State v. All Pro Paint & Body Shop, Inc.State v. All Pro Paint & Body Shop, Inc.
The State appeals a judgment of the Louisiana First Circuit Court of Appeal declaring a criminal penalty provision of the Louisiana Hazardous Waste Control Law unconstitutional as a delegation to the executive branch of legislative authority to define a felony.1 We reverse.
I
On or about December 5, 1990, defendant William J. Hampton, the owner and operator of defendant All Pro Paint & Body Shop, Inc., paid scrap dealer Freddie Donahue $100.00 to dispose of a number of containers of spent paint thinner generated in the operation of the рaint and body shop. Donahue deposited the containers in two uninhabited houses in Baton Rouge. The owner of the houses later discovered the containers and reported the discovery to the authorities.
Officials from the Department of Environmental Quality (DEQ) and the State Police recovered more than thirty containers containing an estimated 660 gallons of material. Experts subjected samples of material gathered from the containers to laboratory analysis. Each of at least fourteen samples ignited or reached its “flashpoint” at less than 140° Fahrenheit. A substance having a flashpoint of less than 140° Fahrenheit or 60° Centigrade is classified as hazardous waste under the Louisiana Hazardous Waste Control Law (HWCL),
“Hazardous waste” means any waste, or combination of wastes, which because of its quantity, concentration, physical, or chemical characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed. Such definition shall be applied only to those wastes identified and designated as such by the department, consistent with applicable federal laws and regulations.
After tracing the containers to Hampton and All Pro, officers obtained a search warrant and seized documents including Hampton‘s notification to DEQ of an intent to generate hazardous waste on the premises of the paint and body shop, Hampton and All
An East Baton Rouge Parish grand jury indicted Hampton and All Pro for illegal transportation, storage, and disposal of hazardous waste in such a manner that they knew or should have known they thereby placed another person in imminent danger of death or serious bodily injury, all in violation of
§ 2183. Notice; permits and licenses; enforcement; violations; penalties; notification
A. No later than ninety days after the effective date of the regulations authorized by this Chapter, every person not otherwise exempt who generates, transports, or desires to transport in the state any hazardous waste or who owns, operates, or desires to own or operate a treatment, storage, transfer, or disposal facility which handles hazardous wastes within the state shall file with the secretary or commission a notification stating the nature and location of the activity conducted or desired to be conducted and, if required by regulations, a request for an application for аny necessary licenses, permits, schedules of compliance, or performance guidelines....
B. It shall be unlawful to initiate or continue the generation, transportation, treatment, storage, or disposal of hazardous wastes after the time period provided in Subsection A of this Section except in compliance with the notice requirements thereof.
C. Upon receipt of the notices required in Subsection A of this Section or as soon as practicable thereafter, the secretary shall initiate the procedures as required by this Chapter and the regulations applicable thereto for the issuance or denial of permits and licenses and the establishment of schedules of compliance and performance guidelines for facilities and equipment.
. . . .
E. Upon the issuance of a license or permit or the establishment of a schedule of compliance or performance guidelines, it shall be unlawful to transport, treat, store, or dispose of hаzardous wastes except in accordance with the terms and conditions thereof and the regulations applicable thereto.
. . . .
G. . . .
(2) Any person who knowingly transports, treats, stores, disposes of, or exports any substance in contravention of any provisions of this Chapter or the regulations or of any permit or license terms and conditions adopted in pursuance thereof, or any person who otherwise knowingly violates any provisions of this Chapter, in such manner that he knows, or should have known, at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than two hundred fifty thousand dollars per day of violation and costs of prosecution, or imprisonment at hard labor for not more than fifteen years, or both.3
(1) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water so that such waste, or any constituent thereоf, may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
. . . .
(4) “Storage” means the containment of hazardous waste on a temporary basis, for such time as may be permitted by regulations, in such a manner as not to constitute disposal of such hazardous waste.
. . . .
(6) “Transportation” means the movement of hazardous wastes from the point of generation or storage to the point of treatment, storage, or disposal by any means of commercial or private transport. The term does not apply to the movement of hazardous wastes on the premises of a hazardous waste generator or on the premises of a permitted hazardous waste treatment, storage, or disposal facility.
Defendants entered pleas of not guilty and filed a motion to quash the indictment alleging the statutory and regulatory scheme governing hazardous waste constitutes an unconstitutional delegation of legislative authority to the executive branch. The trial court denied the motion to quash and, following a bench trial, acquitted defendants on the charge of illegal storage of hazardous waste and convicted them as principals on the charges of illegal transportation and disposal of hazardous waste in violation of
On appeal to the Louisiana First Circuit Court of Appeal, Hampton and All Pro argued the evidence was insufficient to uphold their convictions and re-urged their argument in support of their motion to quash the indictment on the grounds the HWCL unconstitutionally delegates legislative authority to the executive branch. The court of appeal, with one member of a three-judge panel dissenting, reversed defendants’ convictions and sentences and granted their motion to quash the indictment, declaring
The sole issue on appeal in this court is whether
A
The Louisiana Constitution divides the powers of state government into “three separate branches: legislative, executive and judicial.”
Recognizing that the Louisiana Constitution unequivocally mandates the separation of powers among the three branches of state government, this court in delegation cases traditionally has distinguished between delegations of purely legislative authority, which necessarily violate the separation of powers, and delegations of ministerial or administrative authority, which do not. The court explained the distinction in Schwegmann Brothers Giant Super Markets v. McCrory, 237 La. 768, 787-88, 112 So.2d 606, 613 (1959) (footnotes omitted) (emphasis added):
Due to the complexity of our social and industrial activities, the decisions display an increasing tendency to hold as nonlegislative the authority conferred upon commissions and boards to determine the facts or state of things upon which the law intends to make its action depend. It is now well settled that the Legislature may make the operation or application of a statute contingent upon the existence of сertain conditions, and may delegate to some executive or administrative board the power to determine the existence of such facts and to carry out the terms of the statute. So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature.
See also Taylor, 479 So.2d at 343 (“When the delegated authority is unfettered ..., its exercise becomes legislative, not administrative, in nature, and contravenes the mandate of Article 2, Section 2 of the Louisiana Constitution“) (emphasis added); Rodriguez, 379 So.2d at 1087 (“The legislature may confer ministerial powers upon executive agencies if it supplies adequate standards to execute the legislative policy; however it cannot surrender the legislative power itself to determine what the law shall be“) (emphasis added); City of Alexandria v. Alexandria Fire Fighters Ass‘n, 220 La. 754, 758, 57 So.2d 673, 674 (1952) (the delegation doctrine “does not forbid the delegation of powers which are not purely legislative, that is, powers which may properly be exercised by the lawmaker but which are of a nonlegislative character“) (emphasis added); see State v. Morgan, 238 La. 829, 844, 116 So.2d 682, 687 (1960); National Bank of Commerce v. Louisiana State Univ., 206 La. 913, 934, 20 So.2d 264, 270 (1944); City of Baton Rouge v. Shilg, 198 La. 994, 998, 5 So.2d 312, 313 (1941).
Consistent with the distinction drawn in Schwegmann between delegations of legislative authority versus delegations of administrative or ministerial authority, the court on numerous occasions has recognized that where an enabling statute expresses a clear legislative policy and contains sufficient standards for the guidance of the administrative official empowered to execute the legislative will, the legislature may delegate to an administrative
Guided by the principles set forth in Schwegmann and inherent in the constitutional separation of powers, this court has fashioned a three-prong test for determining on a case-by-case basis whether a statute unconstitutionally delegates legislative authority, as opposed to ministerial or administrative authority, to an administrative agency: a delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy, (2) prescribes sufficient standards to guide the agency in the execution of that policy, and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. State v. Barthelemy, 545 So.2d 531, 534 (La.1989); Adams, 458 So.2d at 1298; Union Tank Car, 439 So.2d at 381. This test, which embodies the delegation doctrine as it has evolved in the Louisiana jurisprudence,
serves two primary functions vital to preserving the separation of powers required by the Constitution. First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.
Arizona v. California, 373 U.S. 546, 626, 83 S.Ct. 1468, 1511, 10 L.Ed.2d 542 (1963) (Harlan, J., dissenting in part) (footnote omitted).7
Application of the Schwegmann three-prong test ensures the elected members of the Louisiana Legislature retain all legislative power by insisting that they, nоt their delegates in the executive branch, make the difficult policy choices for which they are accountable to the public through the democratic process. Furthermore, by insisting that the enabling statute prescribe not only the legislative policy to be enforced by the agency but also sufficient standards to guide or “canalize” the agency‘s execution of the
B
In the present case, the court of appeal concluded the Schwegmann three-prong test was not applicable to test the validity of the delegation to DEQ in
[T]he supreme court has adopted a new test as to the constitutionality of the delegation of legislative authority as it relates to felony offenses. The three prong test of Schwegmann, as enunciated in State v. Barthelemy, 545 So.2d 531, 534 (La.1989), used generally to test the validity of the delegation of legislative authority has in the instance of creating or defining felony offenses been put aside in favor of a one step test. This new test is limited to a review of the statute itself which creates or defines the felony offense. The legislature cannot delegate to the executive branch, under however stringent guidelines, the authority to fill in the details of what constitutes a felony under the statute.
We reject the court of appeal‘s interpretation of Broom and Taylor. In Broom, the delegation under attack authorized the Department of Public Safety to promulgate regulations setting forth minimum standards governing the manufacture, transportation, use, sale, handling, and storage of explosives “as are reasonably necessary for the protection of thе health, welfare and safety of the public” and in conformity with “the published rules and standards of the Institute of Makers of Explosives,”
On rehearing, the Broom court held “LSA-R.S. 40:1471.9 unconstitutionally delegates authority to the director of public safety
In Taylor, the other case on which the court of appeal relied, the court explicitly found the enabling statute “fails to prescribe sufficient standards by which the power delegated is to be exercised.” Taylor, 479 So.2d at 343. The delegation under аttack in that case authorized administrators of state correctional institutions to determine the meaning of “contraband,” possession of which by inmates constituted a felony under
The former statute delegated to officials within prescribed limits the authority to make exceptions in isolated instances to the exclusive list of articles defined as contraband. The degree of authority delegated by former
La.R.S. 14:402(A) was minimal and the statute was considered to be administrative, not legislative, in its nature.
Taylor, 479 So.2d at 342. In contrast, observed the court, the present statute аllowed “such latitude to determine what is and is not contraband, the legislature has vested in the head of a facility or his designee the authority to define and redefine what is criminal conduct.” Id. at 343. Accordingly, the court declared the statute unconstitutional, concluding: “When the delegated authority is unfettered as here, its exercise becomes legislative, not administrative, in nature, and contravenes the mandate of Article 2, Section 2 of the Louisiana Constitution.” Id. Nothing in the Taylor opinion suggests a departure from this court‘s prior jurisprudence applying the principles set forth in Schwegmann.
Thus, although the court in both Broom and Taylor recited the well settled rule that legislative power to create and define criminal offenses cannot be delegated, neither decision creates a “new test,” as found by the court of appeal, under which delegations would be struck down solely because the authority delegated “relates to” felony offenses. On the contrary, each decision rests on the court‘s finding that the delegation under attack failed to prescribе sufficient standards to guide the agency‘s exercise of discretion and therefore amounted to an unconstitutional delegation of legislative authority to create or define a felony. Moreover, far from establishing a rule that “[t]he legislature cannot delegate to the executive branch, under however stringent guidelines, the authority to fill in the details of what constitutes a felony under the statute,” All Pro, 618 So.2d at 967, both decisions reaffirm the principles embodied in the Schwegmann three-prong test under which an enabling statute, supported by a clear expression of legislative policy, sufficient standards, and adequate procedural safeguards, does not unconstitutionally delegate legislative authority—even if the authority delegated “relates to” felony offenses—but
In short, the court of appeal erred in concluding this court in Broom and Taylor “adopted a new test as to the constitutionality of the delegation of legislative authority as it relates to felony offenses.” All Pro, 618 So.2d at 967.
III
Applying the “one step test” it erroneously believed this court had adopted in Broom and Taylor, the court of appeal held
Here, without question this entire statutory scheme does not define the felony offense, but merely sets guidelines for the definition of the offense. Hazardous waste is not defined in the statute except in general terms, leaving to the executive the duty to devise a more definitive definition or description of hazardous waste. Thus, the result is an unconstitutional delegation of constitutional authority to the executive branch.12
All Pro, 618 So.2d at 968. As shown below, had the court of appeal applied the Schwegmann three-prong test to determine the constitutionality of
The Schwegmann test first requires us to determine whether the enabling statute, the HWCL, contains a clear expression of legislative policy. In Johnson v. Pearce, 313 So.2d 812, 819 (La.1975), we stated, “Once the legislature has defined its policy ..., the State, acting under its police power to protect the health, welfare and safety of the people, may confer upon administrative officers or bodies the power to adopt the rules and regulations to effectuate the legislative will.” See also Union Tank Car, 439 So.2d at 381. Thus, the requirement of a clear expression of legislative policy ensures the regulatory scheme constitutes a valid exercise of the State‘s police power to protect the health, welfare, and safety of the people, thereby permitting an administrative agency to make rules and regulations necessary for the administration and enforcement of that policy. Johnson, 313 So.2d at 819; Union Tank Car, 439 So.2d at 381.
The HWCL states its policy and purpose as follows:
§ 2172. Policy and Purpose
A. The legislature finds and declares that:
(1) The manufacture, refinement, processing, and treatment of petroleum, natural gas, raw chemicals, ores, and other natural and synthetic products is a basic and essential activity making a significant contributiоn to the economy of this state.
(2) This activity often produces byproducts and wastes of a character and in quantities that pose substantial present and potential danger to the health and safety of the citizens of this state and to the integrity of the environment unless such wastes and byproducts are transported,
treated, stored, and disposed of in a prudent and responsible manner. (3) Present state laws and regulations applicable thereto are inadequate to assure that necessary safeguards and practices are adhered to on a continuing basis in matters pertaining to the transportation, treatment, storage, and disposal of such hazardous wastes, which has resulted in substantial abuse of the environment, damage to private and public property and unnecessary endangerment of the health and safety of the citizens of this state.
B. In order to diminish the risks to which the citizens and environment of this state are being exposed it is in the public interest, and within the police power of the state, to establish a framework for the regulation, monitoring, and control of the generators, transportation, treatment, storage, and disposal of such hazardous wastes, and it is the declared purpose of this Chapter to authorize the development, implementation, and enforcement of a comprehensive state hazardous waste control program.
The HWCL‘s policy and purpose provision establishes a reasonable and definite governmental policy warranting the exercise of the State‘s police power to protect the public health, safety, and welfare by regulating hazardous waste. The legislature identifies the competing interests at stake—industry on the one hand and the health and safety of the citizens and integrity of the environment on the other—while acknowledging the inadequacy of present state laws and regulations to reconcile those interests or to prevent resulting harms to the environment, property, and people of the State. Having established the need for legislative action “in the public interest,” the legislature then declares its intention to address that need by establishing “a framework for the regulation, monitoring, and control of the generators, transportation, treatment, storage, and disposal of... hazardous wastes” and authorizing “the development, implementation, and enforcement of a comprehensive state hazardous waste control program.” Id. We find this clear expression of legislative policy adequate to support a delegation to DEQ of authority to promulgate rules and regulations necessary for the administration and enforcement of that policy.
Our next inquiry under the Schwegmann test is whether the HWCL prescribes sufficient standards to guide DEQ in the execution of the statute‘s declared policy. In testing the constitutional sufficiency of the standards prescribed in the HWCL, regard must be given to the purpose and scope of the act, the subject matters covered therein, the duties prescribed, and the broad or nаrrow powers granted. Adams, 458 So.2d at 1299; Union Tank Car, 439 So.2d at 381 (citing Bortz Coal Co. v. Air Pollution Commission, 2 Pa.Cmwlth. 441, 279 A.2d 388 (1971)). The standards need not necessarily be set forth in express terms if they might reasonably be inferred from the statutory scheme as a whole. Id. at 383 (citing State v. Arizona Mines Supply Co., 107 Ariz. 199, 484 P.2d 619 (1971)). Also, we must remember that an act of the legislature is presumed to be legal until it is shown to be unconstitutional, State v. Griffin, 495 So.2d 1306, 1308 (La.1986); Union Tank Car, 439 So.2d at 382, and that in construing statutes courts must endeavor to give an interpretation that will give the statutes effectiveness and purpose rather than one which renders them meaningless. Union Tank Car, 439 So.2d at 382; Johnson v. Sewerage Dist. No. 2 of Caddo Parish, 239 La. 840, 857, 120 So.2d 262, 268 (1960). Likewise, courts will not impute meanings which will lead to absurd results or extend statutes to situations which the legislature never intended should be covered thereby. Union Tank Car, 439 So.2d at 383; Smith v. Town of Vinton, 209 La. 587, 592, 25 So.2d 237, 239 (1946).
Furthermore, in State v. Union Tank Car Co., 439 So.2d 377, 382 (La.1983), we recognized that the judicial approval accorded the legislative practice of conferring ministerial powers upon administrative agencies is a product of the complex economic and social problems modern legislation must address, especially in a field as complex and diverse as that of environmental law. We stated:
Because statutes directed at the control of air рollution are intended to encompass infinitely variable environmental conditions, flexibility and adaptability are required in meeting factual situations which could not possibly be foreseen by the legislature. State v. Braun, 378 A.2d 640 (Del. 1977). Thus, we are satisfied that statutes in the area of environmental law need not address each and every factual situation in which air pollution might be involved. Instead it is sufficient if the statutes be general in nature but at the same time retain standards of sufficient clarity to put a violator on notice.
Id. Of course, implicit in the constitutional prohibition against delegations of legislative power is the requirement that the standards which must accompany delegations must not be unlimited, unreasonable, or permit arbitrary action by the administrative body. Id. at 380; Rodriguez, 379 So.2d at 1086.
Applying the foregoing principles in our analysis of the HWCL, we find the statute when construed as a whole prescribes sufficient standards to guide DEQ‘s administration and enforcement of the legislative will. In accordance with the HWCL‘s declared policy and purpose, the HWCL authorizеs DEQ to promulgate regulations implementing a comprehensive state hazardous waste control program consistent with “the minimum criteria hereinafter set forth” and also “consistent with the mandates” of the federal Resource Conservation and Recovery Act of 1976 (RCRA),
any waste, or combination of wastes, which because of its quantity, concentration, physical, or chemical characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, dispоsed of, or otherwise managed. Such definition shall be applied only to those wastes identified and designated as such by the department, consistent with applicable federal laws and regulations.
Additionally, the HWCL authorizes DEQ to issue, continue in effect, revoke, modify, and deny licenses, permits, schedules of compliance, and performance guidelines in accordance with regulations,
Furthermore, in addition to the explicit standards imposed upon DEQ by the legislature in the HWCL, we recognized in Save Ourselves v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1156 (La. 1984), that the Natural Resources article of the Louisiana Constitution18 incorporates the public trust doctrine and “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.” We explained:
The Constitutional standard requires environmental protection “insofar as possible and consistent with the health, safety, and welfare of the people.”
La. Const. art. IX § 1 . This is a rule of rеasonableness which requires an agency or official, before granting approval of proposed action affecting the environment, to determine that adverse environmental impacts have been minimized or avoided as much as possible consistently with the public welfare. Thus, the constitution does not establish environmental protection as an exclusive goal, but requires a balancing process in which environmental costs and benefits must be given full and careful consideration along with economic, social and other factors.
Id. at 1156-57. Construing a provision of the HWCL directing the former Environmental Control Commission19 to promulgate design, construction, and operational standards for hazardous waste treatment, storage, and disposal facilities “which will assure safe treatment, storage, and disposal [of hazardous wastes] without substantial risk to the environment...,”
Viewing at last the HWCL‘s criminal provisions in light of the act as a whole, it becomes clear the HWCL retains “standards of sufficient clarity to put a violator on notice.” Union Tank Car, 439 So.2d at 382. The HWCL declares it unlawful “to initiate or continue the generation, transportation, treatment, storage, or disposal of hazardous wastes ... except in compliance with the notice requirements” of
Any person who knowingly transports, treats, stores, disposes of, or exports any substance in contravention of any provisions
of this Chapter or the regulations or of any permit or license terms and conditions adopted in pursuance thereof, or any person who otherwise knowingly violates any provisions of this Chapter, in such manner that he knows, or should have known, at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than two hundred fifty thousand dollars per day of violation and costs of prosecution, or imprisonment at hard labor for not more than fifteen years, or both.
Here it becomes apparent that the wealth of standards set forth in the HWCL as a whole serves not only to guide DEQ in promulgating regulations in accordance with the legislative will, but also to ensure thereby that the legislature, not DEQ, defines the crime punishable under
Thus, we find the HWCL as a whole, including the “constitutional rule of reasonableness” implemented therein, Save Ourselves, 452 So.2d at 1157, prescribes sufficient standards to guide DEQ‘s exercise of discretion in carrying out each phase of the development, implementation, and enforcement of the State‘s comprehensive hazardous waste control program, including the identification and description of substances constituting hazardous wastes.
In our third and final inquiry under the Schwegmann three-prong test, we find the HWCL is accompanied by adequate procedural safeguards to protect against abuse of discretion by DEQ. First, the HWCL requires DEQ to promulgate regulations “after public hearing thereon in accordance with the Administrative Procedure Act” (APA),
Perhaps more importantly for purposes of ensuring the agency exercises its discretion in accordance with the policy and standards embodied in the enabling statute, the APA provides for judicial review of the validity or applicability of rules “in an action for declaratory judgment in the district court of the parish in which the agency is located.”
Additionally, the HWCL prescribes procedures for legislative review of rules and regulations by standing committees of the House and Senate, subject, however, to executive veto of committee objections.
In sum, consistent with the principles set forth in Schwegmann and inherent in the constitutional separation of powers, the HWCL contains a clear expression of legislative policy, prescribes sufficient standards to guide DEQ‘s administration and enforcement of that policy, and is accompanied by adequate procedural safeguards to protect against abuse of discretion by DEQ. We therefore hold
For the foregoing reasons, the judgment of the court of appeal is reversed, the judgment of the trial court is reinstated, and defendants’ convictions and sentences are affirmed.
REVERSED.
Notes
(1) Any person who willfully or knowingly discharges, emits, or disposes of any substance in contravention of any provision of this Chapter or any regulations or of any permit or license terms and conditions adopted in pursuance thereof, or any person who otherwise knowingly violates any provision of this Chapter, shall, upon conviсtion be subject to a fine of not more than one hundred thousand dollars per day of violation and costs of prosecution, or imprisonment at hard labor for not more than ten years, or both.
. . . .
(3) Any person who knowingly omits any material information or knowingly and intentionally makes any false statement, representation, or certification in any application, record, label, manifest, report, plan, or other document filed or required to be maintained under this Chapter, or under any permit, rule, or regulation issued under this Chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method to be maintained under this Chapter, or under any permit, rule, or regulation issued under this Chapter, shall upon conviction be punished by a fine of not more than twenty-five thousand dollars or imprisonment for not more than six months, or both.
Compare Justice Scalia‘s dissent in Mistretta v. United States, 488 U.S. 361, 417-19, 109 S.Ct. 647, 678-79, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting):
The whole theory of lawful congressional “delegation” is not that Congress is sometimes too busy or too divided and can therefore assign its responsibility of making law to someone else; but rather that a certain degree of discretion, and thus of law-making, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine—up to a point—how small or how large that degree shall be.
. . . .
The focus of controversy, in the long line of our so-called excessive delegation cases, has been whether the degree of generality contained in the authorization for exercise of executive or judicial powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers. I say “so-called excessive delegation” because although that convenient terminology is often used, what is really at issue is whether there has been any delegation of legislative power, which occurs (rarely) when Congress authorizes the exercise of executive or judicial power without аdequate standards. Strictly speaking, there is no acceptable delegation of legislative power.
In State v. Broom, 439 So.2d 357, 366-67 & nn. 5-6 (La.1983), we pointed out that each of the constitutions of Louisiana from 1812 to the present, with the exception of the Constitution of 1868, specifically confines the powers of each of the three departments of government. We then noted:
The 1812 Louisiana Constitution was modeled on the Constitution of Kentucky. See 9 Tul.L.Rev. 244 at 245. Thomas Jefferson was the author of Art. I of the 1812 Louisiana Constitution. Both Jefferson and George Washington expressed concern about consolidation of the separate departments. “The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.” Saint v. Allen, [169 La. 1046] 126 So. at 554, 126 So. 548, quoting Washington‘s Farewell Address.
We find the HWCL‘s incorporation of the minimum requirements of RCRA distinguishable from the situation in State v. Rodriguez, 379 So.2d 1084 (La.1980), where we found an unconstitutional delegation of legislative authority in a statute which directed the secretary of the Department of Health and Human Resources (DHHR) to add a substance to the Louisiana list of controlled dangerous substances “if it is classified as a controlled dangerous substance by the Drug Enforcement Administration of the United States Government.”
In the present case, the HWCL directs DEQ to promulgate regulations “consistent with the mandates” of RCRA.
The Natural Resources article,
The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.