Shell Oil Co. v. Pollution Control Board

Mr. PRESIDING JUSTICE KARNS, specially concurring:

I concur in the opinion of the court as I believe it adopts the appropriate standard for judicial review of rule-making proceedings before the Pollution Control Board.

Sections 29 and 41 of the Environmental Protection Act (Ill. Rev. Stat. 1975, ch. 111½, pars. 1029, 1041) afford persons “adversely affected or threatened” an opportunity to seek immediate review of the Board’s rules. These provisions thrust the judiciary into a review of administrative rule making immediately after a rule is adopted and are, to my knowledge, unique in their apparent breadth of judicial review before enforcement. These sections implement the obvious policy of the Environmental Protection Act to secure immediate judicial review of the propriety of the promulgated rules thereby avoiding uncertainty as to their enforceability. Although the statute contains no restriction upon the extent to which a court may review and weigh the evidence upon which the Board’s actions are based, our experience with review of rule making under these provisions has demonstrated to us the theoretical and practical considerations which must limit the literal meaning of the statute.

Rule making is essentially a legislative function. An unbridled review of this procedure would place a court in a role of a supervisory legislative body, contrary to the separation of powers clause in our constitution. (Ill. Const. 1970, art. II, §1.) Illinois courts have “judicial power” while the legislative power of this State is reserved to the General Assembly and its instrumentalities. (Ill. Const. 1970, art. VI, §1.) I do not believe that the authority conferred upon the courts to review decisions of administrative agencies (Ill. Const. 1970, art. VI, §6) in any way enlarges the traditional scope of our power or authorizes courts to exercise legislative functions. The promulgation of environmental protection rules is a complex task, requiring the presumed expertise of the Pollution Control Board in the analysis of legislative facts. Courts are not equipped to determine the wisdom and inherent fairness of these rules in an abstract context and thus should not attempt to weigh and analyze the mass of evidence that forms the basis of rule making. Courts should therefore limit review of rule making to matters which are suitable for judicial review.

Unrestrained judicial review of administrative rule making also suggests possible constitutional problems. While our constitution does not explicitly limit judicial power to cases or controversies, I believe this conceptual requirement is inherent in the judicial power of Illinois courts. In the Federal system, the United States Constitution grants judicial power only to decide “cases and controversies.” The jurisdiction of Federal courts is limited to actual controversies between adverse litigants and does not include the power to give advisory opinions. (Muskrat v. United States, 219 U.S. 346 , 55 L. Ed. 246 , 31 S. Ct. 250 (1911).) The judicial power of Illinois courts does not authorize the granting of advisory opinions. (North Chicago Hebrew Congregation v. Board of Appeals, 358 Ill. 549, 567 , 193 N.E. 519 (1934) (concurring opinion); Letter from Justices of Illinois Supreme Court to Governor Deneen, August 23,1909, 243 Ill. 14 (1909).) When faced with moot questions, Illinois courts have declined to exercise their decisional power because the absence of an actual controversy was fatal to their jurisdiction. La Salle National Bank v. City of Chicago, 3 Ill. 2d 375 , 121 N.E.2d 486 (1954); Wick v. Chicago Telephone Co., 277 Ill. 338, 341 (1917); Tuttle v. Gunderson, 341 Ill. 36 , 173 N.E. 175 (1930); People v. Dawson, 5 Ill. App. 3d 975 , 284 N.E.2d 391 (1972); see also Chicago City Bank and Trust Co. v. Board of Education, 386 Ill. 508 , 54 N.E.2d 498 (1944).) A matter is appropriate for judicial determination only when it is neither hypothetical nor abstract but definite and concrete touching the legal relations of parties having adverse legal interests. Exchange National Bank v. County of Cook, 6 Ill. 2d 419 , 129 N.E.2d 1 (1955).

Unrestrained judicial review of administrative rule making clearly violates the sound judicial policy of limiting judicial involvement to cases “ripe” for adjudication. The basic rationale of the ripeness doctrine in the Federal system as applied to preenforcement review of administrative rules is avoidance of judicial entanglement in abstract disputes over administrative policies and protection of agencies from judicial interference until the effects of their policies are felt in a concrete manner by challenging parties. (Abbott Laboratories v. Gardner, 387 U.S. 136 , 87 S. Ct. 1507 , 18 L. Ed. 2d 681 (1967).) As stated in Abbott Laboratories and its companion decisions, Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158 , 87 S. Ct. 1520 , 18 L. Ed. 2d 697 (1967), and Gardner v. Toilet Goods Association, 387 U.S. 167 , 87 S. Ct. 1526 , 18 L. Ed. 2d 704 , (1967), two inquiries must be made: the fitness of the issues for judicial decision and the hardship to the parties that might result from denial of review. This requirement of ripeness is inherent in the concept of the judicial power of Illinois courts and was incorporated by the Illinois Supreme Court in Exchange National Bank in its definition of “actual controversy.” Illinois courts have explicitly tested the ripeness of cases involving a challenge to administrative actions (e.g., Alfred Engineering, Inc. v. Illinois Fair Employment Practices Com., 19 Ill. App. 3d 592 , 312 N.E.2d 61 (1974)), and the need for ripeness as set out in Abbott Laboratories and the Toilet Goods Association cases has been stated as being “completely in accord” with Illinois case law. (Gromer Supermarkets v. Pollution Control Board, 6 Ill. App. 3d 1036,1043 , 287 N.E.2d 1, 6 (1972).) It is suggested that the basis of our Supreme Court’s decision in Commonwealth Edison Co. v. Pollution Control Board, 62 Ill. 2d 494 (1976), turned largely on considerations of ripeness.

The standard of review announced by this court avoids encroachment upon the prerogatives of the legislative branch of government and limits review to issues appropriate for judicial determination. The instant rules apparendy will have a direct effect upon petitioner’s day-to-day business, placing it in a dilemma whether to comply with every requirement of the rules, which would cause an immediate and significant change in the conduct of petitioner’s business and cause petitioner to incur the costs of compliance, or to continue the present procedures and risk prosecution and penalties for noncompliance. (Abbott Laboratories; Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407 , 62 S. Ct. 1194 , 86 L. Ed. 1563 (1942).) Thus, because it appears that the instant rules are final administrative action, this cause is ripe.

The standard of review adopted here is not consistent with the standard applied in our recent decision in Peabody Coal Co. v. Pollution Control Board, 36 Ill. App. 3d 5 , 344 N.E.2d 279 . In Peabody Coal, we professed to measure the validity of rules relating to water pollution from point source discharges by the standard announced by the appellate court in Commonwealth Edison Co. v. Pollution Control Board, 25 Ill. App. 3d 271 , 323 N.E.2d 84 (1974); whether such rules were economically reasonable and technologically feasible for a substantial number of emission sources within the State. Our experience in dealing with the concepts of technological feasibility and economic reasonableness as a matter of reviewing the evidence produced before the Pollution Control Board has convinced us that this approach is unsound for the reasons discussed above. In Laclede Steel Co. v. Pollution Control Board, 37 Ill. App. 3d 263 , decided this day, we directed the parties to brief and argue the considerations which I have discussed in this concurring opinion. My opinion is that the scope of review announced in the appellate court decision in Commonwealth Edison, which we followed in Peabody Coal, is inappropriate both as a matter of judicial wisdom and constitutional law. I therefore concur in the opinion of the court.