The opinion
2013 IL 115473
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 115473)
THE BOARD OF EDUCATION OF ROXANA COMMUNITY
SCHOOL DISTRICT No. 1, Appellant, v. THE POLLUTION
CONTROL BOARD et al., Appellees.
Opinion filed November 21, 2013.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride,
and Theis concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
¶1 The issue in this case is whether the appellate court ruled correctly
when it concluded that it lacked jurisdiction to entertain an appeal by
the Board of Education of Roxana Community School District No. 1
(the Board of Education) from decisions of the Pollution Control
Board which denied the Board of Education’s petitions to intervene
in 28 separate proceedings for certification of certain facilities as
“pollution control facilities” and granted the subject certifications.
The basis for the appellate court’s ruling was that judicial review of
a Pollution Control Board decision to issue, refuse to issue, deny,
revoke, modify or restrict a pollution control certificate is governed
by section 11-60 of the Property Tax Code (35 ILCS 200/11-60 (West
2010)). Under that provision, appeals must be filed in circuit court,
not the appellate court, and can only be brought by applicants for or
holders of the certificates, classifications into which the Board of
Education did not fall. 2012 IL App (4th) 120174-U.
¶2 One justice dissented. He believed the Board of Education should
have been permitted to prosecute this appeal pursuant to section 41
of the Environmental Protection Act (415 ILCS 5/41 (West 2010)),
which permits appeals directly to the appellate court by, inter alios,
“any party adversely affected by a final order or determination of the
Board.”
¶3 Following entry of the appellate court’s judgment, the Board of
Education petitioned this court for leave to appeal. Ill. S. Ct. R. 315
(eff. Feb. 26, 2010). We granted the petition. For the reasons that
follow, we now affirm.
¶4 BACKGROUND
¶5 The facts necessary for resolution of this appeal are
straightforward and undisputed. A company known as WRB
Refining, LP (WRB), owns the Wood River Petroleum Refinery in
Madison County. Following major renovations to the refinery, WRB
submitted separate applications to the Illinois Environmental
Protection Agency (IEPA) pursuant to section 11-25 of the Property
Tax Code (35 ILCS 200/11-25 (West 2010)) to have 28 of the
refinery’s systems, methods, devices, and facilities certified as
“pollution control facilities” within the meaning of section 11-10 of
the Code (35 ILCS 200/11-10 (West 2010)). WRB sought those
certifications because, if approved, they would result in a preferential
tax assessment of the subject systems, methods, devices and facilities.
See 35 ILCS 200/11-5, 11-15, 11-20 (West 2010).
¶6 WRB filed its 28 applications in October of 2010. The following
August, the IEPA recommended to the Pollution Control Board that
it approve two of WRB’s certification requests. The Board accepted
the IEPA’s recommendations and certified the two entities at issue as
pollution control facilities.
¶7 Shortly thereafter, the Board of Education filed separate petitions
for leave to intervene in the two proceedings where certification had
been granted. The Board of Education argued that the particular
applications submitted by WRB failed to satisfy statutory
requirements under the Property Tax Code and that it had a legally
cognizable interest in challenging the sufficiency of the applications
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because issuance of the certifications would ultimately deprive it of
tax revenue.
¶8 The Pollution Control Board considered and denied the Board of
Education’s petitions to intervene, reasoning that because the
certifications in the two matters had already been issued, the Board
of Education’s petitions were now moot. The Board of Education
asked the Pollution Control Board to reconsider that decision. While
the requests to reconsider were pending, the IEPA recommended that
the Pollution Control Board also approve WRB’s applications to
certify the remaining 26 systems, methods, devices, and facilities as
“pollution control facilities.”
¶9 Before the Pollution Control Board took action in these remaining
26 cases, the Board of Education filed petitions for leave to intervene
in each of them. Those petitions, filed in December of 2011, were
premised on the same arguments asserted by the Board of Education
in the initial two cases.
¶ 10 Both the IEPA and WRB objected, arguing that under the
statutory and regulatory scheme governing certification of pollution
control facilities, the Board of Education had no right to intervene.
The Board of Education responded by filing a joint reply addressed
to all 28 proceedings. In that reply, the Board of Education challenged
the Pollution Control Board’s view that its petitions to intervene in
the initial two cases were moot. It also argued that it possessed a
legally cognizable basis for intervening and that the Pollution Control
Board had authority under the law to permit it to intervene. In
addition, it took issue with the substance of the Pollution Control
Board’s decision to issue pollution control facility certifications in the
initial two proceedings.
¶ 11 In a detailed and unanimous order entered January 19, 2012, the
Pollution Control Board denied reconsideration. Within the time
permitted by law, the Board of Education sought administrative
review of the Pollution Control Board’s decision in the appellate
court pursuant to section 41 of the Illinois Environmental Protection
Act (415 ILCS 5/41 (West 2010)). In the interim, the Pollution
Control Board entered a separate order, also detailed and also
unanimous, denying the Board of Education’s petitions to intervene
in the remaining 26 proceedings and granting WRB’s applications for
pollution control facility certification in each of those cases. The
Board of Education sought administrative review of that decision as
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well, and, on the Board of Education’s motion, the appellate court
consolidated both appeals.
¶ 12 As noted at the outset of this opinion, the appellate court, with
one justice dissenting, dismissed the Board of Education’s
consolidated appeal on the grounds that it lacked jurisdiction to
consider it. The appellate court opined that section 41 of the Illinois
Environmental Protection Act, the provision invoked by the Board of
Education in seeking direct administrative review by that court, was
inapplicable here. Section 41 is the general provision for judicial
review of final decisions of the Pollution Control Board, and it
provides that such appeals may be brought by, inter alios, “any party
adversely affected by a final order or determination of the Board.”
The appellate court noted, however, that the legislature has
promulgated a separate and more specific provision for appeals in
proceedings involving the Pollution Control Board’s “issuance,
refusal to issue, denial, revocation, modification or restriction of a
pollution control certificate,” which is the type of proceeding from
which this appeal emanated. That provision is section 11-60 of the
Property Tax Code (35 ILCS 200/11-60 (West 2010)). By its terms,
section 11-60 authorizes appeals from such decisions only by
applicants for or holders of pollution control facility certificates who
are aggrieved by the Board’s decision. The Board of Education is
neither an applicant for or holder of a pollution control facility
certificate. Moreover, such appeals are subject to the regular
provisions of the Administrative Review Law (735 ILCS 5/3-101 et
seq. (West 2010)). Unlike section 41 of the Illinois Environmental
Protection Act, there is no mechanism for bringing such appeals
directly to the appellate court. They must be initiated, instead, in the
circuit court. 735 ILCS 5/3-104 (West 2010).
¶ 13 In the appellate court’s view, section 11-60 of the Property Tax
Code rather than section 41 of the Illinois Environmental Protection
Act must take precedence in cases such as this for two basic reasons.
First, to hold otherwise would mean that the court “would be
essentially disregarding the specific and narrow guidance provided by
section 11-60,” a course that would not only run afoul of the “long
held principle that the appellate court must construe a statute as a
whole so that no part is rendered meaningless or superfluous,” but
could also “produce absurd results in that it could conceivably allow,
at a minimum, applicants seeking a pollution-control-facilities
certification to engage in forum shopping any potential appeal in
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either the circuit court or appellate court.” 2012 IL App (4th)
120174-U, ¶ 25. Second, applying section 11-60 of the Property Tax
Code rather than section 41 of the Illinois Environmental Protection
Act to proceedings such as these, which were brought under the
Property Tax Code, is compelled by the “well-settled axiom of
statutory interpretation that the general must yield to the specific.” Id.
¶ 26.
¶ 14 One justice dissented. Contrary to his colleagues in the majority,
he believed that the Board of Education should be permitted to appeal
pursuant to section 41 of the Illinois Environmental Protection Act.
He would have allowed the appeal, reversed the Pollution Control
Board’s decisions, and reversed and remanded to the Pollution
Control Board with directions to grant the Board of Education’s
petitions for leave to intervene and to conduct further hearings on the
merits. 2012 IL App (4th) 120174-U, ¶ 45 (Appleton, J., dissenting).
¶ 15 ANALYSIS
¶ 16 In its appeal to our court, the Board of Education argues that the
appellate court’s jurisdictional analysis was incorrect as a matter of
law and that section 41 of the Illinois Environmental Protection Act
provides a proper basis for challenging the Pollution Control Board’s
decisions through direct appeal to the appellate court, as the
dissenting justice had reasoned. It then goes on to assert that the
Pollution Control Board erred when it denied the Board of Education
permission to intervene in the pollution control facility certification
proceedings, that the Pollution Control Board erred when it
concluded that the Board of Education’s petitions to intervene in the
first two proceedings were moot, and that the Pollution Control Board
erred in certifying the subject facilities as pollution control facilities.
¶ 17 We begin with the question of the appellate court’s jurisdiction.
Whether the appellate court has jurisdiction to consider an appeal
presents a question of law which we review de novo. Gardner v.
Mullins, 234 Ill. 2d 503, 508 (2009); In re A.H., 207 Ill. 2d 590, 593
(2003). In this case, we agree with the appellate court’s conclusion
that it lacked jurisdiction to consider the Board of Education’s
appeals. We do so, however, based on different reasoning.
¶ 18 It is undisputed that under the statutory scheme implemented by
the General Assembly, the Board of Education’s only direct path to
the appellate court for administrative review of the Pollution Control
Board’s decisions in these 28 cases is through section 41 of the
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Illinois Environmental Protection Act (415 ILCS 5/41 (West 2010)).
Unless the Board of Education can avail itself of that statute, its
appeal is doomed, for the appellate court has jurisdiction to review
administrative decisions only as provided by law (Ill. Const. 1970,
art. VI, § 6; Town & Country Utilities, Inc. v. Illinois Pollution
Control Board, 225 Ill. 2d 103, 121 (2007); People ex rel. Madigan
v. Illinois Commerce Comm’n, 394 Ill. App. 3d 382, 386 (2009)), and
the only other mechanism for obtaining judicial review of decisions
by the Pollution Control Board in administrative proceedings
involving certification of pollution control facilities is section 11-60
of the Property Tax Code (35 ILCS 200/11-60 (West 2010)). As the
appellate court here noted and as we have just pointed out, the
express terms of that statute authorize appeals in such proceedings
only by applicants for or holders of pollution control facility
certificates who are aggrieved by the Board’s decision, categories into
which the Board of Education does not fall, and, in any case, such
appeals must be brought in circuit court. There is no statutory
authorization for litigants to skip ahead and go directly to the
appellate court.
¶ 19 While the appellate court majority in this case was of the view
that section 11-60 of the Property Tax Code leaves no room for resort
to section 41 of the Illinois Environmental Protection Act in cases
involving certification of pollution control facilities, we need not go
that far in resolving the particular case before us today. That is so
because even if section 41 were not completely supplanted by section
11-60 with regard to appeals in such cases, it still would be of no aid
to the Roxana Board of Education here.
¶ 20 Section 41 provides for appeals by “[a]ny party to a Board
hearing, any person who filed a complaint on which a hearing was
denied, any person who has been denied a variance or permit under
this Act, any party adversely affected by a final order or determination
of the Board, and any person who participated in the public comment
process under subsection (8) of Section 39.5 of this Act.” 415 ILCS
5/41 (West 2010)). In its arguments before our court, the Board of
Education contends that it falls within the fourth of these categories
and qualifies as “any party adversely affected by a final order or
determination of the Board.” It does not. Our court has specifically
held that to be a “party” within the meaning of the fourth category of
section 41, one must have been an actual party of record in the
underlying proceedings before the Board. Lake County Contractors
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Ass’n v. Pollution Control Board, 54 Ill. 2d 16, 21 (1973); People v.
Pollution Control Board, 113 Ill. App. 3d 282, 291 (1983), rev’d on
other grounds sub nom. Pioneer Processing, Inc. v. Environmental
Protection Agency, 102 Ill. 2d 119 (1984). This is consistent with the
general rule that administrative review is limited to parties of record
before the administrative agencies and then only when their rights,
duties or privileges are adversely affected by the decision. See, e.g.,
Williams v. Department of Labor, 76 Ill. 2d 72, 78 (1979); Robinson
v. Regional Board of School Trustees, 130 Ill. App. 3d 509, 512-13
(1985). Because the Board of Education was denied leave to intervene
in these proceedings, it is not and cannot be deemed to have ever been
a party to the litigation. In re Veatch, 93 Ill. App. 3d 413, 415 (1981).
Accordingly, the fourth clause of section 41 could not afford it any
basis for seeking administrative review in the appellate court.1
¶ 21 In urging the exercise of jurisdiction, the dissenting appellate
court justice argued that this matter might actually fall within the
third clause of section 41, which permits appeals by “any person who
filed a complaint on which a hearing was denied,” but that contention
is without merit. The Board of Education did not file a “complaint on
which a hearing was denied.” It did not file a complaint at all. In civil
matters, a “complaint” is generally understood to mean the initial
pleading that starts an action, states the basis for the plaintiff’s claim,
and sets forth the demand for relief. Black’s Law Dictionary 323 (9th
ed. 2009). The proceedings at issue here were initiated by
applications for pollution control facility certificates. Those were
filed by WRB, not the Board of Education. The Board of Education
simply requested leave to intervene. There is no meaningful sense in
which a petition to intervene can be considered a complaint. The
contrary view taken by the appellate court in Citizens Against the
1
In Reed-Custer Community Unit School District No. 255-U v.
Pollution Control Board, 232 Ill. App. 3d 571 (1992), a panel of the
appellate court relied on the fourth clause of section 41 to assert
jurisdiction over a school district’s appeal of the Pollution Control Board’s
denial of its attempt to revoke a company’s pollution control facility
certification. Significantly, the appellate court did not consider whether the
law permitted third parties to seek revocation of a certificate, and no
challenge was raised to its jurisdiction under section 41. It is therefore scant
authority for the Board of Education’s position in this case. In any event,
to the extent that it is inconsistent with our holding today, it is overruled.
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Randolph Landfill (CARL) v. Pollution Control Board, 178 Ill. App.
3d 686, 692 (1988), is untenable, and we reject it.
¶ 22 The dissenting appellate court justice’s interpretation of the law
must be rejected for another reason as well. Although he contends
that appeals in certification proceedings are properly brought directly
to the appellate court when they are prosecuted by third parties, he
does not dispute that when the appeal is brought by an actual
applicant for or holder of a certificate, it must be pursued in circuit
court. 2012 IL App (4th) 120174-U, ¶ 40 (Appleton, J., dissenting).
The dissenting justice’s approach would thus create a situation in
which the particular court to which an appeal must be brought would
differ depending on the particular litigant who brought it.
¶ 23 We are unaware of any other situation in Illinois law where this
occurs, and we can conceive of no sound reason why the legislature
would possibly have wanted to create such a dual-track system with
respect to appeals in pollution control facility certification
proceedings. We therefore agree with the appellate court majority that
such a construction of the law would yield absurd results and must be
rejected.
¶ 24 Finally, and in any case, a court’s refusal to entertain an appeal
from the denial of petitions to intervene in administrative proceedings
cannot be error if the entity seeking to appeal had no right to
intervene to begin with. In this case, the Board of Education failed to
show that it had any such right. Under the law, the question of
whether a system, method, construction, device, building, etc.,
qualifies as a pollution control facility within the meaning of section
11-10 of the Property Tax Code (35 ILCS 200/11-10 (West 2010)) is
a technical one between the entity seeking certification and state
regulatory officials. See 35 ILCS 200/11-20, 11-25, 11-30 (West
2010). The General Assembly made no provision for involvement of
any other parties in the certification process. Nor has the Pollution
Control Board. There is nothing in the applicable administrative
regulations authorizing participation by third parties in the pollution
control facility certification process. See 35 Ill. Adm. Code 125.200
to 125.216 (2005).
¶ 25 We recognize, of course, that legitimate concerns may arise when
the only parties permitted to participate in the regulatory process are
regulators and the companies they regulate. That, however, is a matter
for the General Assembly. The responsibility for the wisdom of
legislation rests with the legislature, and courts may not rewrite
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statutes to make them consistent with the court’s idea of orderliness
and public policy. People v. Carpenter, 228 Ill. 2d 250, 270-71
(2008).
¶ 26 We must also point out that under this state’s property tax system,
taxing bodies such as the Board of Education have been given some
voice in how certified pollution control facilities within their borders
are ultimately taxed. It is simply not at the certification stage. It
comes later, when the Department of Revenue actually assesses the
value of those facilities. At that point, any person aggrieved by the
assessment may apply for review and correction of the assessment
and ask for a hearing on the matter. 35 ILCS 200/8-35(a) (West
2010); 86 Ill. Adm. Code 110.110 (1996). That stage had not yet been
reached in this case. Even if it had, review in such proceedings lies in
the circuit court. The law does not authorize direct review by the
appellate court, as the Board of Education sought here. 35 ILCS
200/8-40 (West 2010).
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we hold that the appellate court did not
err when it dismissed the Board of Education’s appeal for lack of
jurisdiction. In light of this conclusion, there is no need to address the
Board of Education’s remaining arguments. The judgment of the
appellate court is affirmed.
¶ 29 Affirmed.
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