Scanlon v. Commonwealth, Department of Transportation

467 A.2d 1108, 502 Pa. 577, 14 Envtl. L. Rep. (Envtl. Law Inst.) 20146, 19 ERC (BNA) 2127, 1983 Pa. LEXIS 715

Opinions

OPINION

LARSEN

*, Justice.

The record in this case reveals the following facts: On June 29,1976, a lawsuit was filed against appellees, Pennsylvania Department of Transportation (Penndot), and Pennsylvania Department of Environmental Resources, et al., in the United States District Court for the Eastern District of Pennsylvania, by the Delaware Valley Citizens’ Council for Clean Air.¹ The action was brought to enforce the inspection/maintenance auto emission regulation (40 CFR 52.2038), under the authority of the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. Later, on February 18, 1977, a second lawsuit was brought against the appellees in the same court, by the United States of America,² to compel the implementation, maintenance and enforcement of an inspection/maintenance auto emission program in certain particular counties in Pennsylvania under authority of Federal Law.³ Eventually, the two cases were consolidated.⁴

On August 29, 1978, without adjudication of any of the issues raised, the actioná were concluded by the entry of a consent decree agreed to by counsel for the parties to the lawsuits.⁵ Under the terms and conditions of the consent decree, appellee Penndot was required to seek the enactment of enabling legislation for a franchise system of auto emission inspection and maintenance. In the event that such legislation was not obtained by July 1,1979, or, if the parties agreed, by October 1, 1979, then appellee Penndot would immediately move toward implementation of a private garage system of inspection. The General Assembly failed to provide legislation for a franchise system and Penndot proceeded to arrange for implementation of a private garage system as agreed. On December 22, 1979, pursuant to the consent decree, appellee Penndot adopted final regulations for an auto emission inspection program.⁶

On March 7, 1981, the consent decree was modified to extend the time within which Penndot was to implement the private garage system. On May 21,1981, the United States District Court refused Penndot’s request for another extension of time and ordered that the inspection/maintenance program as set forth in the consent decree be established without further delay. On June 16,1981, the District Court issued an additional order requiring appellees to have a fully operational program by May 1, 1982. Penndot proceeded to carry out the provisions of the consent decree which necessarily involved the expenditure of state monies. Final equipment standards were adopted and promulgated on October 10, 1981.⁷

On October 5, 1981, the General Assembly overrode a gubenatorial veto and enacted into law H.B. 456 which provided as follows:

“Neither the department nor any other department or agency of the executive branch of state government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission system of motor vehicles.” (1929, April 9, P.L. 177, Art XX, § 2013, added 1981, Oct. 5, P.L. 289, No. 99, § 2; 71 P.S. § 523).

After the passage of H.B. 456, Penndot ceased to implement the terms of the consent decree. As a result, on January 22, 1982, the United States District Court entered an order holding the Commonwealth in contempt.

In June and July of 1981, the present actions were initiated by the two groups of appellant-legislators, each group filing a separate petition for review in the Commonwealth Court.⁸ Both suits allege that the appellee Penndot was not empowered by any legislation to enter into a consent decree committing the Commonwealth to the implementation of an auto emissions inspection/maintenance program. The actions aver that, without authorizing legislation, Penndot lacked the authority to: (1) establish and implement an auto emissions inspection system; (2) ensure enforcement of such a system; and (3) establish any subsidiary programs to a primary emissions program. In each lawsuit the appellants asked, inter alia, for a declaratory judgment ruling that Penndot did not have the power to establish, implement and maintain an inspection/maintenance auto emission program as contemplated by the consent decree; and further that an injunction issue, enjoining appellees from performing the terms and conditions of the consent decree without obtaining authorization from the legislature.

After the two cases were consolidated for trial, the Commonwealth Court entered a decree finding that the appellee Penndot had the authority to establish, implement and maintain an auto emissions inspection program as called for by the consent decree and denied appellants’ prayer for relief. 66 Pa.Cmwlth. 129, 443 A.2d 1197. Appeal to this Court followed.

I.

Tl^e appellants argue that appellees lacked the authority to establish and implement an auto emissions inspection program at the time they entered into the consent decree calling for such a program.

The appellee Penndot, on the other hand, argues that indeed it had authority to commit to the implementation of an emissions inspection program by virtue of Sections 4701, 4702(a), 4521, 4531 and 6103 of the Motor Vehicle Code⁹ which Sections provide, in the order set forth, as follows:

§ 4701. Duty to comply with inspection laws

No owner or driver shall refuse to submit a vehicle to any inspection and test that is authorized or required by the provisions of this chapter.

§ 4702. Requirement for periodic inspection of vehicles

(a) General rule.-—The department shall establish a system of semiannual inspection of vehicles registered in this Commonwealth.¹⁰

§ 4521. Promulgation of regulations by department

The department shall promulgate regulations governing the number, size, color, type, construction, location and use of other equipment on vehicles consistent with but not limited by the provisions of this subchapter and taking into consideration different requirements for different classes or types of vehicles.

§ 4531. Emission control systems

(a) Compliance with established maximum levels.—No vehicle manufactured in compliance with the requirements of the Clean Air Act (77 Stat. 392, 42 U.S.C. § 1857), or any amendments or supplements thereto, shall have emissions exceeding the maximum permissible levels prescribed by law.

(b) Limitation on alteration of system.—No person shall change or alter the emission control system of a vehicle in such a manner that it fails to comply with the prescribed emissions criteria. It is unlawful for the vehicle to be operated under its own power until a reinspection at an official inspection station establishes its full compliance. § 6103. Promulgation of rules and regulations by department

In addition to the specific powers granted to the department by this title to promulgate rules and regulations, the department shall have the power in accordance with the provisions of the act of July 31, 1968 (P.L. 769, No. 240), known as the “Commonwealth Documents Law,” to promulgate, consistent with and in furtherance of this title, rules and regulations in accordance with which the department shall carry out its responsibilities and duties under this title.

None of the statutory provisions cited by the appellee Penn-dot empower it to implement an auto emissions inspection/maintenance program such as that which it agreed to implement in the Federal Court consent decree.

In considering Section 4701, it is helpful to examine its predecessor, Section 834 (75 P.S. § 834) which provided:

“(a) Every owner of a motor vehicle ... being operated in this Commonwealth, shall submit such motor vehicle to such inspection of its mechanism and equipment as may be designated by the secretary, including such emission control systems and devices for which the Secretary of Transportation, in consultation with the Secretary of Environmental Resources, has adopted inspection procedure and requirements which shall, to the extent possible and practical, be consistent with the requirements of the ‘Clean Air Act’ ... These requirements shall not apply within ninety (90) days after they are adopted, shall not be changed oftener than once a year and shall apply only to those motor vehicles as are required by Federal law or regulation to be equipped with such emission control systems and devices. The inspection of such devices and systems shall commence on the first day of inspection periods ... Such emission control systems and devices shall be inspected once a year.” (Emphasis added)

The language of Section 834(a) set forth above is not the original statutory language as adopted by the legislature in 1959. The provisions of Section 834(a) which immediately preceeded Section 4701, became part of the statute by amendment in 1972. This 1972 revision demonstrates a legislative intent, at that time, to grant Penndot the authority to mandate auto emissions inspections, an authority it did not previously have. The legislature accomplished this end by including in the statute such phrases as: “including such emission control systems and devices”; and “inspection procedure and requirements which shall, to the extent possible and practical, be consistent with the requirements of the ‘Clean Air Act1 ”; and “shall apply only to those motor vehicles as are required by Federal law or regulation to be equipped with such emission control systems and devices.” Section 834(a) was repealed by the General Assembly in 1976 when a comprehensive Motor Vehicle Code¹¹ was adopted. Among the provisions of the new code is Section 4701. Upon a reading of Section 4701, it is readily apparent that all references to emission control systems, emission control devices, inspection procedures and requirements, and the “Clean Air Act” were eliminated. The deletion of emissions systems language and “Clean Air Act” references evinces that the legislature intended to deny Penndot the authority to require emission systems inspections. “Change in the language of a statute ordinarily indicates a change in legislative intent.” Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977). From 1959 to 1972 Penndot did not have authority to require auto emission systems inspections. By virtue of the amended Section 834(a), from 1972 to 1977 Penndot was empowered to administer such an inspection system. After the repeal of Section 834(a) and the adoption of Section 4701, Penndot was left without authority to order a system of auto emissions inspection. Section 4701 requires vehicle owners and drivers to submit their vehicles to any inspection and test authorized by chapter 47 of the Motor Vehicle Code.¹² We find that nothing .contained in chapter 47 authorizes Penndot to establish and implement an auto emissions inspection system.

Section 4702(a),provides for a semi-annual vehicle inspection system for all vehicles registered in Pennsylvania. A program providing for annual auto emissions inspections of certain types of vehicles registered in a limited number of counties in the Commonwealth is not within the authority of Section 4702(a). Penndot does not have the power to modify or alter the extent of authority it statutorily receives from the legislature.

It is the General Assembly, not the Executive Branch, which has been given the constitutional power to determine what programs will be adopted in our Commonwealth and how they will be financed. Although this may be done upon the recommendation of the Executive branch, the final determinations are legislative in nature. The Executive’s function is to carry out those programs authorized by legislation.

Shapp v. Sloan, 480 Pa. 449, 469, 391 A.2d 595, 6 (1978).

Section 4521 provides Penndot with authority to regulate the type and kind of equipment which must be included in various classes of vehicles. No authority to implement an auto emissions inspection system is established by the provisions of this section. The right to prescribe equipment does not carry with it the power to mandate inspections.

Section 4531, although addressed to emission control systems, does not provide the inspection authority as contended by appellee Penndot. The provisions of 4531(a) require that all vehicles manufactured in compliance with the requirements of the “Clean Air Act” be equipped with an emissions control system that meets the specifications of the “Clean Air Act.”¹³ Section 4531(b) prohibits any alteration of the emissions control equipment which reduces its efficiency below the standard set by 4531(a). Neither 4531(a) nor 4531(b) vests Penndot with the authority to implement an annual system of inspection and testing of the required equipment. In addition Section 4531 applies to all vehicles throughout the entire Commonwealth manufactured in compliance with the Clean Air Act. It is not limited to certain types of vehicles registered in a small number of counties, regardless of whether the vehicles were manufactured in compliance with the Clean Air Act.

Section 6103 merely grants Penndot the general authority to promulgate rules and regulations is carrying out the specific powers granted it by statute. Section 6103 is only applicable when it is determined that Penndot has been authorized to act by some other provision of the code.

Clearly, at the time of the entry of the Federal Court consent decree, the appellee Penndot lacked the statutory authority to establish and implement the auto emissions inspection/maintenance program contemplated by that order. The desirability and merits of the system is not the question here; it is the extent of authority possessed by Penndot which is at issue. We hold that appellees simply did not have the authority to establish and implement such a system at the time it agreed to the consent decree, and thus had no authority to enter into the consent decree.

II

While this appeal was pending, the legislature enacted Act 3 of 1983¹⁴ which provides, in pertinent part, as follows:

(a) General rule.—Except as provided in subsection (b) neither the department nor any other department or agency of the executive branch of State government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission systems of motor vehicles.

(b) Exception.—The provisions of subsection (a) shall not apply when the secretary shall certify that such system is required to comply with Federal law and is necessary for the Commonwealth to receive or avoid the loss of Federal funds in which case the department may establish and administer such a system for motor vehicles registered in areas where periodic inspection of emissions or emission systems of motor vehicles is required by the Environmental Protection Agency of the United States or decrees of the courts of the United States.

Subsection (a) is a restatement of the Act of 1981, Oct. 5, P.L. 289, No. 99, § 2; 71 P.S. § 523 prohibiting expenditures for any emission inspection program in the Commonwealth.¹⁵ Subsection (b) provides an exception to the general prohibition mandated by subsection (a) and the previous Act of Oct. 5, 1981. Subsection (b) grants Penndot the authority to establish and administer an emissions inspection program whenever “the Secretary shall certify that such system is required to comply with Federal law and is necessary for the Commonwealth to receive or avoid the loss of Federal funds.”¹⁶ The Act goes on to further limit appellee’s authority by providing that if the Secretary makes such a certification, then Penndot may implement an inspection system only in areas of the Commonwealth where periodic emissions inspections are (1) “required by the Environmental Protection Agency of the United States,” or (2) required by “Decrees of the Courts of the United States.”¹⁷

Penndot points to Act 3 of 1983 as evidence of its authority to agree to the implementation of an auto emissions inspection system as provided by the consent decree. It is argued that Act 3 of 1983 is a limiting statute which restricts the broad authority granted by Section 4702 of the Motor Vehicle Code and specifically sets forth the type of auto emission inspection program which may be established. We do not see Act 3 of 1983 as a limiting enactment in the sense advanced by the appellees. Rather Act 3 of 1983 is a statute, coerced by a Federal Court Order,¹⁸ and delivered as ransom for the rescue of the citizens of Pennsylvania from the considerable financial distress caused by the withholding of million of dollars in taxpayers’ funds ticketed for Pennsylvania highways. But for the freezing of these critical funds and their threatened permanent loss, it is fair to conclude that the “exception” provisions of Act 3 of 1983 would not have been even conceived, let alone enacted into law.

Nothing contained in the provisions of Act 3 of 1983 gives the appellee blanket authority to establish an emissions inspection program when and where such a system is deemed necessary or desirable. The authority vested here is circumscribed by the specific conditions set forth in Subsection (b). Act 3 of 1983 authorizes Penndot to establish and implement an inspection system for motor vehicles registered in areas where emission inspections are required by the environmental protection agency of the Federal government or by decrees of the Federal courts. In this case the inspection system Penndot seeks to implement is embraced by the terms of a consent decree of the United States District Court for the Eastern District of Pennsylvania. The decree relied upon here, however, fails to provide the necessary condition required to activate Penndot’s authority. Act 3 of 1983 contemplates and refers to a valid decree based upon proper authority. Where the decree is a consent decree, as is the case here, proper authority includes the lawful ability and power of the parties to enter into the agreement. Penndot did not have the power to establish and implement an emissions inspection system as provided by the decree, and therefore, could not validly agree to the conditions of the consent decree. Furthermore, the legislature, by passing Act 3 of 1983, cannot validate retroactively Penndot’s consent to implement an emissions inspection program which, at the time of its consent, was beyond its authority. See: Hartle v. Long, 5 Pa. 491 (1846). The unrestrained power to validate actions taken without authority tends to erode government by previously enacted laws and in its place substitute government by men acting without authority, whose illegal acts may subsequently be validated. The rights of society are better protected when they can only be affected by previously enacted laws. Our system of government rests upon the will of the people and the authority granted thereby as expressed in previously enacted legislation, and not upon the adoption of legislation to justify actions previously taken without authority. When action comes first and legislative authority later, we have strayed from constitutional government. See: Horton v. Kyle, 81 Fla. 274, 88 So. 757 (1921).

Ill

We conclude that at the time appellee Penndot agreed to the terms of the Federal Court consent decree providing for the implementation of an emissions inspection program, it did not have legislative authority to establish such a system. Because of the lack of authority, Penndot could not validly agree to establish and administer an inspection program and its purported agreement to do so is void. Further, we conclude that nothing contained in Act 3 of 1983 does or can retroactively vest appellees with the requisite authority. In addition, the exception provided for in subsection (b) of Act 3 of 1983 has no application to the Federal Court consent decree under the facts in this case, in that the appellees’ agreement thereto is a nullity. Accordingly, and consistent with our holding that Penndot lacked the authority to consent to establish and implement an auto emissions inspection program, an injunction should issue enjoining appellees from performing the terms and conditions of the consent decree.

The decree of the Commonwealth Court is reversed and the case remanded for proceedings consistent with this opinion.

ROBERTS, C.J., and ZAPPALA, J., file dissenting opinions. NIX and HUTCHINSON, JJ., did not participate in the consideration or decision of this case.

This case was reassigned to writer on Sept. 20, 1983.

1

. Delaware Valley Citizens Council For Clean Air, et. al. v. Commonwealth of Pennsylvania, et al., In the United States District Court for the Eastern District of Pennsylvania, Civil Action No. 76-2068.

2

. United States of America v. Commonwealth of Pennsylvania, et al., In The United States District Court for the Eastern District of Pennsylvania, Civil Action No. 77-619.

3

. Clean Air Act, as amended, 42 U.S.C. § 7413(b).

4

. Civil Action Nos. 76-2068 and 77-619, see notes 1 and 2.

5

. Mr. Justice Zappala’s dissenting opinion is factually incorrect when it states that the Commonwealth of Pennsylvania is an active party in these proceedings. Although the Commonwealth of Pennsylvania was an original named party, these proceedings are based upon the consent decree which was signed only by the Pennsylvania Department of Transportation and the Pennsylvania Department of Environmental Resources. Additionally, this matter was submitted to the lower court by stipulations of the parties and the only appellee parties who signed the stipulations were the Pennsylvania Department of Transportation and the Pennsylvania Department of Environmental Resources.

6

. 67 Pa.Code § 177.1 et seq.

7

. 11 Pa.Bul. 3519 (1981).

8

. Burd, et al. v. Commonwealth, et al., No. 1506 C.D.1981. Scanlon, et al. v. Commonwealth, et al., No. 1762 C.D.1981.

9

. Act of 1976, June 17, P.L., 162, No. 81 § 1 eif. July 1, 1977, 75 Pa.C.S.A. 4701; Act of 1976, June 17, P.L. 162, No. 81 § 1 eff. July 1, 1977, 75 Pa.C.S.A. 4702; Act of 1976, June 17, P.L. 162, No. 81 § 1, eff. July 1, 1977, 75 Pa.C.S.A. § 4521; Act of 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977, 75 Pa.C.S.A. § 4531; Act of 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977; 75 Pa.C.S.A. § 6103.

10

. In 1982, Section 4702 was amended to provide for annual inspection of vehicles.

“Except as provided in subsection (b), the department shall establish a system of annual inspection of vehicles ...”

11

. Vehicle Code, 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977, 75 Pa.C.S.A. 101 et seq.

12

. Chapter 47, Inspection of Vehicles, 1976, June 17, P.L. 162, No. 81 § 1, eff. July 1, 1977. 75 Pa.C.S.A. §§ 4701 to 4732.

13

. 77 Stat. 392, 42 U.S.C. § 1857.

14

. 75 Pa.C.S.A. § 4706(b), as amended.

15

. Section 6 of Act 3 of 1983 repeals the Act of Oct. 5, 1981 (71 P.S. § 523).

16

. Vehicle Code, 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977, 75 Pa.C.S.A. 101 et seq.

17

. Vehicle Code, 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977, 75 Pa.C.S.A. 101 et seq.

18

. By order dated January 22, 1982, the U.S. District Court for the Eastern District of Pennsylvania ordered, inter alia, as follows:

“The Secretary of the United States Department of Transportation (“Secretary”), or his designee, shall not approve any projects or award any grants under Title 23 of the United States Code in the Philadelphia or Pittsburgh areas, as those areas are defined in § 2(c)(VI) below, other than for safety, mass transit, or transportation improvement projects related to air quality improvement or maintenance; See: 42 U.S.C. § 7506(a)”

“The Philadelphia Areas shall consist of Philadelphia, Bucks, Montgomery, Chester and Delaware Counties; the Pittsburgh Area shall consist of Allegheny, Beaver, Butler, Westmoreland and Washington Counties; See: Consent Decree §§ 3(f), 3(g)”