Secretary, Vermont Agency of Natural Resources v. Henry

Annotate this Case
SEC_VT_AG_NATURAL_RESOURCE_V_HENRY.93-605; 161 Vt. 556; 641 A.2d 1345

[Filed 22-Apr-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 93-605

 Secretary, Vermont Agency                    Supreme Court
 of Natural Resources
                                              On Appeal from
      v.                                      Environmental Law Division

 Leo R. & Nancy Henry                         February Term, 1994
 Greenwoods Tenants' Ass'n

 Merideth Wright, J.

 Jeffrey L. Amestoy, Attorney General, and Ron Shems and John H. Hasen,
    Assistant Attorneys General, Montpelier, for plaintiff-appellant

 Lila Shapero, Vermont Legal Aid, Inc., Burlington, for intervenors-appellees

 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

      GIBSON, J.     The Agency of Natural Resources (ANR) appeals a decision
 of the Environmental Law Division (ELD) vacating an administrative order of
 the Department of Environmental Conservation (DEC).  We reverse.
      In April 1993, DEC issued an administrative order requiring appellees
 Leo and Nancy Henry to apply for an Act 250 permit for their mobile home
 park and remove all existing tenants from the park by September 1993 and
 until the park was duly permitted.  The order was issued by Acting Commis-
 sioner Jack Long of DEC under 10 V.S.A. { 8008, pursuant to a letter of
 authorization from the Secretary of ANR, Charles Clarke.  The letter dele-
 gated to Long, among other powers and duties, "full authority to implement


 the compliance and enforcement provisions of 10 V.S.A. Chapters 201 and
      The Henrys appealed the order to the ELD.  The Greenwoods Tenants'
 Association, a group of mobile home owners at risk of losing their home-
 sites, intervened and moved for dismissal of the order on the basis that
 chapter 201 does not give the Secretary of ANR authority to delegate the
 issuance of administrative orders.  The ELD agreed with intervenors and
 vacated the order.
      The relevant provisions of chapter 201 are as follows:

              As used in this chapter:
              . . .

              (7) "Secretary" means the secretary of the agency of
           natural resources, or the secretary's duly authorized

 10 V.S.A. { 8002(7).

               (a) The secretary may issue an administrative order
           when the secretary determines that a violation exists.
           . . .

 Id. { 8008(a)

      Also relevant is 3 V.S.A. { 214, which provides that "[a] secretary .
 . . may delegate any authority, power or duty other than a specific
 statutory authority of the office to a designee; . . . ." (Emphasis added.)
 The public trust requires that a state agency or department head may not
 delegate authority or duties that are "discretionary or quasi-judicial in
 character, or require the exercise of judgment," absent a statute expressly
 permitting such delegation.  In re Buttolph, 141 Vt. 601, 604-05, 451 A.2d 1129, 1131 (1982); accord Margulis v. Myers, 175 Cal. Rptr. 787, 791-92
 (Ct. App. 1981) (powers that "'involve the exercise of judgment or
 discretion are in the nature of public trusts'") (quoting California School


 Employees Ass'n v. Personnel Comm'n, 89 Cal. Rptr. 620, 623, 474 P.2d 456,
 439 (1970)).
      In its decision, the ELD discussed the permissible extent to which an
 administrative head of a department may subdelegate authority that has been
 conferred by the Legislature.  Relying on 3 V.S.A. { 214, the ELD ruled that
 "absent a statute 'expressly permitting' the delegation, an administrative
 head of a department, such as the Secretary, cannot delegate powers and
 functions which are discretionary."  The ELD held that the issuance of an
 administrative order under 10 V.S.A. chapter 201 was a discretionary duty,
 and that no express subdelegation permission existed.  By way of
 explanation, the ELD pointed to 3 V.S.A. { 2825(d), adopted in 1990, which
 provides that "[t]he secretary [of ANR] may delegate authorities and duties
 assigned to him or her by statute, for the purpose of administering chapters
 55 [Aid to Municipalities for Water Supply, Pollution Abatement and Sewer
 Separation] and 159 [Waste Management] of Title 10 and chapter 120 [Special
 Environmental Revolving Fund] of Title 24."  Since { 2825(d) does not
 include chapter 201 of Title 10, the ELD concluded that the Legislature did
 not intend the Secretary to subdelegate authority to issue administrative
 orders in environmental law enforcement matters under chapter 201.
      The ELD found support for this holding when it looked at the
 preexisting definitional sections of the three chapters listed in { 2825(d).
 Two of them defined "Secretary" in a manner similar to 10 V.S.A. { 8002(7)
 to include an "authorized representative," see 10 V.S.A. { 6602(1); 24
 V.S.A. { 4752(5), and the ELD reasoned that the more recently enacted
 permission to delegate in { 2825(d) would have been unnecessary had the
 Legislature believed it had previously conferred express permission to


 delegate.  According to the ELD, the express citation of the three chapters
 in { 2825(d) served to exclude all other environmental statutes from
 permission to delegate, and the "authorized representative" language found
 elsewhere in the statutes confers only the authority for the use of "staff
 to gather and present facts, make recommendations, and draft orders for the
 Secretary's signature."
      ANR argues that subsection (d) of 3 V.S.A. { 2825 was part of a
 capital grants enactment that was intended to ensure the proper use of
 federal monies specifically designated for municipal water pollution control
 facilities, drinking water supply facilities, and solid waste management
 facilities.  See 1989, No. 276 (Adj. Sess.), {{ 29-37.  As such, ANR
 contends that the legislation was not intended to prohibit the Secretary
 from delegating authority to administer environmental programs not included
 therein.  We agree.
      The ELD's construction of { 2825(d) comes at the expense of the plain
 meaning of 10 V.S.A. { 8002(7), which defines "Secretary" to include a "duly
 authorized representative."  See Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232, 233 (1983) (when meaning of statute is plain on its face, it must be
 enforced according to its terms).  The construction also creates conflict
 where harmony is possible, for { 8002(7) does no more than grant express
 permission for the Secretary to delegate authority, in the same manner as 3
 V.S.A. { 2825(d), as authorized by 3 V.S.A. { 214.  See State Agency of Nat.
 Resources v. Riendeau, 157 Vt. 615, 620, 603 A.2d 360, 362 (1991) (Court
 favors interpretation that harmonizes conflicting statutory provisions).
      Moreover, the 1990 act, which added subsection (d) to 3 V.S.A { 2825,
 does not expressly repeal any existing legislation.  By ruling that {


 2825(d) preempts the field with respect to granting permission to delegate
 authority, the ELD fails to take account of the presumption against implied
 repeal of one statute by another.  Id.  Not only does the ELD's reading
 limit the functions of the Secretary's delegated representative to
 investigation, research, and drafting, but, more drastically, it would call
 into question, in many other environmental programs containing similar
 delegations of authority, all discretionary actions that have been
 undertaken by "authorized" representatives on behalf of the Secretary.  See,
 e.g., 10 V.S.A. chs. 23 (Air Pollution Control), 31 (Soil Conservation Act),
 47 (Water Pollution Control), 48 (Groundwater Protection), 59 (Underground
 Liquid Storage Tanks), and 159 (Waste Management).  Such a result would be
 unreasonable, could not have been intended by the Legislature, and should be
 avoided.  See In re Southview Assocs., 153 Vt. 171, 175, 569 A.2d 501, 503
 (1989) ("We will avoid a construction that would render the legislation . .
 . irrational.").  We therefore disregard as superfluous the redundancies
 between 3 V.S.A. { 2825(d)'s express permission to delegate and the
 additional express grants of permission contained in 10 V.S.A. { 6602(1) and
 24 V.S.A. { 4752(5).
      Intervenors argue that public policy considerations of accountability
 compel us to affirm the ELD.  But to require the Secretary personally to
 execute all environmental enforcement orders would not heighten account-
 ability, for the Secretary is already accountable within the political
 process, see 3 V.S.A. { 2821(a) (Secretary is appointed by Governor with
 advice and consent of Senate, and serves "at the pleasure of the governor");


 rather, it would risk overburdening the Secretary, making it more difficult
 to carry out the broad mandate assigned to the position.  We hold that the
 Acting Commissioner of DEC was duly authorized to issue the administrative
 order in this case and that 3 V.S.A. { 2825(d) did not repeal existing
 authority of the Secretary of ANR to designate an authorized representative
 to act on his behalf as provided in 10 V.S.A. { 8002(7).
      Reversed and remanded.

                                    FOR THE COURT:

                                    Ernest W. Gibson III, Associate Justice