Lead Opinion
In December 1997, the Board of Regents of the University System of Georgia sold 297 acres of real property to the Development
The trial court dismissed appellants’ complaint after finding that the sale of 297 acres did not meet the statutory definition of “a proposed governmental action which may significantly adversely affect the quality of the environment” and, even if it did, the decision of the responsible government official did not create a cause of action on behalf of the two plaintiff corporations. See OCGA § 12-16-5 (c). The trial court denied the request for declaratory relief, finding that the parties did not face uncertainty since all the conduct had occurred. The trial court declined to exercise its equity power to set aside the deed, finding that the Board of Regents had complied with GEPA, and that appellants had taken no legal action until six months after the sale was completed, though they had been aware of the proposed sale five months before it occurred. The trial court denied the request for mandamus because the responsible government official had not abused his exercised discretion, and the decision to proceed with the proposed governmental action did not create a cause of action in the plaintiffs. Id. This Court granted appellants’ application for discretionary review and posed the following questions:
1. Does OCGA § 12-16-5 (c) bar plaintiffs’ action challenging the decision of the responsible government official that the proposed governmental action at issue was not a “proposed governmental action which may significantly adversely affect the quality of the environment?”
2. If OCGA § 12-16-5 (c) does not bar the action, what remedy is available for plaintiffs to challenge the responsible government official’s determination that a proposed governmental action is not one which may significantly adversely affect the environment’s quality?
3. What standard of review applies to the superior court’s review of the responsible government official’s decision?
4. Applying that standard, was the superior court correct in affirming the decision of the responsible government official?
GEPA requires the “responsible official” of a “government agency” to determine if a “proposed governmental action” is “a proposed governmental action which may significantly adversely affect the quality of the environment.”
It is clear that the sale of more than five acres of state-owned land is a “proposed governmental action” under OCGA § 12-16-3 (7) and that, under OCGA § 12-16-3 (5), the Board of Regents is a “government agency” subject to GEPA. Compare Thornton v. Clarke County School District,
The decision of the responsible official to proceed with the proposed governmental action shall not create a cause of action in any person, corporation, association, county, or municipal corporation; provided, however, the actions of the responsible official in the procedure of giving notice by publication of the environmental effects report and notice by publication of the decision made based upon the report and public comments, if any, may be challenged pursuant to . . . the “Georgia Administrative Procedure Act” if the responsible official acts on behalf of a government agency which is subject to that act or by mandamus otherwise; but any such challenge must be commenced within 30 days after the date notice of the responsible official’s decision ... is first published in a legal organ of any affected county or counties.
Contained within the subsection is a clear statement that the responsible official’s decision to proceed with the proposed governmental action does not create a cause of action, followed by a limited waiver of sovereign immunity.
Our holding that OCGA § 12-16-5 (c) bars appellants’ challenge to the responsible official’s decision that the proposed government action is not one from which it is probable to expect a significant adverse impact on the environment is supported by the additional language in OCGA § 12-16-5 (c), which limits the scope of a permissible legal challenge under GEPA and sets out the time period within which such a challenge must be filed. The statute authorizes a legal challenge only to the procedure followed by the responsible official in giving the notices required by OCGA §§ 12-16-4 (c) and 12-16-5 (b) after the official has determined that the proposed governmental action may significantly adversely affect the quality of the environment. The period within which the limited class of permitted suit may be filed commences with the publication of notice of the responsible official’s decision following receipt of the public’s written and verbal comments regarding the proposed government action that has been determined by the responsible official to be one which may significantly adversely affect the quality of the environment. Both the action which can form the basis of a permitted lawsuit and the time period within which such a suit must be filed take place well after the responsible official’s decision that forms the basis of appellants’ complaint, leaving us to conclude that the statute shields the responsible official’s initial decision from judicial review.
In light of our determination that OCGA § 12-16-5 (c) bars appellants’ suit, we do not address the remaining questions we posed in granting appellants’ application for discretionary review since they were dependent upon an initial resolution that § 12-16-5 (c) did not bar appellants’ suit.
Judgment affirmed.
Notes
OCGA § 12-16-3 defines the applicable terms as follows:
(1) “A proposed governmental action which may significantly adversely affect the quality of the environment” means a project proposed to be undertaken by a government agency or agencies, for which it is probable to expect a significant adverse impact on the natural environment . . .
(5) “Government agency” means any department, board, bureau, commission, authority, or other agency of the state . . .
(7) “Proposed governmental action” means any proposed land-disturbing activity by a government agency or funded by a grant from a government agency, any proposed sale or exchange of more than five acres of state owned land . . .
(8) “Responsible official” means the official or body in charge of or authorized to act on behalf of a government agency.
An “environmental effects report” is statutorily defined as “a report on a proposed governmental action which may significantly adversely affect the quality of the environment.” OCGA § 12-16-3 (4).
Under the doctrine of sovereign immunity, the State cannot be sued without its consent. The doctrine of sovereign immunity enjoys constitutional status and therefore cannot be abrogated by this Court. State Bd. of Ed. v. Drury,
Assuming without deciding that the declaratory judgment portion of appellants’ complaint is not barred by sovereign immunity, we conclude that the trial court did not err when it declined to issue a declaratory judgment since, the sale of the land having been completed, there was neither an actual nor a justiciable controversy which would authorize entry of a declaratory judgment. OCGA § 9-4-2; Baker v. City of Marietta,
Dissenting Opinion
dissenting.
The issue in this appeal is whether the determination by a responsible official based on erroneous legal advice that a proposed government action does not significantly adversely affect the environment can be challenged under the Georgia Environmental Policy Act (“GEPA”). OCGA § 12-16-1 et seq. Because the majority’s holding, which
The record establishes that the Board of Regents of the University System of Georgia decided to sell a tract of approximately 300 acres of property to the Development Authority of Gordon County to be developed into an industrial park. The property, known as the “Rome Crossroads,” contains Native American archaeological artifacts and a pre-Civil War cemetery; it was the site of a Civil War Battle; and a third of the property is part of the Oothcalooga Creek flood plain. The parties agree that Philip Worley, as the responsible official acting on behalf of the Board of Regents,
GEPA was enacted in recognition that “[t]he protection and preservation of Georgia’s diverse environment is necessary for the maintenance of the public health and welfare and the continued viability of the economy of the state.” OCGA § 12-16-2 (1). The Legislature stated that the protection and preservation of Georgia’s environment “is a matter of the highest public priority,” id., and decided to promote this goal by requiring State agencies to “conduct their affairs with an awareness that they are stewards of the air, land, water, plants, animals, and environmental, historical, and cultural resources.” Id. at (2). To effectuate this goal, the Legislature determined that “[environmental evaluations should be a part of the decision-making processes of the state.” Id. at (3). The decision-making process utilized by Worley in this case, however, utterly thwarted the express legislative purpose of GEPA. Rather than fulfilling the stewardship duties set forth in GEPA, Worley utilized a sophistic legal interpretation which conveniently allowed the Board of Regents to avoid implementing the requirements established by the Legislature to protect and preserve this State’s environment.
The majority does not address and condemn the fallacy behind the legal argument used by Worley, i.e., that the environmental impact of the sale of property extends no farther than the signing of closing documents. Instead, the majority focuses solely upon OCGA § 12-16-5 (c) to uphold the dismissal of appellants’ suit because appellants failed to file suit within 30 days of Worley’s decision to proceed with the sale. The majority’s holding, however, is not a correct application of OCGA § 12-16-5 (c) within the context of the entire Act. See Thomas v. MacNeill,
OCGA § 12-16-5 (c) has no application in those instances in which a responsible official avoids initiating the public participation steps set forth in GEPA by concluding initially that the proposed governmental action will not significantly adversely affect the environment. The majority opinion has violated an elementary rule of statutory construction by lifting a segment of GEPA out of context and construing it without consideration of all other parts of the statute. See City ofJesup v. Bennett,
Nothing in the language of OCGA § 12-16-5 (c) supports the majority’s conclusion that its provisions bar appellants’ suit under the facts in this case. The decision of the responsible official which “shall not create a cause of action” under GEPA unless that decision is challenged pursuant to the APA within 30 days after the decision’s publication is unmistakably a decision made only after the environmental effects report is published in the legal organ of each county where the proposed government action will occur, after a requested public hearing has been conducted, after the responsible official has considered the comments received, rendered a decision to proceed with the proposed action, and published that decision in the legal organ of the affected counties. OCGA §§ 12-16-4, 12-16-5. Accordingly, I cannot agree with the majority that OCGA § 12-16-5 (c) applies to limit a challenge to the decision to proceed with a proposed government action under GEPA in those situations where the responsible official has sidestepped GEPA’s notice requirements by concluding the proposed action has no significant, adverse environmental effects.
Although GEPA does not detail the procedure to be followed to challenge a responsible official’s decision to proceed with a proposed government action which was made under factual circumstances such as those present here, that does not mean aggrieved parties are without a remedy. I would hold that appellants’ suit, in which they sought a declaration of the respective rights of the Board and themselves under GEPA, a mandamus to compel the performance of GEPA requirements by Worley, injunctive relief and, in the
“Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.” Echols v. Thomas,
This Court’s interpretation of GEPA must be based on the recognition that the protection and preservation of this State’s diverse environment “is a matter of the highest public priority.” OCGA § 12-16-2 (1). The majority’s interpretation of GEPA violates basic rules of statutory construction because it does not implement the express intent of the Legislature, it lifts individual provisions within the statute out of context of the act as a whole, and it fails to avoid a construction which renders GEPA meaningless. Because I cannot agree to a statutory construction of GEPA which defeats the primary purpose of the legislation, I dissent.
The Attorney General has held that the Board of Regents is an entity covered under GEPA. 1993 Op. Att’y Gen. No. U93-9.
OCGA § 12-16-5 (c) provides, in pertinent part:
The decision of the responsible official to proceed with the proposed governmental action shall not create a cause of action in any person, corporation, association, county or [city]; provided, however, the actions of the responsible official in the procedure of giving notice by publication of the environmental effects report and notice by publication of the decision made based upon the report and public comments, if any, may be challenged pursuant to [the APA] if the responsible official acts on behalf of a government agency which is subject to [the APA] or by mandamus otherwise; but any such challenge must be commenced within 30 days after the date notice of the responsible official’s decision made pursuant to subsection (b) of this Code section is first published ....
Counsel for the Board of Regents stated at the hearing on the motion to dismiss that in regard to the statutory requirements of notice by publication of the existence of an environmental effects report and an opportunity for the public to be heard, “[n]one of that was done in this case because of the initial finding by Mr. Worley that the sale would not have an adverse effect,” although counsel candidly admitted that “Mr. Worley has acknowledged that the construction of the development of the industrial park would have an adverse effect” on the Rome Crossroads property.
Concurrence Opinion
concurring.
In adopting the Act, the General Assembly declared that “[t]he protection and preservation of Georgia’s diverse environment is necessary for the maintenance of the public health and welfare and the continued viability of the economy of the state and is a matter of the highest public priority”
OCGA § 12-16-2 (1).
OCGA § 12-16-2 (2).