Save Ourselves, Inc. v. La. Environ. Cont. Com'nSave Ourselves, Inc. v. La. Environ. Cont. Com'n
We granted certiorari to review the lower courts’ approval of permits issued by the Environmental Control Commission to IT Corporation for a major hazardous waste disposal facility on the Mississippi River. 430 So.2d 1114 (La.App.1983). This case raises issues intersecting the State Constitution‘s Natural Resource Article and the Louisiana Hazardous Waste Control Law; which is part of the Environmental Affairs Act of 1979. From the record presented for our review we cannot determine whether the agency followed correct interpretations of its constitutional and statutory duties, or whether its determinations are arbitrary, capricious or unreasonable. The judgments below are therefore vacated and the case is remanded to the court of appeal with directions to remand to the Environmental Control Commission for further proceedings consistent with this opinion.
I. Constitutional Provisions
It is the well settled law of this country that a state holds title to land under navigable waters within its limits and that the title is held in trust for the people of the state that they may enjoy and use the waters free from obstruction or interference. Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). A public trust for the protection, conservation and replenishment of all natural resources of the state was recognized by art. VI § 1 of the 1921 Louisiana Constitution.1 The public trust doctrine was continued by the 1974 Louisiana Constitution, which specifically lists air and water as natural resources, commands protection, conservation and replenishment of them insofar as possible and consistent with health, safety and welfare of the people, and mandates the legislature to enact laws to implement this policy.2
II. The Environmental Statutes
In implementation of the public trust mandate, the legislature enacted the Louisiana Environmental Affairs Act.3
The Act establishes the Environmental Control Commission (ECC), within the Department of Natural Resources,5 composed of seven cabinet level executive branch officials.
Part VII of the Act is designated the Hazardous Waste Control Law.
III. The Regulations
Pursuant to legislative mandate, the Department of Natural Resources promulgated a body of regulations, entitled the Hazardous Waste Management Plan. (HWMP)7 The two parts which concern us most in this case are those pertaining to the permit process and the standards for facilities which treat, store or dispose of hazardous waste.8
Permits must be secured by operators of facilities which treat, store, and/or dispose of hazardous wastes. HWMP, Rule 5.2.1. Generally, no facility may be used to treat, store or dispose of hazardous waste without a permit for the specific activities, procedures,
Upon acceptance of an application for review, copies are distributed for review and optional comment to: the public, a bulletin, a local newspaper, La. Water Pollution Control Division, La. Air Control Division, Department of Health and Human Resources, Department of Wildlife and Fisheries, Department of Transportation and Development, and local governing bodies. HWMP, Rule 5.3.1 A(7).
The Department evaluation will consider: (a) Purpose and use of facilities; (b) Operation and monitoring plan; (c) Capacity; (d) Closure; (e) Site Suitability; (f) Financial responsibility; (g) Legal Considerations; (h) Special considerations on a site specific basis; (i) Local zoning ordinances. 5.3.1 A(8).
A public hearing will be held for a permit for a commercial site and for any other facility if the Secretary determines it necessary. 5.3.1 A(10)-(11). Public hearings shall be conducted in accordance with the Administrative Procedure Act (
The permit application must include professionally exact and complete studies of (1) the site layout and facility design, showing all improvements and excavation; (2) Site geology; (3) Site hydrology, including surface flow, water wells, drainage, flood hazards, and climate factors; (4) Environmental factors; (5) Geographical factors; (6) Operations plan; (7) Closure plans; (8) Financial responsibility. HWMP, Rule 5.3.4.
All facilities which treat, store or dispose of hazardous waste must be constructed and operated to comply with the standards outlined in these regulations. HWMP, Rule 8.2.1. Site requirements include those pertaining to: geology—for example, soils of low permeability over an entire area or other means providing a barrier to penetration of surface spills or erosion; geography—no facility in an overflow zone subject to hurricane or flood waters without site protection measures; hydrology—natural or artificial hydrological isolation required. HWMP, Rules 8.3.1 through 8.3.4.
IV. Interrelationship of Constitutional, Statutory and Regulatory Requirements
In summary, the Natural Resources article of the 1974 Louisiana Constitution imposes a duty of environmental protection on all state agencies and officials, establishes a standard of environmental protection, and mandates the legislature to enact laws to implement fully this policy.
The Environmental Affairs Act of 1979 expanded the 1978 statute and created the Environmental Control Commission and charged it with the responsibility of reviewing each application for a permit to determine whether the proposed project or facility complies with the constitutional and legislative standards.
The Constitutional standard requires environmental protection “insofar as
The statutory standard requires environmental protection that “will assure safe treatment, storage and disposal [of hazardous wastes] without substantial risk to the environment * * *”
The constitutional-statutory scheme implies several other important principles. Since the ECC, in effect, has been designated to act as the primary public trustee of natural resources and the environment in protecting them from hazardous waste pollution, it necessarily follows that the agency must act with diligence, fairness and faithfulness to protect this particular public interest in the resources. See W. Rodgers, Environmental Law § 2.16 (1977); 1 V. Yannacone & B. Cohen, Environmental Rights and Remedies § 2.1 et seq. (1972). Consequently, the commission‘s role as the representative of the public interest does not permit it to act as an umpire passively calling balls and strikes for adversaries appearing before it; the rights of the public must receive active and affirmative protection at the hands of the commission. Cf. Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com‘n, 449 F.2d 1109, 1119 (D.C.Cir.1971); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir.1965).
The environmental protection framework vests in the commission a latitude of discretion to determine the substantive results in each particular case. Environmental amenities will often be in conflict with economic and social considerations. To consider the former along with the latter must involve a balancing process. In some instances environmental costs may outweigh economic and social benefits and in other instances they may not. This leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances. See Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com‘n, supra.
However, the environmental protection scheme also contains very important procedural provisions designed to see that the discretion entrusted to the ECC is in fact exercised in each individual case. The agency is required to use a systematic, interdisciplinary approach to evaluation of each hazardous waste project or facility.
This hazardous waste regulatory framework was modelled in part on the Resource Conservation and Recovery Act (RCRA) of 1976,
V. Scope of Review
Before considering the merits of relators’ challenges to the permits, some mention must be made of the appropriate scope of review under the circumstances of this case. Generally, administrative agency adjudication is subject to judicial review under § 964 of the Louisiana Administrative Procedure Act (LAPA). In 1982, however, the Louisiana Environmental Affairs Act was amended to provide that the provisions of
Pursuant to § 964, a reviewing court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
Thus, § 964 establishes a multifaceted review function committed to the court. In the present context, for example, that function is divisible into four categories—constitutional or statutory, procedural, substantive and factual.
In reviewing an agency decision, a court must first determine whether its actions were “in violation of constitutional or statutory provisions“, whether they were “in excess of statutory authority of the agency“, or whether they were “affected by other error of law.”
Less clear-cut are the provisions in
Due concern both for the intention of the constitution and the statute, and, more generally, for the boundaries between the legislative and the judicial functions, demands that a reviewing court exercise certain aspects of its review function with more circumspection than is appropriate to others. In light of the structure and aims of the public trust doctrine and the environmental act, and the breadth of authority delegated to the ECC, the judicial review function encounters significant limitations in the substantive aspects where the given statutory standards are “arbitrary“, “capricious” or “abuse of discretion“. It is elementary that a court‘s function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency. Buras v. Board of Trustees of Police Pension, 367 So.2d 849 (La.1977) See, Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978); K. Davis, Administrative Law (1982 Supp.) at 536 et seq.
On the other hand, the constitutionalstatutory scheme, its history, intent and the nature of the duties it delegates to the agency and the judiciary, does not imply any derogation of the courts’ traditional primacy in interpreting constitutional and statutory provisions and enforcing procedural rectitude. Benson & Gold Chev. v. Louisiana Motor Vehicle Com‘n, 403 So.2d 13 (La.1981); Weyerhaeuser Co. v. Costle, supra, at 1027.
The regulatory scheme provided by constitution and statute mandates a particular sort of careful and informed decision-making process and creates judicially enforceable duties. Reviewing courts should not reverse a substantive decision on its merits, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. However, if the decision was reached procedurally, without individualized consideration and balancing of environmental factors conducted fairly and in good faith, it is the courts’ responsibility to reverse. Cf. Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com‘n, supra.
The manifest error test of
The first sentence of
VI. Lack of Reasons Preventing Review
We cannot determine from this record that the agency fully understood its function or properly exercised the discretion it has been given. The commission did not assign reasons for its decision, and its factual findings do not sufficiently illumine its decision-making process.
IT Corporation applied for and obtained permits to treat, store and dispose of hazardous wastes in connection with an $84 million facility it proposed to build on the Mississippi River near Burnside. The application was opposed before the agency and in the lower courts by Save Ourselves Inc. and other citizens, intervenor-objectors herein. Their challenge focused principally upon the applicant‘s proposal to construct a landfill pit for the disposal of treated industrial hazardous waste over three aquifers near the Mississippi River, allegedly endangering the water supply of the population nearby and down river, including that of the City of New Orleans.
IT presented witnesses who testified that IT‘s application complied with the HWMP standards for hazardous waste facilities. However, these witnesses did not testify that the adverse environmental effects of the facility had been avoided or minimized to the maximum extent possible. Moreover, none of the witnesses made a costbenefit analysis of the environmental and non-environmental factors to demonstrate that issuance of the permit would be compatible with the constitutional and statutory standard of environmental protection.
From the present record we cannot tell whether the agency performed its duty to see that the environment would be protected to the fullest extent possible consistent with the health, safety and welfare of the people. The record is silent on whether the agency considered alternate projects, alternate sites or mitigation measures, or whether it made any attempt to quantify environmental costs and weigh them against social and economic benefits of the project. From our review it appears that the agency may have erred by assuming that its duty was to adhere only to its own regulations rather than to the constitutional and statutory mandates.
On the other hand, the intervenor-objector introduced evidence and pointed out weaknesses in the applicant‘s case that were not rebutted by the applicant or explained away by the agency: The intervenors demonstrated that the applicant failed to locate and seal many of the water wells on, and within 2000 feet of, the site, presenting a possibility of existence of other unsealed wells allowing access for contaminants to aquifers from hazardous waste spills or flooding. The intervenors’ expert witnesses testified that without full disclosure of the ingredients of the applicant‘s stabilization process, it could not be determined whether the clay liner of the landfill pit would withstand chemical reaction and breakdown for the life expectancy of the hazardous condition; the agency refused to require disclosure and did not explain why this does not raise a prima facie case of a substantial risk to the environment. The evidence introduced by both sides indicates that there is a significant possibility that the hazardous waste site is not hydrologically isolated as required by the regulations, but there is no indication
Further, the evidence in the record points to the possible need for mitigation measures which appear to have been rejected without sufficient reason by the agency: The testimony of witnesses for both the applicant and the intervenors indicates the need for a slurry wall as a second line of protection in addition to the clay liner around the landfill pit. Yet, the agency did not impose this as a condition to the permit. The permit does not limit the number or restrict the location of landfill pits which IT may build on its 1000 acre tract. Because the evidence indicates varying degrees of environmental risk associated with different portions of the property related to the possibility of unsealed wells or other pathways to the sub-strata, the flood plain, and proximity to the river, it would appear that the agency‘s failure to impose such restrictions may have been arbitrary, capricious and unreasonable.
Although the intervenor-objectors have not at this time persuaded us that the agency acted in violation of law, in excess of authority, or arbitrarily, capriciously or in abuse of discretion, we conclude that in order to obtain the judicial review to which they and the public are entitled, the commission must provide at least additional analysis and reasons for the agency decision. See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); State of Maine v. Kreps, 563 F.2d 1043 (1st Cir. 1977). There is sufficient indication of possible misunderstanding on the commission‘s part of the constitutional and statutory requirements to render it improper for a court merely to rely on the presumptive correctness of the agency‘s bottom line result. State of Maine v. Kreps, supra. Cf. Giallanza v. Louisiana Public Service Com‘n, supra; Baton Rouge Water Works v. Louisiana Public Service Com‘n, supra.
“The administrative process will best be vindicated by clarity in its exercise.” Phelps Dodge Corp. v. National Labor Relations Bd., 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271, 1284. What was said in that case is equally applicable here: “We do not intend to enter the province that belongs to the board, nor do we do so. All we ask of the board is to give clear indication that it has exercised the discretion with which congress has empowered it. This is to affirm most emphatically the authority of the board.”
As Justice Frankfurter stated in Securities and Exchange Com‘n v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943): “In finding that the Commission‘s order cannot be sustained, we are not imposing any trammels on its powers. We are not enforcing formal requirements. We are not suggesting that the Commission must justify its exercise of administrative discretion in any particular manner or with artistic refinement. We are not sticking in the bark of words. We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”
The cause should therefore be remanded to the court of appeal with directions to remand to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate.
So ordered.
MARCUS, J., concurs.