City of Baton Rouge v. La. Dep't of Envtl. Quality

• Decision Date: 28 April 2015
• Docket Number: 2014 CA 1486.,Nos. 2014 CA 1485,s. 2014 CA 1485
• Citation: 172 So.3d 13
• Parties: CITY OF BATON ROUGE, Parish of East Baton Rouge v. LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY Louisiana Environmental Action Network and Bertha L. Myles v. Louisiana Department of Environmental Quality.
• Court: Court of Appeal of Louisiana — District of US

172 So.3d 13

CITY OF BATON ROUGE, Parish of East Baton Rouge
v.
LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY
Louisiana Environmental Action Network and Bertha L. Myles
v.
Louisiana Department of Environmental Quality.

Nos. 2014 CA 1485
2014 CA 1486.

Court of Appeal of Louisiana, First Circuit.

April 28, 2015.

172 So.3d 15

Daria Burgess Diaz, New Orleans, Louisiana City of Baton Rouge, Parish of East Baton Rouge, LA, for Plaintiff/Appellant.

Douglas J. Cochran, W. Brett Mason, Baton Rouge, Louisiana, Elliott B. Vega, Kathy M. Wright, Spencer B. Bowman, Courtney J. Burdette, Baton Rouge, LA, for Defendant/Appellee Louisiana Department of Evironmental Quality.

Timothy W. Hardy, V. Joyce Matthews, W.L. West, Carlton Jones, III, Baton Rouge, LA, for Intervenor/Appellee Louisiana Land Acquisition, LLC.

Before: GUIDRY, THERIOT, and DRAKE, JJ.

Opinion

THERIOT, J.

The appellant, City of Baton Rouge Parish of East Baton Rouge, (“City Parish”), filed this appeal contesting the dismissal of their petition for judicial review, which challenged the decision of the Louisiana Department of Environmental Quality (“LDEQ”) to issue a Type I Solid Waste Disposal Permit to Louisiana Land Acquisitions (“LLA”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In October 2006, LLA applied to LDEQ for a Type I Standard Solid Waste Disposal Permit (the “2006 Permit Application”) for the operation of an industrial waste landfill on 93 acres located at Brooklawn Drive, two miles west of Scenic Highway in Baton Rouge, East Baton Rouge Parish, Louisiana, in or near the Alsen/St. Irma Lee Community (the “Landfill”). On April 13, 2009, after determining that “there [was] sufficient capacity at existing permitted landfills to serve the area proposed in the application,” LDEQ denied the 2006 Permit Application. Pertinent to some of the City Parish's arguments in this appeal, LLA repeatedly sought to have the denial reversed and the 2006 Permit Application granted, and LLA's appeal of LDEQ's denial of the 2006 Permit Application remains pending in the 19th Judicial District Court, Docket No. 579,336 (the “Pending 2006 Appeal”). On April 12, 2013, LLA filed an “Unopposed Motion and Order to Continue Scheduling Conference” in the Pending 2006 Appeal. The trial court signed the order continuing the proceeding without date. No further steps have been taken in the Pending 2006 Appeal.¹

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On March 14, 2014, LLA again applied to LDEQ for a Type I Solid Waste Disposal Permit (the “2013 Permit Application”) for the operation of an industrial waste landfill on the same property that was the subject of the 2006 Permit Application. LDEQ issued the Permit to LLA on April 4, 2014 (the “Permit” or the “2014 Permit Decision”).²

On May 16, 2014, City Parish filed a petition seeking judicial review of LDEQ's issuance of the Permit³ (“City Parish v. LDEQ ”). On May 21, 2014, Louisiana Environmental Action Network (“LEAN”)⁴ and Ms. Bertha L. Myles (“Myles”), a resident of a community neighboring the Landfill, also filed a petition for judicial review of LDEQ's decision to grant the Permit⁵ (“LEAN v. LDEQ ”). Both petitions for judicial review argued that LDEQ lacked authority to grant the Permit, because the trial court functions

as an appellate court when reviewing an LDEQ final decision, and thus, LLA's Pending 2006 Appeal divested LDEQ of jurisdiction and authority to consider and render a decision on the 2013 Permit Application, which had been filed by the same applicant for the same industrial solid waste disposal facility. City Parish also argued that LDEQ had failed to properly consider permitted solid waste capacity; that LDEQ's record lacked adequate proof

172 So.3d 17

of zoning from City Parish; and that the permit contained technical defects. City Parish sought a stay of the permit decision pursuant to La. R.S. 30:2050.22 during the pendency of the appeal.

LLA intervened in the proceedings for judicial review, and City Parish v. LDEQ and LEAN v. LDEQ were consolidated pursuant to unopposed motions for transfer and consolidation.

LDEQ and LLA excepted to the petitions for judicial review on the basis of no right of action and lack of subject matter jurisdiction, and alternatively moved to dismiss the petitions. LDEQ and LLA argued that City Parish had no right of action to bring the petition for judicial review because City Parish failed to raise the issues complained of prior to the issuance of the final permit decision by LDEQ as required by La. R.S. 30:2014.3 and that the trial court lacked subject matter jurisdiction over the petition for the same reason.

At a July 21, 2014 hearing, the trial court sustained the exceptions raising the objection of no right of action and dismissed the petition for judicial review with prejudice, assessing costs to the City Parish. A judgment evidencing the ruling was signed on August 7, 2014. City Parish timely appealed the judgment of the trial court.

ASSIGNMENTS OF ERROR

City Parish alleges five assignments of error:

A. The district court erred by ruling that LDEQ had subject matter jurisdiction to review the same subject matter and decide the same issues before the district court in connection with LLA's pending de novo review of LDEQ's 2009 Permit Denial.

B. The district court erred in finding that La. R.S. 30:2014.3 entitled “Review of secretary's public trustee issues, “applies to all issues arising in LDEQ permit proceedings, including the independent statutory mandate that “[p]ermitted capacity shall be considered along with other relevant factors in the permitting of solid waste.” La. R.S. 30:2162(B)(2).

C. The district court erred in concluding that all issues arising in the context of LDEQ permit applications are public trustee issues as defined by the Louisiana Constitution and Save Ourselves v. La. Envt'l Control Comm'n, 452 So.2d 1152 (La.1984).

D. The district court erred in holding that La. R.S. 30:2014.3 requires each person seeking judicial review of an LDEQ permit decision to independently raise during the administrative proceeding each and every issue raised in its Petition for Judicial Review when those issues indisputably are part of the administrative record before LDEQ and indisputably were considered by LDEQ in its Reasons for Decision.

E. The district court erred in finding that the issues raised by a Metro Council member appearing at a public hearing in his official representative capacity cannot later be raised by the City Parish in its appeal.

DISCUSSION

Article 9, § 1 of the Louisiana Constitution sets forth the public policy of protecting our natural resources and environment:

The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of

172 So.3d 18

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.

The LDEQ is the primary agency in the state concerned with environmental protection and regulation and has been explicitly granted jurisdiction over matters affecting the regulation of solid waste disposal.

La. R.S. 30:2011(A)(1). The LDEQ Secretary has authority to grant or deny permits. La. R.S. 30:2011(D)(2) ; Harrelson Materials Mgmt., Inc. v. Louisiana Dep't of Envtl. Quality, 2006–1822 (La.App. 1st Cir.6/20/07) (unpublished opinion). Under La. R.S. 30:2014(A)(4), the LDEQ Secretary is mandated to act as the primary public trustee of the environment and to consider and follow the will and intent of the Constitution of Louisiana and Louisiana statutory law in making any determination relative to the granting or denying of permits.

Louisiana Revised Statutes 30:2022(A)(1) provides that any person seeking a permit shall file a written application for such with the Secretary, and La. R.S. 30:2022(A)(2) provides that the Secretary “shall promptly consider such application and take such action thereon as he deems appropriate in accordance with law.” Under La. R.S. 30:2022(B)(2), the “final decision shall not extend beyond three hundred days from the date the application is submitted.”

LDEQ's authority to consider the 2013 Permit Application

City Parish's first assignment of error maintains that LDEQ lacked subject matter jurisdiction to issue a decision on the 2013 Permit Application while a de novo review of the 2006 Permit Application remained pending before the trial court.⁶

Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The trial...