Alabama Dept. of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 2007 WL 1378283 (Ala. Civ. App. May 11, 2007)

Josh Clemons

In 2005 the Alabama Department of Environmental Management (ADEM) sought to assess civil penalties against Georgia Pacific for violating emissions standards. As required by the Alabama Environmental Management Act (Act),1 the agency published notice of the proposed order and opened a thirty-day period for comments from interested parties. The Legal Environmental Assistance Foundation (LEAF), an environmental group, submitted comments asking ADEM to alter the proposed order. ADEM did not do so, and the order issued as proposed.

LEAF subsequently filed a request for a hearing with the Alabama Environmental Management Commission (AEMC), as provided for in the Act. This request ultimately gave rise to the controversy in this case by running afoul of an apparent conflict in the Act about who is entitled to a hearing.

Ala. Code § 22-22A-5(18)a allows “persons who submitted written comments” to request a hearing, “in accordance with Section 22-22A-7.” Sec. 22-22A-7 states that “any person aggrieved by” an ADEM action may request a hearing (emphasis added). The AEMC’s administrative rules on hearings state that an “aggrieved person must either be subject to the order or have submitted timely written comments on the proposed order.”2 Elsewhere in the ADEM administrative rules “aggrieved” is defined as “having suffered a threatened or actual injury in fact.”3

LEAF admitted in its request that is was not “aggrieved” but nonetheless deserved a hearing because it had submitted written comments about the order. ADEM countered that LEAF was not entitled to a hearing because it had not suffered threatened or actual harm from the order. An administrative law judge agreed with ADEM and dismissed LEAF’s request. LEAF appealed that decision to the circuit court in Montgomery, which reversed and ordered AEMC to grant LEAF’s request. ADEM appealed that decision to the Alabama Court of Civil Appeals.

The Appeals Court Decision
The appeals court reasoned that § 22-22A-5(18)a does not create a right to a hearing, but only the right to request a hearing. Sec. 22-22A-7 creates the right to a hearing, and it requires a person to be “aggrieved.” This presented the question of what “aggrieved” means in the statute.

The court rejected LEAF’s assertion that the language in § 22-22A-7 stating that an “aggrieved person must either be subject to the order or have submitted timely written comments on the proposed order” operates as a definition of the term “aggrieved.” Rather, the court determined that the plain language of the statute, as well as previous court cases, indicated that the correct definition of “aggrieved” is “having suffered a threatened or actual injury in fact.” Because LEAF was not “aggrieved,” the group was not entitled to a hearing. The appeals court voided the circuit court’s ruling and dismissed LEAF’s request for a hearing.

Endnotes
1.  Ala. Code § 22-22A-1 to -16.
2.  Ala. Admin. Code r. 335-2-1-.04(2).
3.  Id. r. 335-2-1-.02.