Illinois Supreme Court Restricts Appeals of Pollution Control Device Certifications

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In yet another unanimous decision handed down this morning, the Illinois Supreme Court has streamlined procedures to certify pollution control facilities by barring certain third party appeals. Our detailed summary of the facts and lower court opinion in The Board of Education of Roxana Community School District No. 1 v. The Pollution Control Board is here. Our report on the oral argument is here.

Board of Education arises from twenty-eight separate applications to the Illinois Environmental Protection Agency to have certain systems, methods, devices and facilities created in conjunction with major renovations to a Madison County oil refinery certified as “pollution control facilities” entitled to special treatment under the Property Tax Code. 35 ILCS 200/11-5, 11-15, 11-20. In August 2011, the  IEPA recommended to the Pollution Control Board that it approve two of the requests, and the Board did so. The plaintiff Board of Education then filed petitions to intervene in the two proceedings where applications had been granted. The Pollution Control Board denied intervention. The Board of Education then filed petitions to intervene in the remaining twenty-six cases. The Pollution Control Board refused to reconsider the first two rulings, denied the Board of Education’s petitions to intervene in the remaining cases, and granted the remaining petitions for certification. The Board of Education appealed the Board’s decision directly to the Appellate Court pursuant to Section 41 of the Illinois Environmental Protection Act. 415 ILCS 5/41.

The Appellate Court dismissed the appeal, holding that appeals from the Pollution Control Board’s decision were governed by Section 11-60 of the Property Tax Code (35 ILCS 200/11-60), rather than Section 41 of the IEPA. Section 11-60 specifically provides for appeals to the circuit court from decisions relating to pollution control certificates, and restricts standing to appeal to applicants for, or aggrieved holders of, pollution control facility certificates. Section 11-60 governed for two reasons, the Appellate Court found: (1) upholding the Board of Education’s theory would mean that simultaneous appeals could be taken to the Appellate Court and the circuit court by different parties; and (2) the specific trumps the general as a matter of statutory construction.

In an opinion by Justice Lloyd A. Karmeier, the Court affirmed, although for somewhat different reasons than those invoked by the Appellate Court. It was not necessary to resolve a conflict between the IEPA and the Property Tax Code, the Court held; the Board of Education had no standing to appeal even under the IEPA. Section 41 of the IEPA granted standing to appeal to any “party to a Board hearing, any person who filed a complaint on which a hearing was denied, and person who has been denied a variance or permit under [the] Act, any party adversely affected by a final order or determination of the Board, and any person who participated in the public comment process . . .” The Board of Education was “adversely affected” by the orders, but it wasn’t a party, the Court held – its petitions to intervene had all been denied. Nor was it a “person who filed a complaint on which a hearing was denied” – petitions to intervene didn’t amount to “complaints.” The Court also viewed the possibility of simultaneous dual track appeals, by applicants in the circuit court and by objectors in the Appellate Court, as a sufficiently absurd proposition to reject the Board of Education’s interpretation of the IEPA. Besides, the Court pointed out, the Board of Education had no right to intervene to begin with. Certification proceedings involved highly technical determinations, and there was no provision in the statute for anybody other than the entity seeking certification and the state regulators to be involved. The Court conceded that “legitimate concerns” might arise from restricting participation in that fashion, but commented that this was a matter for the General Assembly, not the Court.