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.
A. Ludder, Tallahassee, Florida, for petitioner.
S. Maxey and Wade C. Merritt of Spain & Gillon, LLC,
Birmingham, for respondent Jefferson County Department of
Health Air Pollution Control Program.
Truitt of Kazmarek Mowrey Cloud Laseter LLP, Birmingham, for
respondents Jefferson County Board of Health and its Board
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 Courts dismissal of GASPs 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
GASPs 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.
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.
September 6, 2017, the Board denied GASPs 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 Boards 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 GASPs 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
a hearing, the circuit court entered an order granting the
Boards 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.
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
"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 Boards 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
possibly prevail. Nance, 622 So.2d at 299.
"Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.
GASP, __ 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 legislatures 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
"(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 ...