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
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
Moore said regulatory agencies like ADEM and the federal
Environmental Protection Agency have become a ``fourth branch'' of
``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.''
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