Karr v. Va. Dep't of Envtl. Quality

• Decision Date: 09 August 2016
• Docket Number: Record No. 1715–15–2.
• Citation: 789 S.E.2d 121,66 Va.App. 507
• Parties: Sue Karr, Harold H. McCall, James R. Webb and Carol Ann White v. Virginia Department of Environmental Quality and David K. Paylor, Director.
• Court: Virginia Court of Appeals

66 Va.App. 507

789 S.E.2d 121

Sue Karr, Harold H. McCall, James R. Webb and Carol Ann White

v.Virginia Department of Environmental Quality and David K. Paylor, Director.

Record No. 1715–15–2.

Court of Appeals of Virginia, Richmond.

Aug. 9, 2016.

Tammy L. Belinsky, Copper Hill, for appellants.

Matthew L. Gooch, Assistant Attorney General (Mark R. Herring, Attorney General; John W. Daniel, II, Deputy Attorney General; Lynne C. Rhode, Senior Assistant Attorney General, on brief), for appellees.

Present: HUMPHREYS, O'BRIEN and MALVEAUX, JJ.

HUMPHREYS, Judge.

Appellants Sue Karr, Harold H. McCall, James R. Webb, and Carol Ann White (collectively “appellants”) appeal the September 30, 2015 decision of the Circuit Court of the City of Richmond (the “circuit court”) upholding the adoption of Permit(s) by Rule Regulation for the Construction and Operation of Small Wind Energy Projects (“the Regulations”) by the Virginia Department of Environmental Quality (“DEQ” or “the Department”) and approved by the Director of DEQ, David K. Paylor (“DEQ Director Paylor”), pursuant to Code §§ 10.1–1197.5 –1197.11, Virginia Administrative Process Act (APA) Code §§ 2.2–4026 –4027, and Rule 2A:4 of the Rules of the Supreme Court of Virginia. On cross-appeal, DEQ appeals the circuit court's May 23, 2011 decision to overrule DEQ's plea in bar.

The appellants assign six errors to the circuit court's September 30, 2015 decision. The appellants claim that it was error for the circuit court to find: 1) that DEQ complied with the statutory authority given to it pursuant to Code § 10.1–1197.6 because the Regulations do not require the analysis of beneficial and adverse impacts of proposed wind energy projects of wildlife; 2) that DEQ lawfully predetermined significant adverse impacts to wildlife without requiring the collection of site-specific information as mandated by Code § 10.1–1197.6(B)(7) ; 3) that the term “wildlife” is ambiguous and that DEQ's interpretation of the term has special weight; 4) that DEQ complied with its statutory authority pursuant to Code § 10.1–1197.6 because the regulation “unsettles, disregards, alters, or violates the pre-existing system of statutory provisions for the regulation of impact(s) to threatened and endangered [referred to throughout the record as ‘T&E’] species¹ ”; 5) that specialization or technical assistance offered by a Regulatory Advisory Panel (“RAP”) justified non-compliance with statutory authority; and 6) that each party must bear its own costs. On cross-appeal, DEQ contends that this appeal was not timely filed consistent with the requirements of Rule 2A:2(a) of the Rules of the Supreme Court of Virginia because the law in effect at the time was that a regulation is finally adopted for the purposes of appeal at the time the Director of DEQ signed the Regulations and not at the time the Regulations were published in the Register of Regulations.

I. Background

In 2009, the General Assembly enacted Code §§ 10.1–1197.5 through –1197.11 granting new authority to DEQ to

develop, by regulations ... a permit by rule or permits by rule if it is determined by the Department that one or more such permits by rule are necessary for the construction and operation of small renewable energy projects, including such conditions and standards necessary to protect the Commonwealth's natural resources. ^{[2 ]}

Code § 10.1–1197.6(A).

Most relevant in the case at bar, DEQ was required to initially “develop the permit by rule for wind energy, which shall be effective as soon as practicable, but not later than January 1, 2011.”³ Id.

On October 22, 2010, DEQ Director Paylor signed the Regulations establishing the Permit by Rule (“PBR”) for wind energy. On November 22, 2010, the Regulations were published in the Register of Regulations, with an effective date of December 22, 2010. 27 Va. Reg. Regs. 640 (Nov. 22, 2010). On December 22, 2010, the appellants filed their notice of appeal with DEQ. On January 21, 2011, the appellants filed their petition of appeal with the circuit court. On February 17, 2011, DEQ filed a plea in bar with the circuit court for lack of jurisdiction arguing that the appellants failed to comply with the timely filing requirements of Rule 2A:2(a) of the Rules of the Supreme Court of Virginia.⁴ On May 23, 2011, the circuit court found “that the petition [sic] was filed within 30 days of publication of regulation” and it overruled DEQ's plea in bar.

Over four years later, on September 30, 2015, the circuit court issued its final decision on the merits in favor of DEQ. The circuit court found:

[T]he General Assembly expressly conferred authority to DEQ to determine what constitutes a significant adverse impact to “wildlife” and in doing so, they did not define the term “wildlife.” The term wildlife, without more, can be read in more than one way and is neither clear nor definite in and of itself. As such, the term wildlife is ambiguous and is subject to interpretation by the agency charged with enforcing the statute.

In its ruling, the circuit court also found that: 1) DEQ complied with the statutory authority given to it pursuant to Code § 10.1–1197.6 ; 2) because the term “wildlife” was ambiguous, DEQ's interpretation of wildlife was to be given special weight; 3) DEQ used its discretion appropriately and reasonably in its interpretation of the term “wildlife” as used in Code § 10.1–1197.6(B)(7) ; and 4) DEQ used its discretion appropriately and reasonably in determining the appropriate triggers for the creation of mitigation plans.

II. Analysis

A. Standard of Review

“A question of statutory interpretation is subject to review de novo on appeal.”

Bennett v. Commonwealth , 60 Va.App. 656, 665, 731 S.E.2d 40, 44 (2012).

B. DEQ's Cross–Appeal: Denial of Plea in Bar

We first address DEQ's cross-appeal regarding the circuit court's May 23, 2011 decision overruling DEQ's plea in bar. DEQ maintains that the circuit court erred in overruling the plea in bar based on a failure of the appellants to comply with the 30–day notice requirement of Rule 2A:2(a).

The circuit court found the appellants' notice of appeal to the Department timely, thus, it decided that it had jurisdiction over the case. A timely-filed notice of appeal is necessary to confer jurisdiction upon the court to hear the appeal. Bd. of Supervisors v. Bd. of Zoning Appeals , 271 Va. 336, 346, 626 S.E.2d 374, 380 (2006). Under Virginia law, if the circuit court was without jurisdiction, then it was error to address the appellants' challenges to the regulation. See Russell v. Va. Bd. of Agric. & Consumer Servs. , 59 Va.App. 86, 95, 717 S.E.2d 413, 417 (2011).

This is an action appealing a regulation adopted by DEQ; as such, it is governed by the APA. Pursuant to the APA, “[a]ny person affected by and claiming the unlawfulness of any regulation ... shall have a right to the direct review thereof by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the Rules of Supreme Court of Virginia.” Code § 2.2–4026(A). At the time the Regulations were promulgated, Rule 2A:2(a) required that “[a]ny party appealing from a regulation or case decision shall file, within 30 days after adoption of the regulation or after service of the final order in the case decision, a notice of appeal signed by the appealing party or that party's counsel.” (Emphasis added). The issue presented by DEQ's cross-appeal is identical to the issue this Court addressed in Russell : “when the point of ‘adoption’ occurs when an agency creates a regulation such as to trigger the beginning of the 30–day period in which to note an appeal.” Russell, 59 Va.App. at 91, 717 S.E.2d at 415.

After DEQ promulgated the Regulations in question and the Russell opinion was issued, the Rules of the Supreme Court of Virginia and the Code of Virginia were amended to clarify when the point of adoption occurs, thus creating the triggering event which begins the 30–day period to note an appeal. In July 2014, Rule 2A:2(a) was amended to clarify the term “adoption,” by adding “[w]ith respect to an appeal from a regulation, the date of adoption or readoption shall be the date of publication in the Register of Regulations.” Additionally, in 2014 the General Assembly amended Code § 2.2–4026 and added subsection B which states:

[n]otwithstanding any other provision of law or of any executive order issued under this chapter, with respect to any challenge of a regulation subject to judicial review under this chapter, the date of adoption or readoption of the regulation pursuant to § 2.2–4015 for purposes of appeal under the Rules of Supreme Court shall be the date of publication in the Register of Regulations.

Code § 2.2–4026(B).

The 2014 modifications to the Rules and the Code clearly establish the date of adoption to be the date of its publication in the Register of Regulations. However, those modifications do not retroactively determine when the point of “adoption” occurred prior to their implementation. Thus, we must revisit the same issue discussed at length, but never decided, in Russell.

In Russell, this Court extensively discussed that the “problem with determining the date of adoption for the purpose of Rule 2A:2 is that the APA uses the term ‘adoption’ at several different points and in different contexts.” 59 Va.App. at 91, 717 S.E.2d at 415. This Court cannot be any clearer in its analysis than it was in Russell :

Code § 2.2–4013 is the statute which is relevant to this analysis, and it references “adoption” in three different ways. Under subsection A, “adoption” first occurs when the agency decides to adopt a regulation following public comment. The statute specifically says,

“Not less than fifteen days following the completion of the public comment period provided for in § 2.2–4007.03, the agency may (i) adopt the proposed regulation if the Governor has no objection to the regulation; (ii) modify and adopt the proposed regulation after considering and

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