Richmond County v. North Carolina Low-Level Radioactive Waste Management Authority

Judge COZORT

dissenting in part and concurring in part.

I disagree with the majority’s conclusion that Granville County Board of Commissioners v. North Carolina Hazardous Waste Management Commission, 329 N.C. 615, 407 S.E.2d 785 (1991) compels the affirmance of the trial court’s dismissal of plaintiffs’ claims that the Authority violated the General Statutes and its own rules. In Granville, plaintiff sought injunctive and declaratory relief on the basis that the North Carolina Hazardous Waste Commission had violated North Carolina statutes and its own administrative rules. The trial court ex mero mo tu granted a preliminary injunction on the basis that the Regional Agreement violated Article I, Section 6 of the North Carolina Constitution. The trial court never ruled on, and the Supreme Court never considered, the plaintiff’s claims on statutory and rule violations. After finding the case moot, the North Carolina Supreme Court addressed the justiciability of the issue before the trial court. The Court noted that the rule prohibiting court intervention unless there is a genuine controversy existing between the parties applies “with special force to prevent the premature litigation of constitutional issues.” Id. at 625, 407 S.E.2d at 791.

In this case, plaintiffs’ claims are based on, and the trial court is asked to rule on, whether the Authority has “violated pertinent provisions of N.C.G.S. §104G-1, et seq." In Granville, neither the trial court nor the North Carolina Supreme Court addressed plaintiff’s claim that the Commission had violated state law and its *710own administrative rules. I believe the distinction is significant. If Granville is interpreted to mean that the counties can bring no claim in court until after the final site selection, which may take several years, then obvious and apparent defects in the proceedings could not be corrected for many years. Under that scenario, the selection process must begin again', perhaps doubling or trebling the time to resolve a problem the legislature found urgent. Surely, the Supreme Court did not intend such a result. Granville seeks to prevent premature court intervention on constitutional grounds. I do not believe it was intended to be a total bar to timely access to the courts to cure obvious defects in administrative proceedings. Court intervention would not be premature when there is such a genuine controversy between the parties. To hold otherwise runs perilously close to violating Article I, Section 18 of the Constitution of North Carolina, which mandates that “(a)ll courts shall be open; every person for an injury done to him in his lands, goods, person or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.”

Allowing such timely review of claims based on excess of lawful authority does not run afoul of the primary case relied upon by the Supreme Court in the Granville decision. The Granville court quoted extensively from Pharr v. Garibaldi, 252 N.C. 803, 115 S.E.2d 18 (1960) for the proposition that “ ‘Courts will not undertake to control the exercise of discretion and judgment on the part of the members of a commission in performing the functions of a State agency.’ ” Granville, 329 N.C. at 625, 407 S.E.2d at 791 (quoting Pharr, 252 N.C. at 811, 115 S.E.2d at 24). The same passage quoted, however, leaves an opening for the type of claim brought by plaintiffs below. The Pharr court continued by stating that the court has no power to intervene “in the absence of fraud, manifest abuse of discretion or conduct in excess of lawful authority . . . . ” Granville, 329 N.C. at 625, 407 S.E.2d at 791 (quoting Pharr, 252 N.C. at 811-12, 115 S.E.2d at 25) (emphasis added). The plaintiff counties’ claims below alleged .conduct in excess of lawful authority, and I believe they should be heard in accordance with the exception recognized by Pharr and quoted by Granville.

I further believe that allowing plaintiffs’ claims regarding adherence to statutes and rules would not create a risk that the administrative process would be improperly delayed by frivolous claims for injunctive relief. No plaintiff would be entitled to *711preliminary injunctive relief unless evidence was presented which demonstrated probable cause plaintiff will be able to establish the rights asserted and a reasonable apprehension of irreparable loss unless immediate relief is granted. Williams v. Greene, 36 N.C. App. 80, 85, 243 S.E.2d 156, 159 (1978).

I therefore dissent from the portion of the majority opinion which affirms the trial court’s dismissal of the plaintiffs’ claims alleging that the Authority failed to follow statutes and regulations. I vote to reverse that portion of the trial court’s orders and remand the matters for an evidentiary hearing on those claims.

I concur with the majority’s opinion that the claims relating to the environmental impact statement (EIS) issue are now moot. I believe, however, that plaintiffs’ claims regarding the EIS were justiciable, since they likewise dealt with whether the Authority followed state law. In my opinion the trial court did not err in denying defendants’ motions to dismiss plaintiffs’ EIS claims.