Ex parte GASP

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          Petition for Writ of Certiorari To the Court of Civil Appeals (Montgomery Circuit Court, CV-17-901677; Court of Civil Appeals, 2170489); Gregory O. Griffin, Sr., Judge.

         David A. Ludder, Tallahassee, Florida, for petitioner.

         David S. Maxey and Wade C. Merritt of Spain & Gillon, LLC, Birmingham, for respondent Jefferson County Department of Health Air Pollution Control Program.

         J. Alan Truitt of Kazmarek Mowrey Cloud Laseter LLP, Birmingham, for respondents Jefferson County Board of Health and its Board Members.

         OPINION

         MENDHEIM, Justice.

         GASP, 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

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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.

          I. Facts

         The Board is a county board of health established pursuant to § 22-3-1 et seq., Ala. Code 1975.^[1] 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 pollution ...."^[2]

         On 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.^[3]

          On July 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.

          On 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

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Board and various board members in their official capacities.

         The 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 ABC Coke.^[4]

          After a 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.

         The 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.

          II. 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 follows:

"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) ).

"More particularly, GASP appeals from the dismissal of its petition for judicial review of the Board’s decision. It is well settled that

" ‘[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

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possibly prevail. Nance, 622 So.2d at 299.’

"Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala. 2003)."

GASP, __ So.3d at __.

          III. Analysis

          A. Does The Air Control Act Preempt the AAPA?

          The 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).

         We 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.

         The 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 ...