enacted. If any other statute in existence on the
date of the passage of this chapter or thereafter enacted
diminishes any right conferred upon a person by this chapter
or diminishes any requirement imposed upon an agency by this
chapter, this chapter shall take precedence unless the
other statute expressly provides that it shall take
precedence over all or some specified portion of this named
Commentary to § 41-22-25 explains:
"'[T]he burden should be on those seeking an
exemption from the general principles embodied in the [Act]
to demonstrate clearly the necessity for an exemption, and
to have their claim for any such exception embodied in
unmistakable statutory language indicating that the
Legislature has actually considered the question of an
exemption and determined that it is warranted.'"
Bonfield, The Iowa Administrative Procedure Act:
Background, Construction, Applicability, Public Access
to Agency Law, the Rulemaking Process, 60 Iowa
L. Rev. 731, 756 (1975) (emphasis added).)
Forest Manor, Inc. v. State Health Planning &Development Agency, 723 So.2d 75, 78 (Ala. Civ. App.
1998),  ...