Missouri Soybean Ass'n v. Missouri Clean Water Commission , 2003 Mo. LEXIS 63 ( 2003 )

STEPHEN N. LIMBAUGH, JR., Chief Justice,

dissenting.

I respectfully dissent. I would hold that the 1998-303(d) list is a rule under the MAPA and that promulgation of the 1998-303(d) list violated the MAPA’s rulemaking procedures and is therefore void.

I.

Section 536.010(4) of the MAPA defines a “rule” as “each statement of general applicability that implements ... or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency.” (Emphasis added.) In my view, the 1998-303(d) list promulgated by the Clean Water Commission meets this statutory definition. First, the list is an agency action of “general applicability.” As this Court has held, the notion of “general applicability” is satisfied where the agency statement of policy or interpretation of law “acts on unnamed and unspecified [persons and] facts.... ” NME Hospitals, Inc. v. Dept. of Social Services, 850 S.W.2d 71, 74 (Mo. banc 1993). Here, the agency action has the potential to affect millions of Missourians who live near or who use the listed waters in some capacity. In fact, the 303(d) list submitted by the Commission identified 165 bodies of water throughout the State that were deemed to be “impaired” by at least one pollutant, and the list included the Missouri and Mississippi Rivers, by far the largest and most commercially traveled waterways in the State. After a quick approval by the EPA, these listed waters are now subject to TMDL development, which will inevitably lead to increased restrictions on those individuals who live near or use the listed waters. Under these circumstances the “general applicability” requirement is satisfied.

Second, a review of the substantive and procedural aspects of the Missouri Clean Water Law demonstrates that respondents promulgated the 1998-303(d) list with the intent of “prescribing” and “implementing” governmental policy. As noted by the majority, the Missouri Clean Water Law, sec. 644.006, et seq., originally enacted in 1972, declares Missouri’s public policy for the protection of the State’s waters, as follows:

[Wjhereas this state must possess the authority required of states in the [federal Clean Water Act] if it is to retain control of its water pollution control programs, it is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain and improve the quality thereof ... to provide for the prevention, abatement and control of new and existing water pollution; and to cooperate with other agencies of the state ... the federal government and any other persons in carrying out these objectives.

Sec. 644.011, RSMo.

All agree that the 303(d) list was developed in response to the requirements imposed upon the states under the federal Clean Water Act, 33 U.S.C. sec. 1313(d)(1)(A). The objective of the federal Act, which is the same as that expressed by Missouri in its Clean Water Law, sec. 644.011, RSMo, is to protect, maintain, and improve the quality of the state’s waters through cooperative action. Compilation of the 303(d) list is the first and most significant step in accomplishing this policy, for it is not until the impaired water-bodies are identified that federal and state regulators may begin the difficult tasks of targeting the harmful pollutants and regulating the responsible polluters. Accordingly, when the state compiles a 303(d) list, it does so with the aim of “prescribing” and “implementing” both federal and state environmental policy. See Tonnar v. Missouri State Highway and Transp. Comm’n, 640 S.W.2d 527 (Mo.App.1982) (holding respondent agency engaged in rulemaking when it created a “Right-of-Way” manual pursuant to federal directives).

That the promulgation of the 1998-303(d) list “prescribes” and “implements” the “generally] applicabl[e]” policy of this State with regard to the quality of Missouri’s waters in satisfaction of the section 536.010(4) test does not, however, end the inquiry. In Baugus v. Director of Revenue, 878 S.W.2d 39 (Mo. banc 1994), this Court expanded on the MAPA’s general definition of “rule,” stating:

Implicit in the concept of the word “rule” is that the agency declaration has a potential, however slight, of impacting the substantive or procedural rights of some member of the public. Rulemak-ing, by its nature, involves an agency statement that affects the rights of individuals in the abstract.

Id. at 42 (citing Bonfield, State AdminisTRAtive Rule Making, sec. 3.3.1). (Emphasis added.) In addressing the Baugus requirement, appellants maintain that inclusion of the Missouri and Mississippi Rivers on the list may potentially affect their economic interests because of the likelihood of additional restrictions on their farmlands abutting the Rivers. Specifically, the appellant associations and their members argue that as a result of the 1998 — 303(d) list, the State must develop and implement TMDLs for the Rivers that will necessitate: changes in land management practices; limitation on sales and use of fertilizers, pesticides, and herbicides; increased costs in satisfying new pollution standards; increased costs of water treatment; and limitations on raw materials that can be used in production or manufacturing. Although respondents discount these claims of potential harms as “hyperbole” and the majority characterizes them as “speculative,” it cannot be denied that if the Rivers are included on the approved 303(d) list, TMDLs must be developed, and that in order to comply with the TMDLs, land use regulation must follow — all as required under the Clean Water Act. Thus, the potential for impacting the rights of association members is more than sufficient to meet the Baugus requirement and further confirms that promulgation of the 303(d) list is the promulgation of a rule.

As I see it, the disconnect between my position and that of the majority is my willingness and the majority’s unwillingness to acknowledge that the federal-state regulatory scheme contemplates a series of discrete rulemaking efforts, not a single process that eventually will culminate in final or ultimate land use regulations. Of course, the 303(d) list is not a final or ultimate land use regulation; it is instead a threshold determination — a precursor rule on which subsequent rules and regulations may be based. But it is no less a rule. Though the majority holds there is no “final agency action,” there is indeed a “final agency action” as to the 303(d) list. Moreover, it is an action that has a real and immediate harm to the appellants in this case — an action that itself constitutes a “potential impact” on the substantive rights of appellants by subjecting them to further rulemaking efforts in the establishment of TMDLs and the eventuality of land use regulations.

Alternatively, the majority holds that this case is not yet ripe for review. Initially, it must be noted that the issue of ripeness was not raised, briefed or argued by either party. Appellants, therefore, have not had the opportunity to respond to the majority’s novel reasoning on this issue. In any event, the majority cites no Missouri cases addressing ripeness in the context of a challenge to the validity of a rule under section 536.050.1 of the MAPA. Instead, the majority relies on federal jurisprudence, and Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), in particular, in holding, in essence, that appellants are not sufficiently aggrieved to bring a declaratory judgment action. On this issue, however, Missouri law is more lenient than federal law. Section 536.058, RSMo 2000, provides that

Any person who is or may be aggrieved by any rule promulgated by a state agency shall have standing to challenge any rule promulgated by a state agency and may bring such an action pursuant to the provisions of section 536.050.

(Emphasis added.) Although this provision is couched in terms of standing, rather than ripeness, in Missouri, the doctrine of standing encompasses the requirement of ripeness. See Missouri Health Care Ass’n v. Attorney General of the State of Mo., 953 S.W.2d 617, 620 (Mo. banc 1997). Therefore, a party who has established sufficient standing to bring a declaratory judgment action has necessarily succeeded in demonstrating that the case is also ripe. See id. To establish standing under section 536.053, parties need not show that they are now aggrieved by the rule, but only that they “may be aggrieved” in the future by the rule. Here, appellants “may be aggrieved” by the 303(d) list that subjects them to TMDLs and land use regulation to implement the TMDLs. Thus, under Missouri law, the case is ripe for review.

II.

Having determined that promulgation of the 303(d) list constitutes rulemaking under the MAPA, I would address the merits of the case to determine whether there was compliance with the MAPA’s rulemak-ing procedure.¹ Although the circuit court did not rule on this issue, the facts are undisputed, and this Court is obliged to dispose of the case. Rule 84.14.

The facts, some of which were omitted by the majority, show the following: Prior to adoption of the 303(d) list, respondent MDNR published four public notices specifying the bodies of water to be included on the list and soliciting comments. In none of these notices did MDNR indicate that it was considering the Missouri and Mississippi Rivers for inclusion on the final list to be submitted to the EPA. The first notice was published in January 1998 and contained no reference to the Rivers. In the second notice published in March 1998, the MDNR listed the Rivers as waters that the Sierra Club, but not the agency, had recommended for inclusion. No mention of the Rivers was made in the notice issued in May 1998. Then, in August 1998, a final notice was issued that would eventually be submitted to the Commission and in which the MDNR explicitly stated that the Rivers were not being listed “because there are no water quality contaminant violations.” Nevertheless, in the September 23, 1998, meeting, the Commission approved a final 303(d) list that included the Rivers.

Section 536.021, RSMo 2000, provides in pertinent part:

No rule shall hereafter be proposed, adopted, amended or rescinded by any state agency unless such agency shall first file with the secretary of state a notice of proposed rulemaking and a subsequent final order of rulemaking, both of which shall be published in the Missouri Register by the secretary of state as soon as practicable after the filing thereof in that office;....

It is well-settled that an agency’s failure to follow the rulemaking procedures set out in section 536.021 in adopting a rule renders the rule void. NME Hospitals, 850 S.W.2d at 74; Baugus, 878 S.W.2d at 42. Here, respondents failed to file anything with the Secretary of State disclosing their intent to place the Missouri and Mississippi Rivers on the 303(d) list. Nor did respondents publish a proposed or final order of rulemaking listing the Rivers in the Missouri Register. Each of these procedural missteps is a violation of section 536.021 and renders the final 303(d) list submitted to the EPA void.

III.

For these reasons, I would reverse and remand the case for entry of judgment in favor of appellants.

1 . In the 2002 legislative session, section 644.036, RSMo, was amended to require expressly that all future 303(d) lists be adopted pursuant to the MAPA's rulemaking procedures, chap. 536. 2002 Mo. Laws 170.