NATIONAL SOLID WASTES MGT. v. CaseyNATIONAL SOLID WASTES MGT. v. Casey
The National Solid Wastes Management Association (Association) has petitioned this Court for relief from an executive order, No. 1989-8, issued by Governor Robert P. Casey on October 17, 1989, and published on October 28, 1989, in The Pennsylvania Bulletin. The Association asserts that this executive order constitutes a violation of the separation of powers because it allegedly represents impermissible legislation which effectively amends the Commonwealth‘s resource recovery facility regulatory scheme. The Association seeks a declaratory judgment that the order is unconstitutional or invalid and an injunction against the order‘s implementation. The Association also seeks mandamus relief cоmpelling the Department of Environmental Resources to comply with the statutorily mandated resource recovery facility permit application process. Before this Court are the preliminary objections of the Governor and the Department of Environmental Resources to the Association‘s petition for review. We overrule the preliminary objections in part and sustain thеm in part.
The Governor issued an executive order instructing the Department of Environmental Resources (Department) to cease reviewing applications for resource recovery facility permits and thereby institute an interim moratorium on the issuing of new permits to these facilities, to establish maximum and average waste volume limitations for these facilities, and to require that 70% of the waste volume received by these facilities be generated within Pennsylvania. The Governor cited
The Governor and the Department preliminarily object to the Association‘s petition for review, asserting that this Court is without jurisdiction to hear this matter both because of the Association having improperly served the petition for review by which this action was initiated and becаuse the members of the Association purportedly affected by the order have failed to exhaust their administrative remedies. The Governor and the Department additionally submit the Association lacks standing to bring this action and that its claim is not legally cognizable.
I
Because failure to comply with
II
The Governor contends that this matter is not properly before this Court because the Association‘s members have failed to exhaust their administrative remedies. The exhaustion requirement is a judge-made rule intended to prevent premature judicial intervention into the administrative process. Baker v. Commonwealth of Pennsylvania, Human Relations Commission, 75 Pa.Commonwealth Ct. 296, 462 A.2d 881 (1983), aff‘d as modified, 507 Pa. 325, 489 A.2d 1354 (1985). To that end, it is appropriate to defer judicial review where the question presented is one within an agency specialization and where the administrative remedy is likely to produce the desired result. However, the doctrine that administrative remedies must first be exhausted is not so inflexible as to bar either legal or equitable
Central to the issue of whether the Association must exhaust its аdministrative remedies is the characterization of an executive order. In Shapp v. Butera, 22 Pa.Commonwealth Ct. 229, 348 A.2d 910 (1975), we identified three types of executive orders: (1) formal, ceremonial, political orders, usually issued as proclamations; (2) orders which communicate to subordinate officials “requested or suggested directions for the execution of the duties of the Executive Branch of government;” (3) orders which serve to implement or supplement the constitution or statutes. Only the third class of orders create legally enforceable rights and therefore have the force of law, Pagano v. Pennsylvania State Horse Racing Commission, 50 Pa. Commonwealth Ct. 499, 413 A.2d 44 (1980); only the third class either are authorized by our Constitution or are promulgated pursuant to statutory authority. The authority for an executive order may stem from a specific constitutional or statutory provision or by way of necessary imрlication. Butera, 22 Pa.Commonwealth Ct. at 235, 348 A.2d at 913.
Consequently, an action invoking judicial review may only be brought with respect to the third class of orders because these orders involve legally cognizable issues and the others pertain to political, and hence, non-justiciable issues. Robinson v. Shapp, 23 Pa.Commonwealth Ct. 153, 350 A.2d 464 (1976). Thus, in Pagano, we indicated
Challenges to regulations both on constitutional grounds and invalidity have been permitted by this Court as proper under the Declaratоry Judgments Act,
Because the Association‘s claim is premised on a constitutional violation and because that claim alleges both that the substance of the order violates the legislated regulatory scheme and that the Governor was without
By means of a declaratory judgment, the resolution of the question of the еxecutive order‘s validity neither causes us to prejudge issues that are committed for initial resolution to an administrative forum nor establish in advance the merits of any determination regarding a permit application. Department of General Services v. Frank Briscoe Co., Inc., 502 Pa. 449, 466 A.2d 1336 (1983). Similarly, the injunctive relief that would be issued should the declaratory judgment find the executive order invalid is not dependent upon an exhaustion of administrative remedies. Hayes v. City of Scranton, 354 Pa. 477, 47 A.2d 798 (1946). And finally, relief in mandamus is simрly not predicated upon the exhaustion of administrative remedies. Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329 (1950). The objection must be overruled as to all counts.
III
In determining whether the Association has standing to maintain this action, we are mindful that an association may have standing even in the absence of injury to itself. An association may have standing solely as the representative of its members and may initiate a cause of action if its members are suffering immediate or threatened injury as а result of the contested action. Paratransit Association of Delaware Valley, Inc. v. Yerusalim, 114 Pa.Commonwealth Ct. 279, 538 A.2d 651 (1988); Concerned Taxpayers of Allegheny County v. Commonwealth, 33 Pa.Commonwealth Ct. 518, 382 A.2d 490 (1978). Accordingly, in order for an association to have standing, it must allege that its members, or at least one of its members, has
The declaratory judgment claim brought by the Association is founded uрon the harm to be suffered by its members should the Department fully implement the alleged alterations to the Commonwealth‘s resource recovery facility regulatory scheme propounded by the Governor‘s order. The Association has pled the immediacy of the order‘s implementation by averring actions taken by the Department‘s refusal to determine whether permit applications аre administratively complete and its return to Association members of their applications for new permits or expansion of existing permits pending their submission of additional information and the revising of their applications in conformity with the executive order.
The Association has shown the immediacy of its members’ interest by averring that the Department has notified them of its intent to modify allowable wastе volume limitations consistent with the executive order. The Association has particularly averred that the reduction in out-of-state waste volume resulting from the order‘s requirement that at least 70% of a site‘s waste volume must be generated in Pennsylvania is adverse to the interest of the Association‘s members.
The Association has not only pled a discernibly adverse effect upon its members from the executive order because of the Department‘s actions, but has also pled the immediacy of the order‘s effect by averring that its members have made permit applications for new municipal waste landfills and for the expansion of existing landfills.
Since the granting of a declaratory judgment is discretionary and not a matter of right, Ronald H. Clark, Inc. v. Township of Hamilton, 128 Pa.Commonwealth Ct. 31, 562 A.2d 965 (1989) and since the Association has pled that its members are suffering direсt, immediate and substantial injury, William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), from the allegedly impermissible legislative action which Executive Order 1989-8 purportedly represents, we overrule the Governor and the Department‘s objections as to the Association‘s standing to bring this action under the Declaratory Judgments Act. We must, however, sustain the preliminary objection to standing insofar as it relates to the mandamus count.
Mandamus is designed to compel рerformance of a mandatory act where the petitioner has a clear right, there is a corresponding duty, and the petitioner demonstrates a lack of an adequate remedy at law. Keystone Chapter, Associated Builders and Contractors, Inc. v. Thornburgh, 92 Pa.Commonwealth Ct. 646, 500 A.2d 211 (1985). The Association has alleged that Section 1 of the executive order contravenes the express statutory period fоr making permit determinations upon the filing of a completed application,
While the Association members all have an interest in the Department‘s processing permit applications and devising waste volume limitations both in accordanсe with statutorily prescribed procedures, this interest does not afford the Association standing to bring this action in mandamus. Mandamus is a remedy that requires a public official to perform a nondiscretionary act in relation to a specific event. In this case such an act would be to issue a specific permit to a specific facility operator. The Association has no interest in its mеmbers’ permits and accordingly does not have standing to compel the Department to issue
IV
The Governor and the Department preliminarily object by way of demurrer that the Association cannot maintain this action because they contend that the Governor has the power to issue this executive order pursuant to
Insofar as the Declaratory Judgment count is concerned, the Association has pled facts sufficient to withstand the demurrer that the Governor did not have the power to take all or certain parts of the actions contained in the executive order. We will, therefore, overrule the Governor and the Department‘s demurrer as to this count.
We will, however, sustain the demurrer as to Count I, the Separation of Powers count. We do not believe that the Association has pled sufficient facts that the Governor‘s order contravenes the separation of powers by violating
An appropriate order follows overruling the preliminary objections in part and sustaining them in part.
ORDER
AND NOW, this 11th day of September, 1990, upon consideration of the argument on the Respondent‘s preliminary objections, it is hereby ordered that:
(2) The preliminary objection contending that this Court is without jurisdiction because of Petitioner‘s failure to exhaust administrative remedies is overruled.
(3) The preliminary objection contending that Petitioner lacks standing to bring this action is overruled with respect to Count III, seeking declaratory judgment. This objection is sustained with respеct to Count II, seeking mandamus, and accordingly, Count II is dismissed.
(4) The preliminary objection in the nature of a demurrer is overruled with respect to Count III, seeking declaratory judgment. This objection is sustained with respect to Count I, alleging a constitutional violation, and accordingly, Count I is dismissed.
Count III having survived the preliminary objections lodged by Respondent, we now order Respondent to file an answer in this matter on оr before October 12, 1990.
PALLADINO, Judge, dissenting.
I must respectfully dissent because I believe the National Solid Wastes Management Association (NSWMA) does not have standing to bring this action. Furthermore, this court lacks jurisdiction because administrative remedies have not been exhausted.
To have standing, a party must plead facts which establish a direct, immediate and substantial injury. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). An association may have standing, even in the absenсe of injury to itself, if its members are suffering immediate or threatened injury as a result of a contested action, Concerned Taxpayers of Allegheny County v. Commonwealth, 33 Pa.Commonwealth Ct. 518, 382 A.2d 490 (1978), provided the claimed injury is common to all members of the association. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). However, if
NSWMA does not set forth any facts showing an immediate or thrеatened injury to itself or its members, but merely makes the bald assertion that implementation of the executive order will “injure and cause harm to [its] members.” Any factual allegations revolve around individual permits issued to NSWMA members. In addition, the alleged injuries are based upon letters from the Department of Environmental Resources (DER) which merely seek information from permit holders and indicate an intent to implemеnt the executive order. These letters do not actually set any new limitations. As a result, any injury is speculative and applicable only to individual permit holders. Accordingly, under Warth NSWMA lacks standing to sue.
Even if we were to assume that NSWMA has standing to sue, there is no controversy ripe for judicial determination. A controversy regarding regulations is ripe only when the regulation has been formally promulgated and is in effect. Arsenal Coаl Co. v. Pennsylvania Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984); Spooner v. Secretary of Commonwealth of Pennsylvania, 114 Pa.Commonwealth Ct. 352, 539 A.2d 1 (1988). In the present controversy, the executive order is not self-executing, but rather instructs DER to implement the order with “such orders, permit actions, regulations and policies as may be necessary to execute each provision as expeditiously as possible.” Executive Order 1989-8 at Provision 5. DER has not issued any new regulations, but has merely requested additional information from individual permittees.
Finally, any implementation of the policies outlined in the executive order against any permittee can be appealed to the Environmental Hearing Board (EHB). Because there is an adequate statutory remedy available, this court should permit the administrative process to work to correct any alleged mistakes, and should not intervene in the action
Accordingly, I would sustain the preliminary objections and dismiss the complaint.
DOYLE and SMITH, JJ., join in this dissent.