LOTTINGER, Chief Judge.
Appellants, Louisiana Environmental Action Network and Ascension Parish Residents Against Toxic Pollution (hereinafter collectively referred to as LEAN), appeal a decision of the Department of Environmental Quality (DEQ) granting an exemption to Rubicon, Inc. (Rubicon) from Louisiana's ban on the land disposal of hazardous waste.
FACTS AND PROCEDURAL HISTORY
Rubicon operates four injection wells at its facility in Ascension Parish, Louisiana near Geismar. These underground injection wells are used for the disposal of hazardous waste generated by Rubicon's operations.
Louisiana law prohibits the deep well injection of hazardous waste unless an exemption is granted by the DEQ. See La.R.S. 30:2193. In 1992, Rubicon submitted a petition to the DEQ requesting an exemption from the land disposal ban. On September 21, 1994, the DEQ granted an exemption in favor of Rubicon allowing the continued use of the underground injection wells. LEAN appealed this decision on October 21, 1994. Jurisdiction to review the decision was vested in this court pursuant to La.R.S. 30:2024(C).
La.R.S. 30:2024(C) provided in part:
Any person aggrieved by a final decision or order of the secretary may appeal therefrom to the Court of Appeal, First Circuit, if a motion for an appeal is filed with the secretary within thirty days after the final decision or order is served upon the respondent.
Subsequent to the filing of this appeal, Act 1208 of the Regular Session of 1995 was enacted by the Louisiana Legislature. The act transfers appellate jurisdiction of final DEQ decisions from the First Circuit Court of Appeal to the Nineteenth Judicial District Court and provides for the payment of witness fees to law enforcement officers subpoenaed in certain administrative proceedings.
Act 1208 provides:
AN ACT to amend and reenact R.S. 13:3662(H)(2) and (3) and R.S. 30:2024(C), relative to the Department of Environmental Quality; to provide for judicial review of agency actions; to provide for payment of witness fees to law enforcement officers subpoenaed in certain administrative proceedings; to provide for appeal of final enforcement or permit action; and to provide for related matters.
Be to enacted by the Legislature of Louisiana:
Section 1. R.S. 13:3662(H)(2) and (3) are hereby amended and reenacted to read as follows:
Act 1208 was prefiled in the House as House Bill No. 2117 on March 24, 1995. On March 27 it was read by title and referred to the House Committee on Natural Resources. On April 27 it was reported with amendments. The committee amended the bill to add Section 4 providing that "[t]he provisions of this Act shall be procedural law in accordance with Civil Code Article 6." It was passed by the House on May 17. It was subsequently received by the Senate, referred to and reported favorably by committee without amendments. It passed the Senate on June 13 without any amendments and was signed by the governor on June 29.
I. JURISDICTION
Following the enactment of Act 1208, Rubicon filed a motion for determination of jurisdiction requesting that this court address the issue of whether it maintains subject matter jurisdiction over DEQ appeals. At oral argument the issue of jurisdiction was addressed by the parties prior to hearing arguments on the merits of this case. The parties also filed post-hearing memorandum on the jurisdiction issue. DEQ, Rubicon and LEAN challenge the constitutionality of the act on two grounds: (1) the act does not confine itself to a single object as required by La. Const. art. III, § 15(A); and (2) the body of the act is broader than its title in violation of La. Const. art. III, § 15(A).
A. CONSTITUTIONAL ISSUE RAISED FOR THE FIRST TIME ON APPEAL
Generally, a litigant must attack the constitutionality of a statute at the trial level before it will be considered by an appellate court. Vallo v. Gayle Oil Company, Inc., 94-1238, p. 8 (La. 11/30/94); 646 So.2d 859, 864. The unconstitutionality of the statute must be specially pleaded and the grounds for the claim particularized. Id. at 864-65. However, several exceptions to this general rule have been recognized. One such exception is when the challenged statute becomes effective after an appeal is lodged in a higher court. Vallo, 646 So.2d at 864 n. 9; State v. Wright, 305 So.2d 406, 409 (La. 1974) (Summers, J., dissenting); Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 546 n. 5 (1971); Long v. Northeast Soil Conservation District of Louisiana, 226 La. 824, 77 So.2d 408, 410 (1954). When a statute becomes effective after the lodging of an appeal, it is impossible for the claimant to plead its unconstitutionality in the lower court. Long, 77 So.2d at 410. Under such circumstances, it would be unreasonable for an appellate court to refuse to consider a plea of unconstitutionality which was necessarily raised for the first time on appeal. Id.
The exceptions are articulated in State v. Wright, 305 So.2d 406, 409 (La. 1974) (Summers, J., dissenting) and Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 546 n. 5 (1971).
We are aware that the constitutionality of Act 1208 is challenged for the first time on appeal. However, considering the aforementioned exception and the motion for determination of jurisdiction, it is proper for this court to address the constitutional issue because Act 1208 became effective after the lodging of this appeal.
For the reasons which follow, we conclude that Act 1208 is unconstitutional as it violates the one object requirement of La. Const. art. III, § 15(A).
B. THE ONE OBJECT REQUIREMENT
Article III, § 15(A) of the Louisiana Constitution provides in pertinent part that "[e]very bill . . . shall be confined to one object." The purpose behind the one object requirement is to restrict the content of a legislative bill so as to prevent a legislator from having to consider two or more unrelated matters when deciding how to vote on a single bill Doherty v. Calcasieu Parish School Board, 93-3017 (La. 4/11/94); 634 So.2d 1172, 1175-76; Bazley v. Tortorich, 397 So.2d 475, 485 (La. 1981).
The "one object" requirement of Article III, § 15(A) differs from the Article III, § 15(C) requirement that amendments to bills be germane to the bill as introduced. For a first impression discussion and handling of the germaneness issue see Jones v. Board of Ethics for Elected Officials, 605 So.2d 1064 (La. 1992).
A bill is considered to have one object if the parts of the bill are reasonably related and have a natural connection to the general subject matter of the legislation. Doherty, 634 So.2d at 1176; Bazley, 397 So.2d at 485. The object of a bill has been defined as the aim or purpose of the enactment; its general purpose; or the matter or thing forming the groundwork of the bill. Airey v. Tugwell, 197 La. 982, 3 So.2d 99, 102 (1941). To determine whether a bill is confined to one object, it is necessary to first examine the body of the bill to ascertain its purpose. State v. O'Dell, 253 La. 418, 218 So.2d 318, 319 (1969).
Upon examining the body of Act 1208, it is clear that it contains two distinct objects. Section one of the act provides for witness fees for law enforcement officers subpoenaed by the Department of Public Safety and Corrections or by the DEQ. The provisions of section one are related and accomplish one object, namely the providing of witness fees in connection with proceedings by various state agencies. In contrast, section two of the act is in no way related to witness fees. This section eliminates the jurisdiction of the First Circuit Court of Appeal to review final decisions of the DEQ and transfers that jurisdiction to the Nineteenth Judicial District Court. The object of this section, which is to change appellate jurisdiction of DEQ decisions, is unrelated to the object of section one.
The two objects of Act 1208 are separate and distinct, and by including them in one bill, the legislature contravened the requirements of Article III, section 15(A) of the state constitution. The act is an example of the type of bill that the constitution sought to eliminate. It forces legislators to consider unrelated objects and then to vote on all of them at one time. Because Act 1208 is not confined to one object, it violates the one object requirement of the state constitution.
Violation of the one object requirement does not necessarily invalidate an entire act. When the title of an act expresses only one object, while its body sets forth two objects, the court must restrict its declaration of nullity to the object of the act which is not expressed in the title. Orleans Parish School Board v. City of New Orleans, 410 So.2d 1038, 1040 (La. 1982); State v. Ferguson, 104 La. 249, 28 So. 917, 919 (1900). However, if the title of the act expresses, and the body of the act embraces, two distinct objects, the entire act must be declared null, as the court may not choose between the two objects, holding one valid and one void. Ferguson, 28 So. at 919.
In the present case, the two objects embraced by the body of Act 1208 are also expressed in its title. The title states, in part, that the act will "provide for payment of witness fees to law enforcement officers subpoenaed in certain administrative proceedings" and "provide for appeal of final enforcement or permit action." Because the title of the act and the act itself embrace two distinct objects, we are constrained to hold the entire act invalid.
Because we declare Act 1208 unconstitutional in its entirety because of the one object violation, we pretermit any discussion of the issue that the body is broader than the title.
C. THE FIRST CIRCUIT RETAINS JURISDICTION
Having declared the act unconstitutional, we now discuss application of our decision to pending DEQ appeals.
During the Regular Session of 1995, the Legislature enacted two acts which addressed the issue of judicial review of DEQ decisions: Acts 1208 and 947. Under Act 1208, jurisdiction over DEQ appeals was to be transferred to the Nineteenth Judicial District Court on June 29, 1995, the effective date of the act. Act 947 § 1 provided that "[a]n aggrieved person may appeal devolutively a final permit action, a final enforcement action, or a declaratory ruling only to the Court of Appeal, First Circuit." The act went on to provide in Section 8 that "[i]f the provisions of [Act 1208] providing that review of final decisions or orders of the Department of Environmental Quality are to be appealed to the Nineteenth Judicial District Court . . . instead of the Court of Appeal, First Circuit, become effective, then . . . this Act [is] hereby amended to specify that such decisions or orders are to be appealed to said district court." Act 947 became effective on January 1, 1996.
Generally, when a statute is declared unconstitutional it is void ab initio and all acts done under such statutes are void and of no effect. Magee v. Landrieu, 95-0437, 95-0438, 95-0474, p. 6 (La.App. 1st Cir. 3/17/95); 653 So.2d 62, 65, writs denied, 95-0790, 95-0800, 95-0805, 95-0870 (La. 4/21/95); 654 So.2d 319, 320. However, where it would be:
unequitable to follow the general rule that an unconstitutional statute was void ab initio and without any legal effect whatsoever, or where it was impossible for the court to undo what had transpired under an unconstitutional statute and to restore the parties to some reasonable position, the courts have recognized exceptions to the rule as a matter of public policy or necessity in such instances.
Smith v. Lincoln Parish Police Jury, 327 So.2d 641, 644 (La.App. 2nd Cir. 1976) (quoting Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So.2d 244 (La. 1941)).
The circumstances in this case do not warrant an exception to the general rule. This is one of the first DEQ appeals to come before this court since Act 1208 was enacted. To date, no DEQ appeals have been transferred to the Nineteenth Judicial District Court. There are no pending appeals which would be adversely affected by declaring Act 1208 unconstitutional and void ab initio.
In the Matter of E.I. Dupont De Nemours Company, Inc., 94CA2549, was argued on the same day as the present case. The parties presented similar arguments regarding the constitutionality of Act 1208.
Pending our decision on the constitutionality of Act 1208 this court has deferred its decision on whether to transfer any pending appeals of DEQ actions.
When an act is declared void ab initio it has no legal effect whatsoever. Id. Because Act 1208 is void ab initio and without legal effect, that portion of Act 947 which would amend Section 1 and transfer jurisdiction to the district court is not activated. Thus, appellate jurisdiction over DEQ decisions is maintained in the First Circuit Court of Appeal through Act 947 § 1.
II. ADEQUACY OF DEQ'S DECISION
LEAN raised three assignments of error in its appeal of the DEQ's decision to grant Rubicon an exemption from the ban on the land disposal of hazardous waste. While the adequacy of the DEQ's decision was not raised as a specific assignment of error, LEAN suggests within its argument on the third assignment of error, that the DEQ did not fulfill its duty as public trustee of the environment because it failed to detail its findings in the final decision granting the exception.
LEAN assigned the following errors:
1. The DEQ's Final Decision granting Rubicon an exemption from the statutory ban on hazardous waste land disposal violates the DEQ's duly as primary public trustee of the environment to protect the environment "insofar as possible consistent with the health, safety and welfare of the people," to the specific detriment of Appellants whose members are beneficiaries of the public trust.
2. The DEQ is bound by the Louisiana constitution Louisiana statutes, and the DEQ's own rules and regulations. The Final Decision granting Rubicon the exemption from the Statutory ban on hazardous waste land disposal violates the Louisiana constitution the Environmental Quality Act, and the DEQ's Hazardous waste Regulations.
3. Based on the information and evidence contained in the administrative record the DEQ's Final Decision granting Rubicon an exemption from the statutory ban on hazardous waste land disposal restrictions is arbitrary and capricious, manifestly erroneous by not being based on substantial evidence of the record as a whole and is characterized by an abuse of discretion.
Although the adequacy of the final decision was not raised as a specific assignment of error, the issue is properly before this court. Under the state constitution, we, as the reviewing court of all final DEQ decisions, have a duty to protect the environment "insofar as possible and consistent with the health, safety, and welfare of the people." La. Const. art. IX, § 1. To fulfill this constitutional duty, we must review final decisions of the DEQ to ensure that they comport with applicable constitutional, statutory and regulatory requirements. Regardless of whether the adequacy of a decision is raised as a specific assignment of error, we may address this issue when necessary to fulfill our constitutional duty.
In February, 1992, Rubicon submitted its exemption petition to DEQ. After the required public comment period, the exemption was granted by a letter signed by Glenn A. Miller, Assistant Secretary of DEQ, and dated September 21, 1994. Attached to the letter were twelve conditions Rubicon was required to meet and a brief summary of DEQ's response to three issues which had been raised during the public comment period.
The duties of the Secretary of DEQ were succinctly stated by the Louisiana Supreme Court in Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d 1152, 1157 (La. 1984), wherein the court held:
The agency is required to use a systematic, interdisciplinary approach to evaluation of each hazardous waste project or facility. In determining whether the proposed project fully minimizes adverse environmental effects, the commission [DEQ] necessarily must consider whether alternate projects, alternate sites, or mitigative measures would offer more protection for the environment than the project as proposed without unduly curtailing non-environmental benefits. (Citation omitted).
This statement has since been referred to as the "IT Decision" and in Blackett v. Louisiana Department of Environmental Quality, 506 So.2d 749, 754 (La.App. 1st Cir. 1987), we summarized the Secretary's considerations into five categories:
First, have the potential and real adverse environmental effects of the proposed facility been avoided to the maximum extent possible? Second, does a cost benefit analysis of the environmental impact costs balanced against the social and economic benefits of the proposed facility demonstrate that the latter outweighs the former? Third, are there alternative projects which would offer more protection to the environment than the proposed facility without unduly curtailing non-environmental benefits? Fourth, are there alternative sites which would offer more protection to the environment than the proposed facility site without unduly curtailing non-environmental benefits? Fifth, are there mitigating measures which would offer more protection to the environment than the facility as proposed without unduly curtailing non-environmental benefits?
In In the Matter of American Waste and Pollution Control Co., 93-3163, p. 18 (La. 9/15/94); 642 So.2d 1258, 1265-66, the supreme court set forth the standard of judicial review to be employed by a reviewing court for an appeal of a decision of the DEQ Secretary:
In Save Ourselves, the standard of judicial review provided by LSA-R.S. 49:964 was applied by analogy to the quasi-judicial decisions of the DEQ Secretary. "Pursuant to § 964, a reviewing court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record." Save Ourselves, 452 So.2d at 1158.
On review, a court should not reverse a substantive decision of DEQ on its merits unless it can be shown that the Secretary was arbitrary or clearly gave insufficient weight to environmental protection in balancing the costs and benefits of the proposed action. The court must reverse if the decision was reached "without individualized consideration and balancing of environmental factors conducted fairly and in good faith." Save Ourselves, 452 So.2d at 1159.
In reaching a decision, the DEQ must consider and abide by the admonition from the supreme court that it "is required to make basic findings supported by evidence and ultimate findings which flow rationally from the basic findings; and it must articulate a rational connection between the facts found and the order issued." Id. It is only by detailing its reasoning does the DEQ uphold its position as public trustee and justify the discretion with which it is entrusted by constitutional and statutory authority in a contested environmental matter. American Waste, 642 So.2d at 1266.
However, the September 21, 1994 letter notifying Rubicon that the permit had been granted under certain conditions with the attached conditions and response to public comments falls far short of what Save Ourselves and American Waste call for. True, this court will uphold a decision of less than ideal clarity if the DEQ's reasoning can be easily discernible on the record. Save Ourselves, 452 So.2d at 1160. But where the decision of the DEQ does not comport in the slightest with the mandate of Save Ourselves and American Waste, there is no "less than ideal clarity" to uphold.
The decision or lack thereof in this matter cries out for this court as the court of first appellate review to step forward and perform its judicial function of instruction by detailing as general as possible the needs which the DEQ must meet in rendering decisions. A decision would be more in conformity with the above mandates if it at least contained: 1) a general recitation of the facts as presented by all sides; 2) a basic finding of facts as supported by the record; 3) a response to all reasonable public comments; 4) a conclusion or conclusions on all issues raised which rationally support the order issued; and 5) any and all other matters which rationally support the DEQ's decision. This is not an exclusive listing, but merely illustrative.
Further, it should be understood in that any written finding of facts and reasons for decision must satisfy the issues of whether: 1) the potential and real adverse environmental effects of the proposed project have been avoided to the maximum extent possible; 2) a cost benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrate that the latter outweighs the former; and 3) there are alternative projects or alternative sites or mitigating measures which would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable. Blackett, 506 So.2d at 754 (citing Save Ourselves).
The enumeration of five separate issues in Blackett was an overstatement. Save Ourselves only required satisfaction of the above three issues. To that extent, our decision in Blackett is amended.
DEQ has requested of this court in both oral argument and brief to "tell us what you what us to do and we will do it." Here we attempt to do just that.
CONCLUSION
In the absence of any findings by the DEQ Secretary, we hold that the petition was approved erroneously without proper evaluation. Accordingly, the September 21, 1994 approval of the petition by Rubicon, Inc. for an exemption from the land disposal restrictions is vacated and set aside; this action is remanded to the DEQ for the issuance of findings to support the approval of the petition by Rubicon, Inc. for an exemption from the land disposal restrictions consistent with the views expressed herein. Costs of this appeal are assessed against Rubicon, Inc.
VACATED AND REMANDED.
GONZALES, J., concurs in the result.
SHORTESS, J., agrees with the majority opinion and will add a concurrence.
FITZSIMMONS, J., dissents and assigns reasons.
FOGG, J., dissents and assigns reason.
LeBLANC, J., dissents in part affirms part assigns reasons.
FOIL, J., dissents, and concurs for the reason assigned by FOGG, J.
PARRO, J., concurs with the holding that Act 1208 is unconstitutional, but dissents from the majority's discussion of the adequacy of DEQ's decision for the reasons set forth in Judge FOGG's dissenting opinion.