Browning-Ferris Industries of Alabama Inc. v. Alabama Dept. of Environmental Management

• Decision Date: 22 September 1986
• Docket Number: BROWNING-FERRIS,No. 85-7639,85-7639
• Citation: 799 F.2d 1473
• Parties: , 17 Envtl. L. Rep. 20,088 INDUSTRIES OF ALABAMA, INC., a corp. & E. Harrell Hammonds, Plaintiffs-Appellants, v. ALABAMA DEPT. OF ENVIRONMENTAL MGMT.; Leigh Pegues, as Director of the Ala. Dept. of Environmental Mgmt.; Dr. Dewey A. White, Jr., Bryce Scott Davis, Thomas R. DeBray, Dr. Claire B. Elliott, Dr. Cameron M. Vowell, J. Ernest Farnell, and Stanley Graves, as members of the Environmental Mgmt. Commission of the Ala. Dept. of Environmental Mgmt., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1473

799 F.2d 1473

24 ERC 2034, 17 Envtl. L. Rep. 20,088

BROWNING-FERRIS INDUSTRIES OF ALABAMA, INC., a corp. & E Harrell Hammonds, Plaintiffs-Appellants, v. ALABAMA DEPT. OF ENVIRONMENTAL MGMT.; Leigh Pegues, as Director of the Ala. Dept. of Environmental Mgmt.; Dr Dewey A. White, Jr., Bryce Scott Davis, Thomas R. DeBray Dr. Claire B. Elliott, Dr. Cameron M. Vowell, J. Ernest Farnell, and Stanley Graves, as members of the Environmental Mgmt. Commission of the Ala. Dept. of Environmental Mgmt. Defendants-Appellees.

No. 85-7639.

United States Court of Appeals, Eleventh Circuit.

Sept. 22, 1986.

Walter R. Byars, Steiner, Crum & Baker, Montgomery, Ala., for plaintiffs-appellants.

Robert A. Huffaker, Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., for Dr. Dewey A. White, et al.

Mark Alan Peycke, Montgomery, Ala., for Alabama Dept. of Environmental Mgmt.

Appeal from the United States District Court for the Middle District of Alabama.

Before CLARK, Circuit Judge, HENDERSON ^*, and WISDOM ^**, Senior Circuit Judges.

CLARK, Circuit Judge:

This appeal is taken from the district court's dismissal of the plaintiffs' claim for declaratory relief as not ripe for adjudication. Upon consideration of both "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration," Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), we find that the facial challenges to the Alabama statute at issue here are indeed ripe for adjudication, in view of the particular facts presented to us. We, thus, reverse the decision of the district court dismissing this action and remand to that court for further proceedings.

I. Background

During 1981, Browning-Ferris Industries (BFI) began geological testing of certain land in Lowndes County, Alabama to determine the feasibility of locating a hazardous waste treatment facility and disposal site thereon, and in June of that year it acquired an option to buy the land. BFI then filed Part A of its permit application for the site with the Alabama Department of Environmental Management (ADEM) and the U.S. Environmental Protection Agency and was involved in the much more lengthy and complicated process of preparing Part B of its application as of December, 1981. ¹

On December 4, 1981, the Minus Act, providing, inter alia, that "no commercial hazardous waste treatment or disposal site not in existence on or before November 19, 1980, shall be situated without resolution giving [legislative] approval therefor," was added to the law of the State of Alabama. Act of December 4, 1981, No. 81-1189, Sec. 2, 1981 Ala.Acts, 3d Ex.Sess. 523 (codified at Ala.Code Sec. 22-30-5.1 (1984)). After the passage of the Minus Act, it was ADEM's policy to require legislative approval pursuant to the Minus Act before commencing the review of any permit application. This policy was consistent with that section of the Alabama Code which authorizes ADEM to administer and enforce chapter 30 of title 22 of the Code of Alabama, the chapter and title incorporating the Minus Act. See Ala.Code Sec. 22-22A-5(1).

BFI was unsuccessful in attempts to obtain a legislative resolution approving the Lowndes County site as required by the Minus Act, and it discontinued its efforts to submit Part B of its permit application because it found that its efforts would be both costly and futile without a prior legislative approval.

On February 22, 1985, BFI and the owner of the Lowndes County site filed a complaint in the United States District Court for the Middle District of Alabama seeking a declaratory judgment that the Minus Act is invalid. ² The complaint also seeks injunctive relief to bar consideration of the Minus Act during the permitting process and enforcement of the Act should BFI proceed with development of the proposed site without having obtained legislative approval.

The defendants filed motions to dismiss on grounds of lack of jurisdiction and failure to state a claim upon which relief can be granted. ADEM admitted that prior to and at the time of the institution of this litigation its policy was to require legislative approval pursuant to the Minus Act before commencing the review of any permit application; however, subsequent to the filing of this action, ADEM reversed this policy so that thereafter it would receive and make its decision upon permit applications based strictly on the Alabama Hazardous Waste Management Act and the Alabama Hazardous Waste Management Regulations without requiring a prior legislative resolution under the Minus Act. Under this new policy, in the event a permit is granted at the conclusion of the application process, ADEM informed the district court that it would then notify the permittee of the requirements of the Minus Act and would take some undetermined enforcement action should the permittee attempt to locate, construct, or operate a hazardous waste treatment facility or disposal site without complying with the Minus Act.

ADEM further stated that the permitting process will require approximately five years from the date of filing of Part B of the permit application and that it will undertake no effort at enforcement of the Minus Act against any applicant prior to the conclusion of that five-year period. The district court then ruled, based upon this policy reversal by ADEM, that the claim for declaratory relief is not ripe for adjudication because "Browning-Ferris will face compliance with the Minus Act only in the event it receives a permit from the Department...." The district court further held that the claims for injunctive relief have been rendered moot.

II. Discussion

The Supreme Court has most recently addressed the question of ripeness with regard to declaratory judgment actions in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission:

The basic rationale of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). In Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." Id. at 149, 87 S.Ct. at 1515.

461 U.S. 190, 200-01, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983).

In its arguments on appeal, appellant, BFI, has focused on the second part of this "twofold aspect" of ripeness--"the hardship to the parties of withholding court consideration"--while the appellees have instead emphasized "the fitness of the issues for judicial decision."

BFI argues that ADEM's "new policy," which merely changes the situation from one of immediate harm by enforcement of the challenged statute as a condition precedent to reviewing a permit application to one of threatened harm by enforcement of the statute after considering BFI's application, does not make this case any less ripe for decision. It states that prior to passage of the Minus Act it had already expended approximately $518,500 in developing the necessary geological information for the permitting process plus $103,000 to acquire an option on the land and was within 30 days of submitting Part B of its application when ADEM adopted its "old policy" of requiring legislative approval by resolution under the Minus Act prior to considering a permit application. BFI further notes that it now has an investment of over $1,175,000 in the project, an investment which it must either abandon or supplement with a substantial additional investment to prepare a current Part B and complete the permitting process. Moreover, even then, it must wait approximately five years before it will find out if its permit will be approved, and only then would it find out how the Minus Act would come into play if its request for a declaratory judgment is declared unripe for decision now.

BFI likens its situation here to that in Pacific Gas & Electric concerning which the Supreme Court stated:

The question ... is predominantly legal.... Moreover, postponement of decision would likely work substantial hardship on the utilities. As the Court of Appeals cogently reasoned, for the utilities to proceed in hopes that, when the time for certification came, either the required findings would be made or the law would be struck down, requires the expenditures of millions of dollars over a number of years, without any certainty of recovery if certification were denied.

Id. at 201, 103 S.Ct. at 1720-21 (footnote omitted). Paraphrasing this passage from Pacific Gas, the appellants state:

[F]or BFI to proceed in hopes that, when the time for permitting came, either the required legislative approval would be given or the Minus Act would be struck down requires the expenditures of substantial dollars over a number of [five] years, without any certainty of recovery if legislative approval were denied.

Brief of Plaintiffs-Appellants at 24.

Again paraphrasing Pacific Gas & Electric, the company argues that for ADEM to require BFI to proceed without knowing whether the Minus Act is valid would impose "a palpable and considerable hardship." 461 U.S. at 201-02, 103 S.Ct. at 1721.

Thus, appellants urge, as in the Rail Reorganization Act Cases, 419 U.S. 102, 144, 95 S.Ct. 335, 359, 42 L.Ed.2d 320 (1974), that "decisions to be made now or in the short future may be affected" by whether the courts act, and that " '[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is...