Local No. 290, Plumbers and Pipefitters v. Oregon Dept. of Environmental Quality

• Decision Date: 18 July 1996
• Citation: 323 Or. 559,919 P.2d 1168
• Parties: In the Matter of the Air Contaminant Discharge Permit Application of Willamette Industries, Inc. LOCAL NO. 290, PLUMBERS AND PIPEFITTERS, and on behalf of Certain Individual Members Residing in Albany, Oregon, et al., and Royce Clouse, Respondents on Review, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and The Environmental Quality Commission of Oregon, Petitioners on Review, and WILLAMETTE INDUSTRIES, INC., Petitioner on Review. In the Matter of the AIR CONTAMINANT DISCHARGE PERMIT APPLICATION OF GLENBROOK NICKEL COMPANY and In the Matter of the NPDES PERMIT APPLICATION OF GLENBROOK NICKEL COMPANY. LOCAL NO. 290, PLUMBERS AND PIPEFITTERS and Certain Individual Members, Respondents on Review, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, Petitioners on Review, and The ENVIRONMENTAL QUALITY COMMISSION OF OREGON, Defendant, and GLENBROOK NICKEL COMPANY, Petitioner on Review. CC 9302-00754, 9204-02467; CA A81725, A82407; SC S42666, S42667, S42668, S42677.
• Court: Oregon Supreme Court

Page 1168

919 P.2d 1168

323 Or. 559

In the Matter of the Air Contaminant Discharge Permit

Application of Willamette Industries, Inc.

LOCAL NO. 290, PLUMBERS AND PIPEFITTERS, and on behalf of Certain Individual Members Residing in Albany, Oregon, et al., and Royce Clouse, Respondents on Review, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and The

Environmental Quality Commission of Oregon,

Petitioners on Review,

and

WILLAMETTE INDUSTRIES, INC., Petitioner on Review.

In the Matter of the AIR CONTAMINANT DISCHARGE PERMIT

APPLICATION OF GLENBROOK NICKEL COMPANY and

In the Matter of the NPDES PERMIT APPLICATION OF GLENBROOK

NICKEL COMPANY.

LOCAL NO. 290, PLUMBERS AND PIPEFITTERS and Certain Individual Members, Respondents on Review, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, Petitioners on Review, and The ENVIRONMENTAL QUALITY COMMISSION OF OREGON, Defendant,

and

GLENBROOK NICKEL COMPANY, Petitioner on Review.

CC 9302-00754, 9204-02467; CA A81725, A82407; SC S42666,

S42667, S42668, S42677.

Supreme Court of Oregon.

Argued and Submitted May 9, 1996.

Decided July 18, 1996.

John T. Bagg, Assistant Attorney General, Salem, argued the cause for petitioners on review/respondents on review Oregon Department of Environmental Quality and the Environmental Quality Commission of Oregon. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

William H. Walters, of Miller, Nash, Wiener, Hager & Carlsen, Portland, argued the cause for petitioner on review Willamette Industries, Inc.

Lori Irish Bauman, Portland, argued the cause for petitioner on review Glenbrook Nickel Company. With her on the brief was Frank Langfitt, III, Portland.

Linda K. Williams, Portland, argued the cause and filed the brief for respondents on review Local 290, Plumbers and Pipefitters, et al.

Karl G. Anuta, of Larry Sokol & Associates, P.C., Portland, filed the briefs in S42667 and S42668 for amici curiae Northwest Environmental Defense Center, Pacific Coast Federation of Fishermen Association, Northwest Environmental Advocates, Bicycle Transportation Alliance, WaterWatch of Oregon, The Sierra Club, Oregon Natural Resources Council, Oregon Trout, Inc., Oregon Natural Desert Association, and American Civil Liberties Union Foundation of Oregon, Inc.

Thomas M. Christ, Portland, filed a brief in S42667 for amicus curiae ACLU Foundation of Oregon, Inc.

Laura A. Schroeder, Portland, filed a brief in S42667 for amicus curiae Oregon Water Resources Congress.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^*

GILLETTE, Justice.

These administrative law cases, consolidated in this court for purposes of argument and decision, involve challenges by Local 290, Plumbers and Pipefitters Union (the Union), to air and water discharge permits issued by the Department of Environmental Quality (DEQ) to Glenbrook Nickel Company and to an air discharge permit issued by DEQ to Willamette Industries, Inc. In each case, the Union asserted that the issuance of the permits violated various state and federal laws and alleged that it had representational standing to bring the challenges on behalf of its members. In the case of the Willamette Industries permit, a named Union member also was listed as a petitioner. ¹

The Union brought these challenges to the DEQ orders pursuant to ORS 183.484, a part of the Oregon Administrative Procedures Act (APA), which provides for judicial review of orders in "other than contested cases." Judicial review of such orders is conducted in the Marion County Circuit Court or in the circuit court for the county in which the petitioner has a principal business office. ORS 183.484(1). In these cases, the Union brought both proceedings in Multnomah County, where it has a principal office.

In each of the circuit court proceedings, which were heard before different judges, DEQ ² moved for summary judgment on the ground that the Union had no standing to challenge the decisions to issue the permits. The Union responded that it had standing, both because it was a "person" "adversely affected or aggrieved," as that concept is embodied in ORS 183.484(3), and because it was entitled to act in a representational capacity on behalf of certain of its members who themselves would have standing. After a hearing, each trial court granted summary judgment to DEQ and dismissed the case before it.

The Union appealed both trial court decisions to the Court of Appeals. See ORS 183.500 (providing for appeals from the circuit court to the Court of Appeals in such circumstances). That court reversed the judgments entered in the trial courts on the ground that, although the Union could not show that it was in its own right either adversely affected or aggrieved, there was an issue of material fact that had to be resolved in order to determine whether the Union had standing in a representational capacity. Local No. 290 v. Dept. of Environ. Quality, 136 Or.App. 213, 901 P.2d 921 (1995) (the Glenbrook permit cases); Local No. 290 v. Dept. of Environ. Quality, 136 Or.App. 544, 901 P.2d 919 (1995) (per curiam) (the Willamette Industries permit case).

We allowed the various petitions for review of DEQ (joined by the EQC), Glenbrook, and Willamette Industries in order to address the important issue of representational standing that is presented by the cases. For the reasons that follow, we now reverse the decisions of the Court of Appeals and reinstate the judgments of the circuit courts.

A petitioner for judicial review must establish that the petitioner has standing to invoke the judicial process. ORS 183.484(3) provides in part:

"The petition shall state the nature of the petitioner's interest, the facts showing how the petitioner is adversely affected or aggrieved by the agency order and the ground or grounds upon which the petitioner contends the order should be reversed or remanded."

(Emphasis added.) DEQ and the permit holders assert that the Union cannot establish that it has standing under that statutory standard, because the Union itself is neither "adversely affected" nor "aggrieved," and because the statute does not permit a union or other organization that cannot meet one of those two criteria to seek judicial review in its own name on behalf of other persons who may themselves have standing.

The Court of Appeals disagreed. Relying on Rendler v. Lincoln Co., 302 Or. 177, 184-85, 728 P.2d 21 (1986), the court held:

"We do not believe that the pertinent statutes preclude representational standing in APA proceedings, or that the representative must be directly adversely affected or aggrieved to have standing in that capacity. Under the Rendler formulation, representational standing depends in part on whether the members or other represented persons would have been able to 'pursue' the matter at issue independently of the representative. That would be a superfluous necessity if the representative was directly injured and, therefore, had standing independently of the members. If the represented persons are adversely affected or aggrieved, and if 'the organization is representing [their] position * * * on the disputed issues,' id. at 184 , there is no logical reason why the organization itself must also meet the threshold of direct injury defined in the statute in order to have standing as a representative."

Local No. 290, 136 Or.App. at 218, 901 P.2d 921.

The question presented is one of statutory interpretation. In interpreting a statute, this court seeks to determine and apply the intent of the legislature in enacting the statutory provision. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). ³ Our first level of analysis involves examination of the text and context of the statutory wording. If the legislative intent is clear from that examination, our inquiry is at an end. Id. at 611, 859 P.2d 1143.

From the statutory text, it is clear that, in order to have standing, a "person" must either be "adversely affected" or "aggrieved." From context, ORS 183.310(7), we know that the concept of "person" in the APA includes associations and public and private organizations. The Union thus is a "person" for the purposes of ORS 183.484. We normally would be required next to determine the substantive content of the concepts of "adversely affected" and "aggrieved," but we are spared that task in this case by the fact that the Court of Appeals held that the Union is not adversely affected or aggrieved, which holding the Union did not seek to have reviewed, as well as by the candid admission of counsel for the Union at oral argument to that same effect. We thus are left with the question whether, in spite of the fact that it is neither adversely affected nor aggrieved, the Union nonetheless can have standing in this case.

When it is ruling on a standing issue, a reviewing court must focus on the wording of the particular statute at issue, because standing is not a matter of common law but is, instead, conferred by the legislature. See, e.g., Brian v. Oregon Government Ethics Commission, 319 Or. 151, 156, 874 P.2d 1294 (1994) (so holding); People for Ethical Treatment v. Inst. Animal Care, 312 Or. 95, 99, 817 P.2d 1299 (1991) (same, citing Benton County v. Friends of Benton County, 294 Or. 79, 82, 653 P.2d 1249 (1982)); Rendler, 302 Or. at 180, 728 P.2d 21. In particular, it is important that courts not interpret the contours of standing in a particular case by looking at other statutes that confer standing in different circumstances. Benton County, 294 Or. at 82, 653 P.2d 1249. For example, this court in People for Ethical Treatment, in defining the concept of "aggrievement" in the context of the APA, declined to draw parallels from...