U.S. Water News Online
MONTGOMERY, Ala. -- The state Supreme Court has ruled that the Alabama Department of Environmental Management did not follow proper procedures when establishing rules concerning the discharge of pollutants into Alabama waterways.
In a concurring opinion, Chief Justice Roy Moore questioned whether the powers of agencies like ADEM to make regulations and judge violations of rules violate the doctrine of separation of powers.
Moore said such responsibilities should fall under the executive, legislative or judicial branches of government.
``This case typifies, in a nutshell, the problems with administrative agencies: they formulate, implement, and adjudicate regulations that have the force of law, without having the legitimacy of the people behind them,'' Moore said.
In its 8-1 decision, the court said ADEM violated the rules of the Alabama Administrative Procedures Act in 1997 when the agency adopted procedures for implementing regulations concerning discharge of pollutants into Alabama waterways. The Legal Environmental Assistance Foundation filed suit complaining that ADEM should have held hearings and taken written comments from the public before adopting the rules.
A circuit court and the Alabama Court of Criminal Appeals sided with ADEM, but the Supreme Court opinion written by Justice Douglas Johnstone said the administrative procedures act requires ADEM to hold hearings before adopting rules and procedures.
An attorney for the Legal Environmental Assistance Foundation, David Ludder of Tallahassee, Fla., said the case now goes back to a lower court, which could order ADEM to start over in the process of implementing the water pollution rules.
``We certainly hope ADEM will listen to wishes of the people who want to protect water quality,'' Ludder said.
A spokesman for ADEM, Scott Hughes, said the agency's attorneys were reviewing the ruling and would have no immediate comment
While questioning the constitutionality of some actions of agencies like ADEM, Moore said in his concurring opinion it is important for the courts to make sure that agencies like ADEM follow the laws that govern them, such as the Alabama Administrative Procedures Act.
Moore said regulatory agencies like ADEM and the federal Environmental Protection Agency have become a ``fourth branch'' of government.
``Perhaps the functions performed by these agencies should not be undertaken by government at all,'' Moore said in the opinion.
Justice Gorman Houston cast the only dissenting vote, saying that ADEM was merely implementing federal regulations and ``not creating new state rules.''
Return to the U.S. Water News Archives page Or Return to the U.S. Water News Homepage
Editor@uswaternews.com
*Your Name:
*Your Email:
*Friend's Email:
Use a comma to separate e-mail addresses:
*Your Comments:
Hi, I thought you might like to read this article.
*Required Fields