Department of Transp. v. Armacost

Decision Date03 November 1987
Docket NumberNo. 5,5
Citation532 A.2d 1056,311 Md. 64
PartiesDEPARTMENT OF TRANSPORTATION et al. v. John L. ARMACOST et al. Sept. Term 1987.
CourtMaryland Court of Appeals

Ralph S. Tyler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Andrew H. Baida, Ann Marie DeBiase and Edward R.K. Hargadon, Asst. Attys. Gen., on brief), Baltimore, for appellants.

William L. Reynolds and Shale D. Stiller (Samuel A. Belcher and Frank, Bernstein, Conaway & Goldman, Baltimore and Charles W. Thompson, Jr., Co. Atty. for Carroll County, Westminster, on brief), for appellees.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ., and JAMES F. COUCH, Jr., Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

MURPHY, Chief Judge.

The issue presented is whether the General Assembly, in enacting Maryland's Vehicle Emissions Inspection Program (VEIP), Maryland Code (1987 Repl.Vol.) §§ 23-201 through 23-208 of the Transportation Article, violated the separation of powers provisions of Article 8 of the Maryland Declaration of Rights by unconstitutionally delegating legislative power to an administrative agency. 1


In 1970, Congress enacted the Federal Clean Air Act to combat the growing problem of air pollution caused, in part, by the increasing use of motor vehicles. 42 U.S.C. § 7401(a)(2) (1982). 2 Among the Act's purposes was the protection of public health by improving the quality of the nation's air. § 7401(b)(1). While placing primary responsibility for the prevention and control of air pollution with the states, § 7401(a)(3), the Act empowered the Administrator of the Federal Environmental Protection Agency (EPA) to establish national ambient air quality standards for various pollutants, and to promulgate rules and regulations for attaining those standards. 3 § 7409. The Act authorized the EPA to divide the country into "air quality control region[s]." § 7407(c). It required each state to submit for EPA approval a "state implementation plan" (SIP), setting forth the state's program for achieving the requisite air quality standards in each of its control regions by 1975. § 7410.

Amendments to the Clean Air Act in 1977 extended the submission date of a SIP to January 1, 1979, for states with "nonattainment areas," i.e., regions that had failed to meet the air quality standards by 1975. § 7501(2). National air quality standards were to be attained "as expeditiously as practicable," but no later than December 31, 1982. § 7502(a)(1). States unable by 1982 to achieve the national standards for two particular pollutants--photochemical oxidants and carbon monoxide--could request an extension until December 31, 1987. § 7502(a)(2). In exchange for this extension, however, a state's SIP had to "establish a specific schedule for implementation of a vehicle emission control inspection and maintenance program...." § 7502(b)(11)(B). Noncompliance could result in a loss of federal highway funds, § 7506(a), and of sewage treatment plant construction grants, § 7616.

Two of Maryland's six air quality control regions were found by both the State and the EPA to be nonattainment areas for ozone and carbon monoxide standards. These two regions were the Metropolitan Baltimore Intrastate Air Quality Control Region, consisting of Baltimore City and Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties, and the Maryland portion of the National Capital Interstate Air Quality Control Region, consisting of Prince George's and Montgomery Counties. 4 Because the requisite air quality standards for ozone and carbon monoxide could not be attained in these two regions by the 1982 deadline, the State, in January 1979, formally requested an extension of the EPA deadline.

Maryland's VEIP, codified within the Transportation Article as Title 23, Subtitle 2, was enacted by ch. 421 of the Acts of 1979. As originally enacted, § 23-201 defined "Emissions standard" in terms of a limitation upon "the quantity, quality, rate, or concentration of emissions from a motor vehicle," including a requirement that "relates to the operation or maintenance of a motor vehicle to assure continuous emission reduction."

Section 23-202(a) required that by October 1, 1979, the MVA publish "proposed rules and regulations providing, to the extent required by federal law, for the establishment of an emissions inspection program to commence no earlier than July 1, 1980 and no later than December 31, 1982." Prior to drafting the proposed rules, the MVA was required by this subsection to conduct two public hearings, one each in the Washington and Baltimore metropolitan areas, in order to receive public comment. The MVA was required by the statute to submit its proposed rules and regulations to each House of the General Assembly by a specified date in 1980; it was also required to conduct public education and awareness programs on a regular basis "to inform the citizens concerning the benefits of the emissions program." The subsection specified that after December 31, 1983, the inspection program would be mandatory for all motor vehicles in the State "not otherwise exempted." It provided that unless legislation established a different program at the 1980 session of the General Assembly, "the proposed rules and regulations, with any amendments that shall have been concurred in by joint resolution of the General Assembly, shall take effect as provided in the rules and regulations."

Section 23-202(b) required that an inspection system be established in the State "for annual inspection, under a schedule adopted by the [MVA] Administrator, of those motor vehicles required to be inspected." It mandated the construction of inspection facilities in strategic locations "that will best serve the public convenience." Section 23-202(c). Section 23-203 directed that the MVA provide in its rules and regulations "for the establishment of inspection facilities." Section 23-204 required that the inspection determine "whether each vehicle complies with the emission standards established under this subtitle for that vehicle," and that the MVA set the fee for the inspection within specified limits. Section 23-205. Section 23-206 required owners of motor vehicles registered in Maryland to "have the vehicle inspected, as required under this subtitle." Section 23-207 authorized the MVA to adopt rules and regulations "as required for purposes of implementation, administration, regulation, and enforcement of the provisions of this subtitle, including rules and regulations that, consistent with federal law, exempt certain vehicles from the inspections under this subtitle." This section also directed the Secretary of Health and Mental Hygiene, 5 with the concurrence of the Secretary of Transportation, to publish rules and regulations establishing "emission standards to be used for the inspection of motor vehicles under this subtitle." 6

The VEIP was amended by the General Assembly during its 1980, 1981, 1982, 1983, and 1985 sessions. See, e.g., ch. 725 of the Acts of 1980 (start of the mandatory VEIP extended to "[a]fter December 31, 1982"); ch. 492 of the Acts of 1982 (extended to "[a]fter June 30, 1983"); ch. xxxxxxx 312 of the Acts of 1983 (start-up postponed until after December 31, 1983). The amendments also increased the inspection fee, ch. 725 of the Acts of 1980; allowed the MVA to issue hardship waivers, ch. 517 of the Acts of 1983, and waivers for any vehicle that failed the emissions test if the owner had actually spent a specified amount for repairs to the vehicle, ch. 725 of the Acts of 1980; exempted ambulances from VEIP inspection, ch. 549 of the Acts of 1983; and instructed the Secretaries of the Environment and Transportation to jointly report to designated legislative committees as to any modifications to the Federal Clean Air Act. See ch. 492 of the Acts of 1982; ch. 19 of the Acts of 1985. The 1982 amendments also created a special joint committee on VEIP, comprised of three senators and three delegates to "regularly consult" with the Secretary of Transportation on the administration of the VEIP. In addition, ch. 106 of the Acts of 1985 (the Budget Bill) required an evaluation by the Departments of Transportation and Health and Mental Hygiene of the VEIP's effectiveness. During its 1986 session, the legislature passed Senate Joint Resolution 22 calling for the establishment of a VEIP Task Force to "review options and make recommendations for the future of the Vehicle Emissions Inspection Program." The Task Force, which was composed, inter alia, of three delegates, three senators, and representatives from the Department of Transportation and the Department of Health and Mental Hygiene, issued its findings and recommendations to the General Assembly and the Governor in January 1987.


On January 11, 1984, the County Commissioners of Carroll County, in their individual and official capacities, the town of Mt. Airy, its mayor, and a resident of Carroll County (appellees) filed a petition for declaratory judgment and an interlocutory injunction in the Circuit Court for Carroll County. Named as defendants were the Department of Health and Mental Hygiene, the Department of Transportation, and the MVA (the State). The appellees challenged the constitutionality of the VEIP's application to Carroll County, raising the issues of equal protection, substantive and procedural due process, illegal search and seizure, and unlawful taking of property. On January 31, 1984, the court (Gilmore, J.) entered an interlocutory order enjoining the enforcement of the VEIP in Carroll County.

On appeal, we vacated the interlocutory injunction and remanded the case to the lower court for further proceedings. We held that: the VEIP's tailpipe tests did not constitute a search and seizure within the meaning of the fourth amendment; that the inclusion of Carroll County and the exclusion of other rural counties in the VEIP was not a violation of...

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