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City of Guyton v. Barrow

Supreme Court of Georgia

May 20, 2019

CITY OF GUYTON
v.
BARROW DUNN
v.
BARROW

          Peterson, Justice.

         At the core of the judicial power is the authority and responsibility to interpret legal text. We have many tools that aid us in this task. When we find the text of a statute ambiguous, nearly a century of Georgia case law instructs us to defer to the interpretation of the state agency charged with administering the statute. More recently, we decided that agency interpretations of their own regulations should be afforded the same deference. Some have argued that this doctrine is in tension with our role as the principal interpreter of Georgia law, and we granted certiorari here on that question. But any such tension could exist only in cases where we have exhausted all of our interpretive tools without determining a text's meaning. This is not one of those cases.

         At issue in this case is whether the Environmental Protection Division of the Georgia Department of Natural Resources ("EPD") properly issued a permit to the City of Guyton to build and operate a land application system ("LAS") that would apply treated wastewater to a tract of land through spray irrigation. Craig Barrow III challenged the issuance of that permit, arguing that, among other things, EPD issued the permit in violation of a water quality standard, Ga. Comp. R. & Regs., r. 391-3-6-.03 (2) (b) (ii) (the "antidegradation rule"), because it failed to determine whether any resulting degradation of water quality in the State waters surrounding the proposed LAS was necessary to accommodate important economic or social development in the area. An administrative law judge ("ALJ") rejected Barrow's argument, finding that the rule required an antidegradation analysis only for point source discharges of pollutants and the LAS at issue was a nonpoint source discharge. The superior court affirmed the administrative ruling. The Court of Appeals reversed, concluding that the plain language of the antidegradation rule required EPD to perform the antidegradation analysis for nonpoint source discharges, and that EPD's internal guidelines to the contrary did not warrant deference. See Barrow v. Dunn, 344 Ga.App. 747 (812 S.E.2d 63) (2018).

         We granted certiorari in this case to consider what level of deference courts should afford EPD's interpretation of the antidegradation rule, and whether that regulation requires an antidegradation analysis for nonpoint source discharges. We conclude that the Court of Appeals was correct that the antidegradation rule is unambiguous, and, therefore, we do not answer the first question, which matters only when a regulation is ambiguous. But the Court of Appeals erred in its interpretation of the regulation. The text and legal context of the regulation show that an antidegradation analysis is required only for point sources, not nonpoint sources. Therefore, we reverse.

         1. An overview of the City's LAS permit.

         In 2011, the City applied for a permit for the LAS as part of a plan to construct a municipal wastewater treatment facility on a tract of land in Effingham County. Under the City's proposal, wastewater that has been treated to remove solids and break down organic waste would be applied by spray irrigation to a portion of that tract of land, which would be covered with vegetation in order to absorb the treated wastewater. EPD issued a permit to the City in 2013, authorizing the City to build and operate the LAS. The permit placed a number of restrictions on the operation of the LAS: a prohibition on irrigation if conditions would permit runoff and discharge outside the sprayfield; establishment of buffer zones between the sprayfield and wetlands; a requirement that the groundwater leaving the boundaries of the facility must not exceed the maximum contaminant levels for drinking water; and a maximum application rate of 0.25 inches per hour and 1.61 inches per week, which was more restrictive than the general ceiling of 2.5 inches per week for a typical LAS. The permit also required the City to conduct a watershed assessment to determine baseline water quality, develop a watershed protection plan, and issue periodic reports outlining stream data and verifying that the watershed protection plan was being implemented.

         Barrow owns land across the road from the tract of land that contains the City's proposed LAS. He challenged the issuance of the City's permit, alleging that the City's operations would harm aquatic species in the wetlands on his property. Barrow specifically challenged the issuance of the permit on the basis that EPD failed to conduct an antidegradation analysis prior to issuing the permit. After several hearings, the ALJ concluded that the permit was lawful and that the City's LAS did not require an antidegradation analysis because it was a nonpoint source discharge.[1] Barrow sought review before the superior court, which affirmed the ALJ's ruling.

         Barrow appealed to the Court of Appeals, which reversed on the basis that EPD was required to conduct an antidegradation analysis before issuing the LAS permit. In reaching this conclusion, the Court of Appeals noted that it was undisputed that the LAS was a nonpoint source discharge and that nonpoint source discharges require a permit, and determined that the plain language of the antidegradation rule requires EPD to conduct an antidegradation analysis before issuing any permit that allows for the lowering of water quality. Barrow, 344 Ga.App. at 749-753. The Court of Appeals also rejected EPD's interpretation of the antidegradation rule ⸺ that it applied only to point source discharges ⸺ because the agency's interpretation was inconsistent with the plain language of the rule. Id. at 752-753.

         We granted the City's and EPD's petitions for certiorari, directing the parties to address questions of deference to agency interpretations and whether the Court of Appeals erred in concluding that an antidegradation analysis was required for the City's LAS. We first explain why we need not resolve the question of whether we should defer to EPD's interpretation of the antidegradation rule, before turning to the meaning of the rule itself. After reviewing the text of the rule within its applicable legal context, we conclude that the antidegradation rule did not require EPD to perform an antidegradation analysis before issuing the permit to the City, and therefore reverse the Court of Appeals.

         2. It is unnecessary to decide the question of judicial deference in this case.

         More than 30 years ago in The Atlanta Journal & Constitution v. Babush, 257 Ga. 790, 792 (2) (364 S.E.2d 560) (1988), we imported to Georgia the United States Supreme Court's jurisprudence on judicial deference to agency interpretations of regulations that has become known as Auer or Seminole Rock deference. See Auer v. Robbins, 519 U.S. 452, 461 (117 S.Ct. 905, 137 L.Ed.2d 79) (1997) (agency's interpretation of its own regulation is "controlling unless plainly erroneous or inconsistent with the regulation" (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (65 S.Ct. 1215, 89 LE 1700) (1945) (punctuation omitted)). In recent years, the validity of Auer/Seminole Rock deference has been strongly criticized. See, e.g., Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 615-616 (133 S.Ct. 1326, 185 L.Ed.2d 447) (2013) (Roberts, C.J., joined by Alito, J., concurring) ("The bar is now aware that there is some interest in reconsidering [Seminole Rock and Auer] I would await a case in which the issue is properly raised and argued"); Id. at 616-621 (Scalia, J., concurring in part and dissenting in part) ("For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of Seminole Rock or Auer deference"); Talk America, Inc v Mich. Bell Tel Co, 564 U S 50, 67-69 (131 S.Ct. 2254, 180 L.Ed.2d 96) (2011) (Scalia, J., concurring) (noting inclination to reconsider Auer in a case where properly raised). The United States Supreme Court has now granted certiorari to revisit its Auer/Seminole Rock precedent. See Kisor v. Wilkie, No. 18-15.[2]

         Our statement in Atlanta Journal that an agency's interpretation is "controlling"[3] unless "it is plainly erroneous or inconsistent" with the regulation seemingly requires us to follow an agency interpretation so long as it is reasonable. See 257 Ga. at 792 (2). Although our statement in Atlanta Journal placed no qualifiers on judicial deference to agency interpretations, it is clear that we are to defer to an agency's interpretation only when we are unable to determine the meaning of the legal text at issue. See Christensen v. Harris County, 529 U.S. 576, 588 (120 S.Ct. 1655, 146 L.Ed.2d 621) (2000) ("Auer deference is warranted only when the language of the regulation is ambiguous."). Our case law predating Atlanta Journal made that clear. Prior to Atlanta Journal, our long-held rule in interpreting statutes was that courts were to defer to an agency's construction only in cases where the meaning of a statute was ambiguous. See, e.g., Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 515 (4) (19 S.E.2d 396) (1942) (a "[reasonable] administrative interpretation and practice, continued for a long period, should be accepted as controlling . . . only when the law is ambiguous and susceptible of different interpretations"); Elder v. Home Building & Loan Assn., 188 Ga. 113, 116 (2) (3 S.E.2d 75) (1939) ("[W]here the invalidity of a statute is doubtful, [an agency's interpretation] has much weight with the court in determining its validity[.]"); Standard Oil Co. v. State Revenue Commission, 179 Ga. 371, 376 (176 SE 1) (1934) ("The rulings of departmental and executive officers are at best persuasive, which may be of great force in cases of doubt[, and] . . . should be restricted to cases in which the meaning of the statute is really doubtful[.]" (citation omitted)).[4] This long-held rule has survived Atlanta Journal. See, e.g., New Cingular Wireless PCS, LLC v. Ga. Dept. of Revenue, 303 Ga. 468, 471-473 (2) (813 S.E.2d 388) (2018) (applying rule in construing regulation); Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558-559 (1) (775 S.E.2d 527) (2015) (applying rule in construction of statute).

         We may conclude that an ambiguity exists, however, only after we have exhausted all tools of construction. See New Cingular Wireless, 303 Ga. at 471-472 (2) (813 S.E.2d 388) (2018) (using rules of statutory construction to construe regulation before concluding that, if any ambiguity existed, the agency's interpretation was unreasonable); see also Epic Systems Corp. v. Lewis, ___ U.S. ___, ___ (138 S.Ct. 1612, 200 L.Ed.2d 889) (2018) ("[D]eference is not due unless a court, employing traditional tools of statutory construction, is left with an unresolved ambiguity." (punctuation omitted)). A significant criticism of Auer/Seminole Rock deference is that courts, faced with the task of interpreting difficult agency regulations, are often too eager to sidestep the obligation of discerning what the law is. See Pereira v. Sessions, ___ U.S. ___, ___ (138 S.Ct. 2105, 201 L.Ed.2d 433) (2018) (Kennedy, J., concurring) (finding troubling lower courts' "cursory" application of rules of construction in interpreting immigration statute and their "reflexive deference" to agency interpretations); Perez v. Mortgage Bankers Assn., ___ U.S. ___, ___ (135 S.Ct. 1199, 191 L.Ed.2d 186) (2015) (Thomas, J., concurring in the judgment) ("[T]he Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid . . . . But we have not consistently exercised the judicial check with respect to administrative agencies." (citations and punctuation omitted)). A statute or regulation is not ambiguous merely because interpreting it is hard. See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 706 (111 S.Ct. 2524, 115 L.Ed.2d 604) (1991) (Scalia, J., dissenting) ("Chevron is a recognition that the ambiguities in statutes are to be resolved by the agencies charged with implementing them, not a declaration that, when statutory construction becomes difficult, we will throw up our hands and let regulatory agencies do it for us.").

         After using all tools of construction, there are few statutes or regulations that are truly ambiguous. And here, although the meaning of the applicable regulation is not obvious on its face, this does not mean the regulation is ambiguous. We explain below why the antidegradation rule is unambiguous given the legal context from which the rule developed. Because the rule is not ...


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