This chapter explains the purpose and importance of administrative appeals; outlines the requirements for bringing an administrative appeal; and details what to expect and prepare for in the administrative appeal process.
What is an Administrative Appeal?
Industries and companies must obtain permits from the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources to ensure that they comply with environmental laws and regulations when building new facilities or when making major changes to an existing facility.
For instance, if a company wishes to build a new power plant near your community, it must acquire the necessary air and water quality permits which regulate the type and quantity of pollutants it may emit into the air and water.
In this case, the owners of the proposed facility would send an application with their plans for the power plant to the EPD. Afterwards, they will meet with the EPD and other regulatory agencies to ensure the plans comply with the necessary environmental laws and regulations.
Then, the EPD will prepare a draft permit for the facility. Next, the public gets to submit comments, as discussed in Submitting Public Comments. The EPD must publish the proposed permit for public comment and respond to all substantive comments. If the permit is issued anyway, and you are harmed by the facility, you may be able to challenge the permit through an administrative appeal.
An administrative appeal is the process of asking an agency to reconsider its decisions when issuing permits and getting an Administrative Law Judge to review a permit issuance when you disagree with how the process was done. When an agency fails to act in accordance with its duties under the law, it often has a direct effect on your rights as an individual and your desires for your community.
Terms to Know:
Administrative Hearing – a hearing to resolve disputes between government agencies and people affected by their decisions. This is like a lawsuit in court, but it takes place at the Office of Administrative Hearings before an Administrative Law Judge.
Administrative Law Judge (ALJ) – a type of judge who presides over administrative hearings and makes legal rulings and factual determinations in a case
Why Do Appeals Matter?
Imagine a construction company comes into your neighborhood to develop a series of fancy condominiums in what is currently a forested area used by the community to birdwatch, hike, and enjoy nature. The company will need to apply for certain permits with EPD to ensure it complies with environmental regulations. Sometimes EPD makes a mistake and issues these permits without upholding all of its obligations under environmental and administrative laws, or without considering all the potential impacts of the facility.
Administrative appeals allow you as an individual or community to force EPD to review the permits it has issued allowing a particular company to use (or pollute) some public resource.
What Do You Need for an Administrative Appeal?
Unfortunately, a general concern for the environment is not enough to get a hearing before EPD. A petitioner (the person or group filing a complaint) needs standing.
Standing refers to whether a person/party has the right to bring a case in front of the court.
To have standing, you need to show:
Actual injury – you are “aggrieved or adversely affected” by the permit. This could involve damage to your property costing you money, but could also include nuisance, harm to a place you enjoyed recreating in, or similar non-monetary injuries.
Causation – the contested activity is what caused your injury.
Redressability – the injury is the kind that the laws governing the permit at issue were designed to protect against, and successfully challenging the permit will get you relief in the form of striking down or improving the permit.
Final Agency Action
To be able to sue, there must have been a final agency action. You do not have standing to sue if EPD decides not to issue a permit or is in the intermediate stages of considering whether to issue a permit, but has not yet actually issued the permit.
However, there is an additional timing component – you must file your appeal within 30 days after the final action. This is where it is helpful to stay informed about projects in your community and sign up to get agency notices, so that you will have a sense of when permit decisions are likely to be made.
Start Early and Seek Advice
In addition, depending on the law governing a particular decision, you may not be able to file an appeal if you did not participate in the public comment period for the proposal. See Submitting Public Comments for more on the process for comment submission, and Appendix C-5 for a sample comment letter.
We recommend you talk to a lawyer to make sure you can show that you have standing before filing a petition for review, because if the judge decides you don’t have standing, your case stops immediately.
Grounds to Appeal
Ultimately, in order to invalidate the permit or proposal at issue, the person or group bringing the appeal must prove that EPD violated the law. There are two basic types of challenges that you can bring: procedural challenges and substantive challenges.
Procedural Challenges – this entails the process EPD is supposed to follow when issuing permits, such as allowing public comment at certain times.
A few of the grounds for procedural challenges include:
If EPD does not respond to your comments when it issues the final permit, you may have grounds for appeal. As discussed in previous chapters, EPD must give the public an opportunity to comment and make suggestions on a draft permit and must respond to those comments when it issues the final permit. However, EPD does not always comply with these requirements. Therefore, it is a good idea to periodically check in with EPD to see if the permit has been issued and if responses to the submitted comments have been published.
Also, as discussed in previous chapters, EPD must prepare documents explaining the reasons for granting permits under the applicable environmental laws. If EPD failed to do so, you may have grounds for challenging the issuance of the permit.
If substantial modifications were made to a permit without providing additional notice and comment procedures, you may have grounds for challenging the modified permit.
Substantive Challenges – available if there are provisions of the permit itself that do not comply with Georgia law.
The exact substantive reasons for appealing a permit will depend a great deal on the information that you uncover during your permit review, and the answers to questions regarding the impact of the proposed operations.
For example, consider the construction company example above. If Georgia law required that 25% of the trees on the property remain uncut, but the EPD issued a permit saying only 10% of the trees on the property needed to remain uncut, the permit would be open to a substantive challenge.
Both procedural and substantive challenges can be combined in a single appeal.
Administrative Appeal Process and Timing
Anyone who has standing – who is “aggrieved or adversely affected” by a permit issuance or some other action of EPD – may qualify for an administrative hearing before an ALJ.
In Georgia, an appeal must be filed with the EPD. The EPD then forwards the appeal to the Office of State Administrative Hearings (OSAH), who is responsible for assigning an ALJ to the claim and setting up your hearing.
To qualify for a hearing, you must file the appeal with EPD within 30 days of the day of issuance of the permit (or other action being appealed). If an appeal is not filed within 30 days from the day of issuance, you will lose your chance to appeal. This is true even if you did not know the permit was issued, so it is important to keep checking on the status of permits you think may be issued soon.
Georgia law requires the ALJ to hold the hearing and issue a decision within 90 days after the appeal is filed. However, if the ALJ finds “good cause,” the ALJ may extend the hearing for up to 60 additional days. Additionally, all parties may agree to an extension of any length. See the flow chart below for an illustration of this process.
During the time of the hearing and before the ALJ makes a decision, the effectiveness of the permit is “stayed,” meaning that the permittee may not do whatever the permit authorizes until the stay expires. Consider the “posh condominium” example from the beginning of this chapter: if you appealed the issuance of the permit to the construction company, a stay would mean the company would not be able to move forward on any construction while the administrative hearing process is ongoing.
The Hearing and Beyond
The ALJ hears the case presented by the person injured by the permit and EPD (who issued the permit). The company or industry whose permit is being challenged often “intervenes” (meaning that it joins in the case) so that it may present evidence as well. Each side presents its own evidence, including any experts. For instance, the condominium construction company from the example above would likely join the hearing so it could present its own evidence and argue that there were no legal flaws in the permit.
The administrative proceeding is “de novo” in nature, meaning the ALJ looks at the issue with fresh eyes and can look at evidence that may not have been considered by EPD when making its decision.De novo is a Latin term meaning from the beginning.
Consider the process in light of the condominium example:
The EPD evaluated what it considered to be relevant evidence and issued the permit.
You believe there was a problem when the EPD issued that permit and you appeal with the EPD.
The ALJ will review the case on their own, which is the de novo part, in that the ALJ will consider the issue without giving any weight to why the EPD came to its conclusion, and will consider any evidence you are able to present even if EPD did not consider that evidence.
After all parties have had an opportunity to be heard, the ALJ makes a decision.
There are no juries at administrative hearings.
Whichever side loses the case has a right to appeal the ALJ’s decision to the Superior Court of either Fulton County (where EPD headquarters is located) or the county in which the person or company challenging the ALJ’s decision resides. Superior Courts have the power to reverse the ALJ’s decision. This new petition for appeal must be filed within 30 days after the ALJ has made their determination.
Appealing the ALJ’s decision will not continue to stay the permit’s effectiveness the way the initial permit appeal did, unless you ask the Superior Court for a restraining order or injunction. The Superior Court will conduct a review without a jury, based on the record made by the ALJ. However, upon request, the court may also hear oral arguments and receive written briefs.
If a party appeals to the Superior Court, there are different ways in which the court will consider the evidence – called the standard of review. This is also the case if the losing side before the Superior Court appeals the Superior Court’s decision to an even higher court.
If the issue concerns a question of fact, the court is limited to referencing facts and evidence from the record (i.e. the materials that you and EPD presented to the ALJ). Factual disputes are likely a losing battle for the appealing party because the higher court must not substitute its judgment for that of the agency regarding whether factual evidence is persuasive. This is because higher courts usually trust lower courts to understand the facts of the case, as the lower court typically spends more time with the evidence than the higher court.
But if there is a question of law, then the higher court reviews the case to see if the ALJ made a mistake in applying the law. If the court finds that the ALJ’s decision was in error, then it may modify the decision or send the decision back to the agency to be re-done.
The following is an illustration of questions of fact versus law:
Question of Fact: Did the condominium developers hire an ecologist to review the construction site?Question of Law: Did the law require that the condominium developers hire an ecologist to review the construction site?
Do You Need a Lawyer?
There are no requirements that you have an attorney to file an appeal with EPD, or to appeal an ALJ’s decision to Superior Court. However, it is recommended that you contact an attorney because environmental laws and regulations can be complex, permit language can be confusing, and a lawyer can help you present your arguments in a way that will be familiar for a judge. No one wants to waste time or money, but sometimes hiring an attorney can help you save both because they will know the right strategies to employ to win the battle.
SELC, Hummingbird, and the Turner Clinic can help connect you with a lawyer, and we strongly recommend contacting us if you decide to appeal a permit, or appeal an ALJ’s decision to Superior Court. You can also find more contact information in Appendix B. Companies and industries in particular will often hire prestigious law firms to represent them, so you want to be as prepared as you can!