LEGAL ENVIRON. ASSISTANCE FOUND. v. ADEM

• Decision Date: 13 June 2003
• Citation: 883 So.2d 198
• Parties: LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC. v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT et al.
• Court: Alabama Court of Civil Appeals

883 So.2d 198

LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC. v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT et al.

2020040.

Court of Civil Appeals of Alabama.

June 13, 2003.

Certiorari Denied December 12, 2003.

David A. Ludder, Tallahassee, Florida, for appellant.

James L. Wright and Olivia Jenkins, Alabama Department of Environmental Management, for appellee.

Alabama Supreme Court 1021671.

On Application for Rehearing

THOMPSON, Judge.

The opinion of March 21, 2003, is withdrawn, and the following opinion is substituted therefor. These parties have been before this court before. Legal Environmental Assistance Foundation, Inc. ("LEAF"), sued the Alabama Department of Environmental Management ("ADEM"), alleging that ADEM had failed to follow the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975 ("the AAPA"), in promulgating its Implementation Procedures for Tier 2 of the Antidegradation Policy, Ala. Admin. Code (ADEM), Rule 335-6-10-.04(03), and seeking a determination that the Implementation Procedures were invalid. The trial court entered a summary judgment in favor of ADEM, and, on December 15, 2000, this court affirmed without an opinion. See Legal Envtl. Assistance Found. v. Alabama Dep't of Envtl. Mgmt. (No. 2990902, Dec. 15, 2000), 822 So.2d 490 (Ala.Civ.App. 2000) (table). Our supreme court reversed, holding that the Implementation Procedures were "rules" under the AAPA and, therefore, that ADEM was required to follow the rulemaking provisions of the AAPA in enacting the Implementation Procedures. Ex parte Legal Envtl. Assistance Found., Inc., 832 So.2d 61 (Ala. 2002)

.

On May 16, 2002, the trial court, on remand, entered a judgment in which it declared the adoption of the Implementation Procedures invalid and enjoined ADEM from using those procedures until such time as they were adopted in compliance with the requirements of the AAPA. (Those Implementation Procedures are hereinafter referred to as "the invalid Implementation Procedures.") In its May 16, 2002, judgment, the trial court also enjoined ADEM from issuing permits for the discharge of pollutants into the State's waters until such time as some implementation procedures were adopted pursuant to the requirements of the AAPA. Also in that judgment, the trial court stated that LEAF could file a motion seeking an award of an attorney fee.

On June 24, 2001, LEAF filed in the trial court a motion seeking an award of an attorney fee; LEAF argued that it was entitled to an attorney fee because, it contended, the litigation it had initiated had conferred a benefit upon the general public. LEAF sought a total attorney-fee award of $111,450. ADEM filed an opposition to LEAF's request for an attorney fee, and LEAF responded to that opposition. On August 20, 2002, ADEM filed a "Supplemental Memorandum in Opposition to [LEAF's] Motion for [an] Award of Attorney Fees," in which it argued that LEAF's claim for an attorney fee was barred by Art. I, § 14, Ala. Const. of 1901, and the doctrine of sovereign immunity. LEAF did not respond to that argument.

On August 29, 2002, the trial court entered a judgment in which it denied LEAF's request for an attorney fee; the trial court did not state the basis for its ruling. On October 9, 2002, LEAF appealed.

The facts detailing the parties' dispute are set forth as follows in our supreme court's opinion in Ex parte Legal Environmental Assistance Foundation, Inc., supra:

"The Federal Antidegradation Policy, 40 C.F.R. § 131.12, requires a state to `develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy.' The Federal Antidegradation Policy specifies that statewide `policy and implementation methods shall, at a minimum, be consistent with the following': (1) protect existing uses of `instream water' and protect the level of water quality necessary to protect the existing uses; (2) maintain and protect `the quality of waters exceed[ing] levels necessary to support propagation of fish, shellfish, and wildlife' unless a state finds that lower water quality is necessary, but, in any event, the state must assure `water quality adequate to protect existing uses fully'; (3) assure that water quality and uses are not lowered below the existing statutory and regulatory requirements; and (4) maintain and protect high-quality waters where those waters constitute `an outstanding National resource.' 40 C.F.R. § 131.12 (emphasis added [in Ex parte Legal Envtl. Assistance Found.]).

"ADEM revised its statewide `antidegradation policy,' Ala. Admin. Code (ADEM), Rule 335-6-10-.04, effective April 3, 1991, in response to the mandates of the Federal Antidegradation Policy. However, the amended statewide antidegradation policy adopted by ADEM did not contain any methods or procedures for implementing the policy.

"In 1995, LEAF complained to the EPA that ADEM had not adopted any methods or procedures to implement the revised antidegradation policy. In April 1997, the EPA regional administrator for Region IV in Atlanta informed ADEM by letter that he was `considering a recommendation' to the EPA administrator in Washington that `a federal promulgation is necessary to bring the statewide antidegradation policy into compliance with the requirements of the Clean Water Act.' He asked ADEM `to take appropriate actions.' The EPA regional administrator informed ADEM that if, within 90 days of its receipt of the letter, ADEM did not submit procedures to implement the statewide antidegradation policy, then he would recommend that the EPA administrator in Washington `prepare and publish proposed federal regulations setting forth a revised statewide antidegradation policy.'

"Shortly thereafter, ADEM developed and adopted the Implementation Procedures now at issue before us, which allow the maximum pollution allowable under the Federal Antidegradation Policy and which establish the criteria to be met, and the procedures to be followed to demonstrate that those criteria have been met, by applicants for permits to discharge pollutants into Alabama waterways. The Implementation Procedures contain an intermingling of forms and procedures. On August 25, 1999, the EPA regional administrator for Region IV approved the Implementation Procedures.

"In adopting the Implementation Procedures allowing the pollution and establishing the criteria and procedures for permission to discharge, ADEM did not afford the public notice or opportunity to be heard or otherwise follow the requirements of the AAPA or the [Alabama Environmental Management Act] for the promulgation of `rules.' Therefore, LEAF filed its civil action for declaratory and injunctive relief against ADEM. LEAF sought to enforce the rulemaking provisions of §§ 41-22-4,-5, and -23, and §§ 22-22A-8(a) and (b), Ala.Code 1975."

832 So.2d at 63-64.

In April 2002, ADEM adopted an "emergency" rule allowing the implementation of its antidegradation policy, which allowed it to again issue permits for the discharge of pollutants. Pursuant to the AAPA, that emergency rule was effective for only 120 days, so that the effective period of the emergency rule ended on August 6, 2002. See § 41-22-5(b), Ala.Code 1975 (providing for the emergency rule and specifying that it be effective for 120 days).

Apparently during the period in which it operated under the emergency rule, ADEM proposed the formal adoption of another set of Implementation Procedures that were substantially the same as the invalid Implementation Procedures. ADEM provided interested parties and the public the notice required under the AAPA, and it conducted a hearing to receive comments on the proposed adoption of the new proposed set of Implementation Procedures. ADEM adopted, pursuant to the provisions of the AAPA, that set of Implementation Procedures; those procedures were effective July 31, 2002. See Ala. Admin. Code (ADEM), Rule 335-6-10-.12. (Those procedures are hereinafter referred to as "the newly adopted Implementation Procedures.")

On appeal, LEAF first argues that the trial court erred in entering a judgment denying its claim for an attorney fee because, it contends, the claim for an attorney fee is not barred by Art. 1, § 14, and the doctrine of sovereign immunity. LEAF did not present any argument to the trial court in opposition to ADEM's assertion that LEAF's claim for an attorney fee was barred under those theories.¹ This court may not consider an issue raised for the first time on appeal.² Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). It is not clear whether the trial court relied on this theory as the basis of its judgment. Given LEAF's failure to properly argue this issue before the trial court, we decline to address it on appeal.

LEAF next argues that the trial court erred in failing to award the attorney fee it requested. LEAF argues that it is entitled to an attorney fee under the "common-benefit" doctrine.

"Under the American rule, the parties to a lawsuit bear the responsibility of paying their own attorney fees. However, the law recognizes certain exceptions to this rule, and attorney fees are recoverable when authorized by statute, when provided by contract, or when justified by special equity. Blankenship v. City of Hoover, 590 So.2d 245 (Ala.1991); Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238 (Ala. 1985). In the latter instance, attorney fees may be awarded where the plaintiff's efforts are successful in creating a fund out of which the fees may be paid, or when the efforts of the plaintiff's attorneys render a public service or result in a benefit to the general public in addition to serving the interests of the plaintiff. City of Ozark v. Trawick, 604 So.2d 360 (Ala.1992)

; Brown v. State, 565 So.2d 585 (Ala.1990); Bell v. Birmingham News Co., 576 So.2d 669 (Ala. Civ.App.1991). These have been termed the `common fund' and `common benefit'...