Opinion
No. 83-1286
Decided December 19, 1984.
Environmental law — Administrative law — Procedural rules adopted by Director of Environmental Protection — Appeal from Environmental Board of Review does not lie where justiciable controversy is not presented.
APPEAL from the Court of Appeals for Franklin County.
In 1980, Wayne S. Nichols, the former Director of Environmental Protection ("Director of EPA"), appellee herein, issued a series of administrative rules governing the procedures for adjudication hearings. The administrative rules were adopted as Ohio Adm. Code 3745-47-01 through 3745-47-40.
White Consolidated Industries, appellant herein, appealed to the Environmental Board of Review ("EBR") and challenged the validity of certain portions of the above rules. Appellant argued before the EBR that various segments of the rules were unreasonable and unlawful and inconsistent with the enabling legislation. The EBR found three of the rules to be unreasonable and unlawful and ordered that those particular rules be vacated.
The three rules invalidated by the EBR are as follows: The first, Ohio Adm. Code 3745-47-03, provided generally that the director could submit draft actions without conducting formal adjudication hearings. Instead, the director could either receive public comment or hold a public meeting on the draft action. The EBR ruled that this rule violated the right to an adjudication hearing pursuant to R.C. 119.06 and was therefore unreasonable and unlawful.
The second, Ohio Adm. Code 3745-47-20, required that, prior to seeking discovery from the EPA, parties to an adjudication proceeding were first required to search the EPA's public files for the information sought to be discovered. The EBR concluded that this rule was unreasonable and unlawful because of the financial and temporal burdens the rule placed on parties opposing the EPA in an adjudication hearing.
The third and final rule struck down by the EBR was Ohio Adm. Code 3745-47-13(B), which required that parties opposing the EPA in an adjudication hearing disclose their legal and factual position to the EPA. No reciprocal obligation to disclose was placed on the EPA. According to the EBR, since the EPA was under no mutual obligation to disclose, the EPA would have an unfair tactical advantage over other parties which was unreasonable and unlawful.
Appellee appealed to the court of appeals which reversed the decision of the EBR. The court of appeals held that the rules invalidated by the EBR were not unreasonable or unlawful.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Squire, Sanders Dempsey, Mr. George M. von Mehren and Ms. Lynne A. Monaco, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. E. Dennis Muchnicki, for appellee.
Although the parties devote the major portion of their arguments to a consideration of whether the three rules invalidated by the EBR were unreasonable and unlawful, there is a question raised herein which first must be resolved. This preliminary question is whether there is a justiciable controversy in the absence of any facts to which to apply the standard of reasonableness and lawfulness. We must respond in the negative and for this reason reverse the judgment of the court of appeals.
This court stated in Fortner v. Thomas (1970), 22 Ohio St.2d 13 [51 O.O.2d 35], at paragraph two of the syllabus:
"Courts will not aid in making or revising rules of administrative officers, boards or commissions, being confined to deciding whether such rules are reasonable and lawful as applied to the facts of a particular justiciable case. ( Zangerle v. Evatt, 139 Ohio St. 563 [23 O.O. 52], approved and followed.)"
This principle was confirmed in In re Appeal of Buckeye Power (1975), 42 Ohio St.2d 508, 509 [71 O.O.2d 505], where this court held that there was no justiciable case since "* * * [t]he reasonableness and lawfulness of the rules have been placed before this court without reference to any specific application of any rule to particular facts."
That is precisely the situation presented in the case at bar. Here, appellant has challenged a series of administrative rules adopted by an administrative agency as being unreasonable and unlawful. However, we have no facts whatsoever before us with which to test the rules against the appropriate standard of review. Without such set of facts, this appeal does not present a justiciable controversy. In Fortner, supra, and Buckeye Power, supra, this court declined to take part in the rulemaking process of an administrative agency and will adhere to that course. This case is distinguishable from the situation we faced in Williams v. Akron (1978), 54 Ohio St.2d 136 [8 O.O.3d 125]. In Williams, at paragraph three of the syllabus, we held:
"An appeal to the Court of Appeals for Franklin County from the final orders of the Environmental Board of Review issued upon appeal of the rule-making actions of the Director of Environmental Protection, pursuant to R.C. 3745.06, is within the appellate jurisdiction of the Court of Appeals for Franklin County where a justiciable case and controversy exist between adverse parties." (Emphasis added.)
Thus, Williams did not in any way eliminate or lessen the requirement that an appeal to the court of appeals from the EBR present a justiciable controversy. Rather, Williams serves to emphasize that without a justiciable controversy, no appeal will lie from a decision of the EBR. Although we found a justiciable controversy in Williams, a similar result is not mandated herein. In Williams, the director adopted a rule governing water quality standards. The very nature of the director's action in Williams sets that case apart from the instant case. Here, the director adopted a series of strictly procedural rules controlling adjudication hearings. Unlike the water quality standards in Williams, the parties herein were under no immediate obligation to comply with these rules. For instance, we found in Williams that without judicial relief, the parties who were subject to the water quality standards would suffer hardship since they were instantly subject to sanctions for failing to comply. In contrast, there is no indication in the record before us that, as between the instant parties, there are any pending adjudication hearings at which the director's rules would have been in force. That being the case, this court, as well as the court of appeals, was being "asked to determine rights in a `vacuum' * * *." Williams, supra, at 145; Burger Brewing Co. v. Liquor Control Comm. (1973), 34 Ohio St.2d 93, 98 [63 O.O.2d 149].
Until the parties can come forward with a specific factual setting, without strictly resorting to hypotheticals and speculation, this cause does not present a justiciable controversy. This court is not inclined to decide cases on entirely hypothetical facts and render purely advisory opinions. We therefore hold that the appeal from the EBR to the court of appeals and from the court of appeals to this court presented no justiciable cause.
The remaining consideration is the effect of our holding. Appellee argues that the decision of the court of appeals should be affirmed. We disagree. In Fortner, supra, and Buckeye Power, supra, this court dismissed appeals taken from administrative agencies after finding no justiciable case. In the instant case, the court of appeals reversed the decision of the EBR. It is our determination that, absent a particular set of facts, the court of appeals should have dismissed the appeal from the EBR. There being no appeal for resolution from the EBR without a justiciable controversy, the appeal from the EBR must be dismissed.
This is true even though R.C. 3745.04 allows an appeal to the EBR from the adoption of a rule by the director and R.C. 3745.06 allows an appeal to the court of appeals from the EBR. The fact that there is statutory authorization for the appeal to the court of appeals from the EBR does not mandate that the judiciary resolve non-justiciable cases. For instance, in Buckeye Power, supra, even though there was statutory authorization pursuant to R.C. 4903.13 and 4906.12 to take an appeal from the Power Siting Commission to this court, we dismissed the appeal for want of a justiciable controversy.
Accordingly, the judgment of the court of appeals is reversed and the appeal is dismissed.
Judgment reversed and appeal dismissed.
CELEBREZZE, C.J., FORD, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
FORD, J., of the Eleventh Appellate District, sitting for W. BROWN, J.