specially concurring:
I concur in the result reached by the majority, but not with all that is said in the majority opinion.
The majority takes the position that this court, in determining the validity of the rules and regulations of the Pollution Control Board (PCB), cannot adjudicate a constitutional challenge to those sections of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111*2, par. 1001 et seq.) upon which those rules are based. The majority states:
“[T]his petition is before our court pursuant only to the specific provisions of section [29] of the Environmental Protection Act. ” # # Any clear reading of the explicit terms of Section 29 makes it obvious that this court is limited to a review only of the rules and regulations promulgated by the Board. Nowhere in the Environmental Protection Act or elsewhere is there authority for this court to consider ” 0 ” a challenge to this or any other State statute on any grounds whatsoever.” 71 Ill. App. 3d 295, 297.
I agree that the instant appeal was brought to test the validity “of the rules and regulations promulgated by the Board.” However, an administrative rule that is based upon an unconstitutional statute is, of course, invalid. Indeed, a challenge to the enabling act that underlies an administrative rule is the most basic challenge that can be made to the validity of such a rule. The Supreme Court of the United States, in adjudicating the validity of an administrative order, has said: “Only if the statutory basis for an order is within constitutional limits, can it be said that the resulting order is legal.” (State v. United States Civil Service Commission, 330 U.S. 127, 138, 91 L. Ed. 794, 803-04, 67 S. Ct. 544, 551 (1947).) Only if the statutory basis for the PCB’s rules are within constitutional bounds, can it be said that the resulting rules are valid. Hence, I would reach the issue of the constitutionality of sections 23 through 25 of the Environmental Protection Act. Ill. Rev. Stat. 1977, ch. 111M, pars. 1023, 1024, 1025.
The majority next states that judicial review of the constitutionality of the underlying statute must be avoided in the instant case because, in the majority’s view, “[W]e are not proceeding under either administrative review or its equivalent.” However, it is manifest that the instant appeal is in the nature of administrative review. After all, we are called upon to determine the validity of an administrative rule promulgated by an administrative agency. The fact that we are reviewing the agency’s exercise of quasilegislative, as opposed to quasijudicial, power does not render this appeal a nonadministrative review action. It is noteworthy that in the Federal system, quasilegislative rulemaking is, with several exceptions, subject to review by the Federal courts pursuant to the explicit provisions of the Administrative Procedure Act (5 U.S.C. §553 (1976)); the subchapter of this Act which establishes review of administrative rulemaking also provides for judicial review of administrative orders of a quasijudicial nature. (5 U.S.C. §554 (1976).) It thus appears that Congress, in the analogous Federal situation, treats judicial review of administrative rulemaking as “an administrative review action.”
In the instant case, section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. HIM, par. 1041) provides that the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) shall govern the instant type of judicial review in all respects save two. First, review is to the “Appellate Court for the District in which the cause of action arose and not in the Circuit Court.” (Ill. Rev. Stat. 1977, ch. HIM, par. 1041; see also Supreme Court Rule 335.) Second, nothing in the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.), made applicable to judicial review of the rules and orders of the PCB, shall be construed to limit the review explicitly provided in section 29 of the Environmental Protection Act. (Ill. Rev. Stat. 1977, ch. 111M, par. 1041.) It thus would appear that according to the very terms of section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. HIM, par. 1041), which governs this appeal, this action is in the nature of administrative review. The Illinois Supreme Court has stated, on several occasions, that challenges to an underlying statute or ordinance can be reached by a court on judicial review of administrative action. (See, e.g., Winston v. Zoning Board of Appeals, 407 Ill. 588, 592 (1950); see also Howard v. Lawton, 22 Ill. 2d 331, 333 (1961); Ronda Realty Corp. v. Lawton, 414 Ill. 313, 315-17 (1953).) Once again, it appears that this court should reach the constitutional challenge to the underlying statute.
The majority next states:
“[W]e are called upon to weigh the validity of certain regulations promulgated by the PCB in its legislative capacity without benefit of an adversary evidentiary proceeding before us or before any lower court or administrative agency. In addition, it is clear that this court is not organized or equipped to function as a trial court, and any judicial economy realized by acting as such would be illusory.” (71 Ill. App. 3d 295, 297-98.)
It is difficult to comprehend this aspect of the majority’s opinion; the majority is apparently suggesting that this court, or a trial court, would be required to take evidence in order to decide the issue whether sections 23-25 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. HIM, pars. 1023-25) are unconstitutional. The issue of the constitutionality of a statute is, of course, a question of law for the court and does not require taking evidence. Indeed, the reason for making the validity of rules and orders of the PCB directly appealable to the appellate court was that review under the Administrative Review Act was limited, in the circuit courts, to questions of law. “The Environmental Protection Act authorizes review of Board orders in accordance with [the Administrative Review Act], 'except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court.’ As the Governor’s message noted [Governor Richard Ogilvie, Special Message on the Environment, at 4, April 23,1970], direct review accelerates the decision-making process: ‘There is no need for a trial court hearing to review hoard orders, since the Administrative Review Act limits review to questions of law.’ ” (Emphasis added.) Currie, Illinois Pollution Law Enforcement, 70 Nw. U. L. Rev. 389, 482 (1975).
I shall now turn to the merits of the challenge. The appellants charge that sections 23-25 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111M, pars. 1023-25) are void for vagueness. Section 24 provides as follows:
“No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business or activity, so as to violate any regulation or standard adopted by the Board under this act.” (Ill. Rev. Stat. 1977, ch. 111M, par. 1024.)
It is true that if the General Assembly had made it a criminal offense to emit noise that “unreasonably interferes with the enjoyment of life,” without more, the appellants would have a fair argument to the effect that the statute is void for vagueness. However, section 24, reasonably construed, only prohibits the emission of noise that violates a “regulation or standard adopted by the Board under this Act.” It thus appears that no person could be guilty of violating section 24 apart from a violation of a rule or regulation promulgated by the PCB under sections 25 and 27. It thus appears that the appellants’ argument in this regard is without merit. Cf. Grayned v. City of Rockford, 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294, 2298-99 (1972).
The appellants next argue that section 25 of the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. HIM, par. 1025) amounts to an unconstitutional delegation of power, by the General Assembly, to an administrative agency. It is true that the General Assembly cannot delegate its general legislative power to make the law; nonetheless, it may delegate to administrative agencies power to do those things which the General Assembly might do, but cannot do as understandingly or advantageously. (People ex rel. Daesch v. Mayor of Belleville, 22 Ill. 2d 226, 230 (1961).) When the General Assembly delegates legislative power to an administrative agency, it must establish intelligible standards to guide the officers of the agency in exercising that power. (See, e.g., BioMedical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540, 551 (1977).) “The precision of the permissible standard required to be set by the legislature must necessarily vary according to the nature of the ultimate objective and the peculiar problems involved.” (Board of Education v. Page, 33 Ill. 2d 372, 375 (1965).) Where the rules or regulations are based on highly technical information, the General Assembly may establish only the most minimal standards without offending the constitutional principle of separation of power. (See, e.g., Hill v. Relyea, 34 Ill. 2d 552, 555-56 (1966).) In the instant case, sections 25 and 27 of the Environmental Protection Act do establish criteria according to which the PCB shall exercise its rulemaking authority in the matter of noise control. Given the highly technical nature of the information that underlies the PCB’s rules and regulations, it cannot be said that the General Assembly’s failure to be more precise in establishing standards in this matter violates the Illinois Constitution. Ill. Const., art. II, §1.
Finally, the appellants challenge section 24 of the Environmental Protection Act on the grounds that it is “overbroad” in that it could conceivably be used by the PCB at some future date to restrict the exercise of free speech. The weakness of this argument is similar to the weakness of the appellants’ argument to the effect that sections 23-25 are void for vagueness. The appellants do not charge that section 24, apart from the regulations that may be promulgated under it has a “chilling effect” upon free speech; nor could they in any reasonable way argue to this effect. Rather, the appellants suggest that the PCB may at some future date choose to ignore the requirements of the First Amendment and enact rules and regulations that would inhibit free speech. This type of anticipatory overbreadth is not sufficient to ground a constitutional challenge. For a further discussion of this issue, see Grayned v. City of Rockford, 408 U.S. 104, 114-15, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302-06 (1972).