specially concurring:
Although I fully agree with the majority opinion, I write specially because I fear that it does not fully convey the outrageous conduct of the Agency in this case. The record before us demonstrates that the Agency has arrogated to itself a role in which it— and it alone — can be trusted with the important task of protecting our environment. (See States Land Improvement Corp. v. Environmental Protection Agency (1992), 231 Ill. App. 3d 842, 849, 596 N.E.2d 1164, 1168 (Steigmann, J., specially concurring).) The Agency’s position in this case essentially is that not even the Board can be trusted when it comes to protecting the environment. In the Agency’s view, only it possesses that moral high ground, and normal legal rules and procedures be damned.
This case also suggests that the Agency views the Board as gutless and ineffective. Although I share the Agency’s view of the Board, I view the Board in that way because it tolerates unbelievably contumacious conduct from the Agency with nary a whimper. Indeed, as I observed at oral argument, I do not know what is more shocking: the Board’s spinelessness or the Agency’s lawlessness.
In my two decades’ experience in the criminal law, I have occasionally encountered an attitude among law enforcement officers similar to that displayed by the Agency in this case. In a criminal context, the out-of-control police officer muses with himself essentially as follows:
“I know that the defendant really is guilty and that his presence on the streets endangers society. Prosecutors are overworked and negligent, judges are confused and lazy (if not corrupt), and defense attorneys are just plain sleazy and will concoct lies in order to help their clients beat the rap. Thus, it’s morally O.K. for me to ‘tilt the scales slightly’ by how I handle this case [usually offering perjurious testimony regarding what defendant supposedly said or what supposedly was found on his person] because that is the only way I can ensure that ‘real justice’ will be done.”
I have set forth the above rationale in blunt, ugly terms because doing so best conveys how renegade cops think and why they are so dangerous. In this case, a renegade governmental agency — an agency empowered and entrusted by the General Assembly with the important task of protecting our environment — has run amok and, by its lawlessness, has demeaned the important task the State of Illinois has given it. Just as the renegade cop who commits perjury because of his distorted belief that that is the only way justice can be done perverts the criminal justice system and ensures precisely the opposite of what he hoped to achieve, so governmental agencies that view themselves above the law tarnish the good that they do, diminish public confidence, and deflect attention from their good works.
I have used some strong language in describing the Agency’s conduct, but the reader ought not have to rely upon my assessment of the record. Instead, the Agency’s conduct is best revealed by quoting what it has said to this court in its oral argument and appellate briefs.
At oral argument, the Agency’s lawyer was asked the following questions and gave the following responses:
“[Appellate Judge]: [I]s the relationship [between the Board and the Agency] essentially the same [as that between a court and prosecutor] with regard to the fact that the Agency is stuck with the rulings of the Board, just like prosecutors are stuck with the rulings of the court, whether the prosecutor or the Agency likes them or not?
[Agency Lawyer]: Your Honor, the Agency believes that it is required to abide by its statutes, and if the Board orders the Agency to do something which is not in compliance with the statute, then it [(apparently, the Board)] is exceeding its scope under its own provisions of the statute.
[Appellate Judge]: So the answer to that question is, ‘No?’
[Agency Lawyer]: The answer is: on occasion the Board exceeds its authority; and, yes, it is not akin to a prosecutor.
[Appellate Judge]: Within this system of law, counsel, who decides these matters? The individual members of the Agency, the Agency head, the Board, the Governor? Who decides this stuff? *** If you adjudicate matters before the Board pursuant to Illinois law, and they make a ruling that you don’t like, you can just simply say, as you do several times in your brief, ‘We strongly disagree and strongly adhere to our earlier views,’ and just kind of blow them off, is that it?
[Agency Lawyer]: Well, that’s why you have judicial review.
[Appellate Judge]: Pending judicial review.
[Agency Lawyer]: Pending judicial review?
[Appellate Judge]: Pending judicial review. The trial judge rules that the evidence is not admissible, and the prosecutor wants to appeal. Pending that, is that question still up for doubt, or what?
[Agency Lawyer]: Uh, I agree your Honor, that ... the Agency—
[Appellate Judge]: In fact, you never appealed anything here, did you?
[Agency Lawyer]: That’s correct. That’s correct.
[Appellate Judge]: So, you’re the prosecutor who says, T don’t like that ruling, and I am not going to abide by it, but we’re not going to appeal.’
[Agency Lawyer]: Well, that ... that’s true. They ... they elected not to appeal in this case.
[Appellate Judge]: Tell me why this isn’t just an example of, frankly, lawlessness by the Agency, counsel.
[Agency Lawyer]: Well your Honor, now, specifically, you are referring to the ... the four sanctions motions.
[Appellate Judge]: I am referring to pretty much everything the Agency has done and said in this case.
[Agency Lawyer]: The...
[Appellate Judge]: You can take your pick on the lawless aspects of Agency behavior.
[Agency Lawyer]: *** [Regarding the discovery dispute,] the Agency believed that certain information was privileged and, if I recall, frankly, it involved information in deposition and in introduction documents ...
[Appellate Judge]: What was that theory again — ‘predecisional deliberative privilege’ — is that right?
[Agency Lawyer]: Uh, I believe that is what they call it.
[Appellate Judge]: Does that [theory] exist anywhere outside of the front door of the Agency? Weinstein on Evidence, Graham on Evidence, any cases, anywhere?
[Agency Lawyer]: I ... don’t ... can’t cite you anything, your Honor. ***
[Appellate Judge]: I could understand your argument if it had just happened once, if the Board had just sent the case back to you once. But they had to send it back two times, and maybe even a third time. How can you justify that?
[Agency Lawyer]: I would justify it the way the dissent justified it, your Honor, the two Board members who dissented.
[Appellate Judge]: But the dissent is not the opinion. Don’t you have to abide by the decision of Board. When the Board says ‘Do this,’ you can’t just thumb your nose at the Board and do something else.
[Agency Lawyer]: The Agency, and the way the Agency is set up, is to review these permit applications and to issue permits based on what they know about the source.
[Appellate Judge]: Counsel, what happens if there is a two-to-one decision out of this court ***? What happens when we issue an order from this court [and] our mandate to the Agency is: ‘Issue the permit.’ Will you say ‘No, hey, it was two to one; and it was a brilliant dissent agreeing with our position. We are not going to do it.’ Any problems with that?
[Agency Lawyer]: Yes, I have a problem with that.
[Appellate Judge]: What is the difference between that case and what happened here?
[Agency Lawyer]: The difference is that this is a court of law ordering ... issuing an order that must be followed; [but] those two agencies [(apparently, the Board and the Agency)] are part and parcel of the same administrative scheme.
[Appellate Judge]: You mean the Board’s orders don’t have to be followed by the Agency?
[Agency Lawyer]: The Board has to, itself, respect the law and the final order ...
[Appellate Judge]: [Do] the Board’s orders have to be followed by the Agency?
[Agency Lawyer]: Uh, yes, and it can be appealed. A party can appeal a final Board order and get review.
[Appellate Judge]: Well, then go back to [the earlier] question. You’re ordered on multiple occasions, to *** issue a permit, and you refused to do so. Because of the dissent? That was the best you could do in response to that question? Do you have some other excuse that you want to tell me about?
[Agency Lawyer]: The dissent shows that this was a reasonable dispute among the parties.
[Appellate Judge]: It was until the Board resolved it.
[Agency Lawyer]: *** [T]he majority of the Board was letting Grigoleit supplement the record as they went along, but [at the same time] was holding the Agency to its initial prehearing record. That was the problem. See, the Agency gets stuck in these situations....
[Agency Lawyer]: As I understand it, your Honor, the way the Agency is set up, is that the permitting people are compelled *** to look at the situation at the source, and, *** with what we know at this time, [to decide whether to] give them a permit with these sorts of conditions.
[Appellate Judge]: But [the] second time the case went to the Board, the Board disagreed. The Board said, ‘You have exceeded the scope of our remand. Don’t ask for any more information. Just go ahead with what you have ***.’ For a second time, you said, ‘No.’ You went ahead and exceeded the requirements of the Board. [Isn’t the Board] entitled to decide that? What gives you the right to say, ‘Board, you are wrong. We are not going to appeal; we are just going to do what we think we ought to do.’
[Agency Lawyer]: Well, I’m not so sure that the Agency could have appealed because there was ... because there wasn’t a final order.
[Appellate Judge]: Why wasn’t that final? It said ‘Issue the permit. Forget about adding all this other stuff on.’ But you didn’t issue the permit without forgetting about adding this [other] stuff. Why didn't you appeal?
[Agency Lawyer]: The reason is that the Agency cannot appeal an order that says ‘Issue a permit.’ Nor could anyone else because those orders refer the Agency to section 39(a) of the statute [(Ill. Rev. Stat. 1991, ch. Ill%, par. 1039(a))]. And that statute says, ‘The Agency in deciding whether to issue a permit must consider conditions,’ and conditions require discretion.
[Appellate Judge]: So, then, the order of the Board is no different from an order of this court. If we issue that order and refer to section 39 then, by God, those guys [at the Agency] — guardians of everything that is safe and pure in our environment — have to make sure our order, our mandate, meets with their approval before they’re going to comply with it. Isn’t that right?
[Agency Lawyer]: No, because this court can remand cases ... it can issue an order of ... it can issue an order remanding a case.
[Appellate Judge]: Our orders have merit or have power and authority, and the orders of the Board don’t?
[Agency Lawyer]: No, if this court orders a remand to go do some further act, that, by law, that is an appealable order.
[Appellate Judge]: How about, ‘We reverse the Agency’s denial of Grigoleit’s application for an operating permit, and order the Agency to issue it.’ How’s that sound?
[Agency Lawyer]: You can do that, yes.
[Appellate Judge]: And would the Agency do it?
[Agency Lawyer]: Yes, it most certainly would.
[Appellate Judge]: But not for the Board’s order, saying the same thing. I’m quoting from the Board’s order, by the way.
[Agency Lawyer]: I recognize that your Honor ***.
[Appellate Judge]: I want you to explain the difference between the orders of the Board and their authority, and the orders of this court and our authority. I always thought they were the same.
[Agency Lawyer]: They are not exactly the same, because the Board’s orders are only final if they are final under the administrative review law.
[Appellate Judge]: You mean, ‘We only have to follow them if they are final.’ If they are not final, you don’t have to follow them?
[Agency Lawyer]: Well—
[Appellate Judge]: You keep promising that you are going to abide by the mandates of this court, but your track record of following mandates of the Board isn’t too good. I want to know, how do you draw that distinction? Why are their orders, with the same effect as ours, not being followed?
[Agency Lawyer]: Because the Board ... I sense from your previous questions [that] you, at this point you are not going to accept this response. But ... the reason the Agency did what it did is because it believes it has no statutory authority; and the crux, the difference, between ... orders from your court and orders from the Board is that orders from the Board come from the same statute and they are part and parcel of the same regulatory scheme.
[Appellate Judge]: You don’t have to obey them?
[Agency Lawyer]: We have ... [The Agency] should obey the orders unless they exceed the scope of the Board’s authority. And once....
[Appellate Judge]: *** Your position then is, as a matter of law, the Board does not have authority to order you to issue a permit without [your] making a further investigation as to the situation at that time.
[Agency Lawyer]: The answer is yes.
[Appellate Judge]: [In other words,] [t]he Board is without jurisdiction, so to speak, without authority, *** [to tell] you to issue a permit without making a further investigation^ Such an order] is void as beyond [the Board’s] power.
[Agency Lawyer]: Your Honor, the Agency has never issued, as far as I know ...
[Appellate Judge]: Did you answer his question, counsel?
[Agency Lawyer]: The answer is yes. The answer is yes to that question, your Honor, as far as I know.
[Appellate Judge]: What authority do you have for that, because I didn’t understand where you were coming from until now.
[Agency Lawyer]: The authority is section 39(a) of the statute — the only statutory grant in all of Illinois law, as far as I know, that permits the Agency to issue a permit — and that is what the Board ordered them to do: issue a permit.
[Appellate Judge]: We are talking about the power of the Board, not the power of the Agency.
[Agency Lawyer]: Right. The power of the Agency to do what the Board ordered the Agency to do comes from section 39(a); and that section says, ‘In granting a permit, it must consider conditions.’ And considering conditions requires *** the agency to use technical staff....
[Appellate Judge]: What you say is that the Board cannot order you to issue a permit without conditions, without exercising your discretion regarding conditions.
[Agency Lawyer]: Precisely.
[Appellate Judge]: Wouldn’t that be the same as far as we are concerned under your theory?
[Appellate Judge]: The statute makes no exceptions. Why isn’t it the same thing for this court?
[Agency Lawyer]: Your Honor, if ... if you ordered ... the Board ... [or] ordered the remand saying ‘Agency go issue without ... issue a permit without conditions,’ then we believe that ... respectfully, I have to say that the Agency would take the position that you misapplied the statute and would seek a further appeal. But, I mean, that is a legal issue; and we say that that is an incorrect application of the statute.
[Appellate Judge]: The supreme court takes the case; they agree with us; now what?
[Agency Lawyer]: Now the law has changed, and we would have to follow it. I mean, our position would be necessarily void.
[Appellate Judge]: The supreme court doesn’t take the case; are you going to accept our mandate?
[Agency Lawyer]: Yes.
[Appellate Judge]: But the statute hasn’t changed. The statute makes no distinction between orders of this court in administrative review and orders of the Board, does it?
[Agency Lawyer]: But, I mean, your opinion would be precedential value and would amend [sic] the statute.
[Appellate Judge]: The Board’s orders are without...
[Agency Lawyer]: *** That’s right, without precedential effect. They are a part of the same administrative scheme.
[Appellate Judge]: Precedent has to do with following it for some other case; it has nothing to do with the authority in any particular case, [does] it?
[Appellate Judge]: Counsel, I must say, for an attorney on behalf of a litigant who is arguing that the Board properly imposed the minimal sanctions it did, the posture you are taking before this court is hardly one of repentance for the errors of the ways of the Agency. It sounds to me like it is more, ‘In your face.’
[Agency Lawyer]: Well, I don’t intend it like that your Honor. *** I’m trying to explain why the Agency did what it did.
[Appellate Judge]: [In other words, it’s] the higher moral ground, [because] the Board *** can’t be trusted to understand what is really at stake here.
[Agency Lawyer]: There is an ongoing dispute between the Agency and the Board on the scope of each agency’s power under their common statute.
[Appellate Judge]: Under your theory, there can’t be an appeal if you refuse to issue a permit. Is that right? If the Board says to you, ‘You were wrong, issue the permit,’ and you refuse to do it, there can be no appeal because you have not exercised your discretion regarding conditions?
[Agency Lawyer]: Oh, that is absolutely right; because there is no ... the only ... under section 41 of the Act [(Ill. Rev. Stat. 1991, ch. HV-k, par. 1041)], the only final Board order ... the only final order is from the Board.
[Appellate Judge]: So all you have to do to prevent appeals is, when the Board tells you to issue a permit, just say ‘No.’ And then there can be no appeal because you have not exercised your discretion regarding conditions.
[Agency Lawyer]: *** Only the Board can issue a final and appealable order under section 41 of the Act. And ... you know ... the Agency does not mean to completely disregard the Board orders and all....
[Appellate Judge]: Just those they disagree with.
[Agency Lawyer]: Only when .... The Agency feels that it is required by the statute to protect the public interest, to abide ... do in good faith what its employees in its different departments are required to do.
[Appellate Judge]: Maybe it’s time, counsel, for a definitive statement putting the Agency in its place in [this statutory] scheme, and telling it that it follows the directions of the Board because it is the Board. Do you suppose [it] is about time for that?
[Agency Lawyer]: Well, your Honor it is up to you; and I would say that this is not the kind of case where some strong sanction is necessary, because there was no bad faith on the part of the Agency here. There was only an attempt to follow the statute.” (Emphasis in original.)
Eight days after the above oral argument, this court received a truly remarkable document, literally unprecedented as far as anyone connected with this court can recall. The document was entitled, “The Illinois Environmental Protection Agency’s Motion To Clarify Statements Made At Oral Argument.” In that motion, the Agency stated the following:
“Because of the peculiar overlap of the issues discussed at oral argument, the Agency believes that the Court may have a mistaken impression of the Agency’s and the Board’s positions in this case. As discussed at oral argument, these issues present significant public policy concerns that the Agency and the Board grapple with in many cases. The Agency believes, therefore, that the Court should consider the points presented in this motion before drafting its decision.
□First, the Agency does not believe that it may disobey Board orders. The record in this case reflects no intentional disregard of any Board order, and the Board has never found that the Agency intentionally disrespected one of its orders in this case. The good-faith dispute between the Agency and the Board does not relate to whether the Agency must comply with Board orders, for clearly it must; the dispute relates to the scope of the Agency’s obligations in following the Board’s orders.
[ ]In this case, for example, the Agency believed that it was following the Board’s order when it issued the permit with conditions. [Because at this point in its motion, the Agency makes factual assertions not in the record, we omit those assertions.]
[ ]If any statements by counsel suggested any other legal position, counsel misspoke. The Agency believes that the public interest requires the Court to consider these points before issuing its decision.” (Emphasis in original.)
Grigoleit objected to the Agency’s motion, and this court has today denied it. In support of its objections, Grigoleit wrote the following:
“The AGENCY’S position is clearly described in the AGENCY’S Brief, and the position was confirmed at oral argument in this cause. Now, apparently experiencing discomfort as a result of this Court’s inquiries during oral argument, the AGENCY wishes to amend its argument. ***
ARGUMENT
The AGENCY seeks to alter its position after two years (at a minimum) of refusing to comply with repeated orders of the BOARD. The AGENCY apparently had no uncertainty in its position that the AGENCY alone determines when, and if, a permit is to be granted when the AGENCY appeared before the BOARD, or when the AGENCY filed its Brief in this Court, or even when the AGENCY argued the matter on January 20, 1993. After this Court inquired as to the basis of the AGENCY’S position, the AGENCY now has qualms about its arguments.
The spurious attempt by the AGENCY to modify the position which it has taken throughout this case is improper. The AGENCY’S pleading, entitled Motion to Clarify, is not only misleading, it is also contrary to the arguments made by the AGENCY in its Brief, as well as contrary to the position taken by the AGENCY at oral argument herein. The Motion is not truly one seeking clarification, but rather, seeks to add confusion.”
The accuracy of Grigoleit’s objection is best shown by the following excerpts from the brief the Agency submitted to this court:
“The December 6th order directed the Agency to issue Grigoleit a permit. [Citation to Record.] Settled law vests broad discretion in the Agency to impose appropriate conditions on permits that it issues. ‘In granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board.’ IEPA §39(a), 111. Rev. Stat. ch. lll1^, par. 1039(a) (1991). See also id. (the Agency has a ‘duty’ to issue a permit only upon ‘proof by the applicant that the facility ... will not cause a violation of this Act or of regulations hereunder’). Under these provisions, the Agency had an obligation to use its discretion to impose appropriate conditions on Grigoleit’s permit.
*** Because the Agency has such discretion to impose conditions on permits, the December 6th order — which merely directed the Agency to ‘issue’ a permit — was not final.
Browning-Ferris and Jurcak arguably differ from this case because those cases involved no remand from the Board. They should not control this case, the argument goes, because the December 6th order effectively ordered the Agency to issue the permit without exercising any discretion regarding conditions. This argument, however, conflicts with the [Act] itself. With regard to conditions, the [Act] does not distinguish between initial permit reviews and remands from the Board that order the Agency to issue a permit. To the contrary, the [Act] establishes only one mechanism for granting permits: ‘[i]n granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board.’ IEPA §39(a), Ill. Rev. Stat. ch. HV-k, par. 1039(a) (1991) (emphasis added). The General Assembly did not give the Agency authority to issue a permit without considering conditions.
Any other construction of the [Act] risks real environmental danger.”
The General Assembly has charged the Agency with the important task of protecting our environment, and the Agency’s conduct in this case is unworthy of the General Assembly’s confidence. Vigorously advocating environmental concerns is not mutually exclusive with abiding by the law, and the conduct of the Agency in this case serves to denigrate — not further — its ability to protect our environment.