specially concurring.
In this case, the Supreme Court of the United States has held that a state legislative act1 and certain rules authorized by that act did not honor the federal Commerce Clause *256and are therefore invalid as a federal constitutional matter. I concur with that portion of the lead opinion that holds that the substantive portion of that statute and those rules are void.
I do not join that portion of the lead opinion that treats the question of validity of a process — described in the constitutionally invalid statute as the process for adopting the constitutionally invalid rules — as if it were still a live or pending question. The procedure for implementing the subject of the unconstitutional statute through Emergency Board approval does not — cannot — exist separately from the substantive portion of the statute. But the substantive portion has been declared void because constitutionally invalid and, therefore, the substantive portion is no longer in existence. Although a substantive provision may perhaps exist as law even though there is no procedure for implementing it, a solely procedural provision is a nullity without any substance to which it ever can be applied. There is nothing before this court concerning that nullity on which any holding regarding it may be founded.
In this court’s original decision (held erroneous by the Supreme Court of the United States), the ruling concerning the legislative Emergency Board’s powers was expressly based on the concession of the executive department attorney (Attorney General) representing an executive department agency (the Department of Environmental Quality). Gilliam County v. Dept. of Environmental Quality, 316 Or 99, 105, 107, 849 P2d 500 (1993) (stating and restating the concession at the pages cited). Neither the legislature nor the Emergency Board was named a party to this action. Neither the legislature nor the Emergency Board was represented in Gilliam County v. Dept. of Environmental Quality, supra, by the executive department attorney who made the “concession” limiting both the legislature and the Emergency Board, which have not been heard in any stage of this case. Accordingly, this court cannot, consonant with due process or due *257course of law, affect the rights of those who are not parties herein.2 I cannot join in the lead opinion that suggests otherwise.
Moreover, if there were a party in this case defending the rights of the Emergency Board, that party would, perhaps, rely on a state constitutional amendment that the lead opinion neither considers nor discusses and which was neither examined in the reasoning nor explicitly detailed in the court’s original opinion. The people, by statewide vote amending the constitution in 1952, created Article III, section 3(1)(c), which authorizes the Emergency Board “to approve, or revise and approve, a budget of the money appropriated for” a “new activity coming into existence at such a time as to preclude the possibility of submitting a budget to the Legislative Assembly for approval.” See Lamb, The Emergency Board: Oregon’s System of Interim Fiscal Adjustment, 55 Or L Rev 197 (1976) (discussing the constitutional change).3 On its face, that constitutional authorization could fit the new activity of accepting toxic waste generated in other states and of establishing the dollar amount of fees to be charged for the new activity in order to fund the new personnel and other budget costs for that activity. Setting a level or amount of fee income to fund the budget is, arguably, directly related to the “budget” for the new activity that is to come into existence only after adjournment of the legislative session that enacted the statute that authorized *258the imposition of fees but which left the amount of the fees unspecified. However, we do not have the benefit of briefing or argument on any constitutional challenge raised in an adversarial case. There was no party present in any stage of this case to make that argument or other arguments that might have been made. We are not adequately advised to rule on the merits.
I do not concur in considering in this case, let alone declaring unconstitutional on the merits, a constitutional provision relating to the powers of a non-party agency of government where there is no longer an issue in the case to which that ruling may adhere.
Unis, J., joins in this specially concurring opinion.ORS 459.298 provides:
‘ ‘Subject to approval by the Joint Committee on Ways and Means during the .legislative sessions or the Emergency Board during the interim between sessions, the Environmental Quality Commission shall establish by rule the amount of the surcharge to be collected under ORS 459.297. The amount of the surcharge shall be based on the costs to the State of Oregon and its political *256subdivisions of disposing of solid waste generated out-of-state which are not otherwise paid for under the provisions of [statutes relating to solid waste disposal, domestic solid waste disposal, and household hazardous waste disposal]. These costs may include but need not be limited to costs incurred for [listing categories of future expenses that the amount of surcharge on out-of-state waste was required to cover.]”
See Astleford v. SAIF, 319 Or 225, 229, 234, 874 P2d 1329 (1994) (holding that a disputed claim settlement agreement entered into without participation by an affected “party” must be vacated for that reason).
The Oregon Constitution, Article III, sections 2 and 3, both adopted hy the voters in 1952, in part provide:
“Section 2. The Legislative Assembly shall have power to establish an agency to exercise budgetary control over all executive and administrative state officers, departments, boards, commissions and agencies of the State Government.”
“Section 3. (1) The Legislative Assembly is authorized to establish by law a joint committee composed of members of both houses of the Legislative Assembly, the membership to be as fixed by law, which committee may exercise, during the interim between sessions of the Legislative Assembly, such of the following powers as may be conferred upon it by law:
"* * * * *
“(c) In the case of a new activity coming into existence at such a time as to preclude the possibility of submitting a budget to the Legislative Assembly for approval, to approve, or revise and approve, a budget of the money appropriated for such new activity.”