Berkshire-Litchfield Environmental Council, Inc. v. Esty ( 2016 )

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APPENDIX
BERKSHIRE-LITCHFIELD ENVIRONMENTAL
COUNCIL, INC. v. DANIEL ESTY ET AL.*
Superior Court, Judicial District of Hartford
File No. LND CV-13-6041645-S
Memorandum filed July 9, 2014
Proceedings
Memorandum of decision on defendants’ motion to
dismiss. Motion granted.
Nicholas J. Harding and Mary E. Mintel, for the
plaintiff.
Kimberly P. Massicotte and Sharon M. Seligman,
assistant attorneys general, for the defendants.
Opinion
BERGER, J.
I
On April 25, 2013, the plaintiff, Berkshire-Litchfield
Environmental Council, Inc.,1 commenced this suit
against the defendants; Daniel Esty, the Commissioner
of the Department of Energy and Environmental Protec-
tion (commissioner); the Department of Energy and
Environmental Protection (department); Susan Whalen,
the Deputy Commissioner of the Department; and
George C. Jepsen, the Attorney General; pursuant to
General Statutes § 22a-16 of the Connecticut Environ-
mental Protection Act (CEPA).2 In the plaintiff’s
amended complaint filed on June 28, 2013, the plaintiff
alleges that BNE Energy, Inc. (BNE), entered the state
of Connecticut’s Canaan Mountain Wilderness Natural
Area Preserve3 (the forest) on or about May 17, 2010,
and clear-cut more than 332 trees on approximately 2.5
acres. On November 13, 2012, the commissioner entered
into a consent order with BNE concerning remediation
plans for the forest.4 The plaintiff seeks a declaratory
judgment rendering the consent order void because it
alleges that the commissioner had no general statutory
authority, including that set forth in General Statutes
§ 22a-6 (a) (3),5 to enter into the consent order. In the
alternative, the plaintiff seeks a declaratory ruling that
the consent order must be revised to comply with Gen-
eral Statutes § 52-560a,6 which it alleges would require
referral of the matter to the attorney general and resto-
ration of the forest by BNE.
On December 26, 2013, the defendants moved to dis-
miss and to strike the action on grounds that the court
lacks subject matter jurisdiction because the plaintiff
has no standing to bring the suit, or that if it does
have standing, the suit should be stricken because the
plaintiff has failed to state a cause of action against the
defendants under CEPA. The defendants argue that the
plaintiff lacks standing to bring this suit under CEPA
because (1) CEPA does not provide for suits against
parties that did not cause or participate in causing envi-
ronmental damage; (2) CEPA cannot be used to force
a third party to take some action, in this case, to require
that the commissioner or the attorney general file suit
against BNE; and (3) CEPA cannot be used to void a
lawful consent order.
On February 13, 2014, the plaintiff filed a memoran-
dum in opposition to the defendants’ motion, arguing
that the commissioner misunderstands its allegations.
The plaintiff denies that it is requesting that the commis-
sioner obtain injunctive relief to have BNE restore the
state forest; rather, it argues that the commissioner only
had the authority under § 52-560a to refer the matter
to the attorney general. The plaintiff further asserts that
the commissioner did not have the authority to enter
into the consent order either pursuant to §§ 22a-6 or
52-560a, and that, by entering into the order, he has
prevented the plaintiff from pursuing an action against
BNE for violation of CEPA. The plaintiff also argues
that the commissioner, by entering into the order, has
prevented the restoration of the state forest, thereby
negatively impacting wildlife.
The defendants filed a memorandum in reply on
March 13, 2014. They argue that no statute requires
referral of the matter to the attorney general, the defen-
dants’ actions have not been illegal or impermissible,
and the commissioner has broad authority to enter into
a consent order. They also assert that the plaintiff lacks
standing because it has failed to allege a substantive
violation of environmental law or direct impairment
or destruction of natural resources. This court heard
argument on April 15, 2014.
II
‘‘A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.
. . . When a . . . court decides a jurisdictional ques-
tion raised by a pretrial motion to dismiss, it must con-
sider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . The motion to dismiss . . . admits all
facts which are well pleaded, invokes the existing
record and must be decided upon that alone.’’ (Internal
quotation marks omitted.) MacDermid, Inc. v. Leonetti,
310 Conn. 616, 626, 79 A.3d 60 (2013).
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . A determination regarding a trial court’s
subject matter jurisdiction is a question of law. . . .
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . The objection of want of
jurisdiction may be made at any time . . . [a]nd the
court or tribunal may act on its own motion, and should
do so when the lack of jurisdiction is called to its atten-
tion. . . . The requirement of subject matter jurisdic-
tion cannot be waived by any party and can be raised
at any stage in the proceedings. . . .
‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substan-
tive rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy. . . . The
requirement of directness between the injuries claimed
by the plaintiff and the conduct of the defendant also
is expressed, in our standing jurisprudence, by the focus
on whether the plaintiff is the proper party to assert
the claim at issue. . . .
‘‘Two broad yet distinct categories of aggrievement
exist, classical and statutory. . . . Classical
aggrievement requires a two part showing. First, a party
must demonstrate a specific, personal and legal interest
in the subject matter of the decision, as opposed to a
general interest that all members of the community
share. . . . Second, the party must also show that the
agency’s decision has specially and injuriously affected
that specific personal or legal interest. . . .
Aggrievement does not demand certainty, only the pos-
sibility of an adverse effect on a legally protected inter-
est. . . .
‘‘Statutory aggrievement exists by legislative fiat, not
by judicial analysis of the particular facts of the case.
In other words, in cases of statutory aggrievement, par-
ticular legislation grants standing to those who claim
injury to an interest protected by that legislation. . . .
‘‘Traditionally, citizens seeking to protect the envi-
ronment were required to show specific, personal
aggrievement to attain standing to bring a legal action.
. . . [CEPA] . . . however, waives the aggrievement
requirement in two circumstances. First, any private
party, including a municipality, without first having to
establish aggrievement, may seek injunctive relief in
court for the protection of the public trust in the air,
water and other natural resources of the state from
unreasonable pollution, impairment or destruction
. . . . General Statutes § 22a-16. Second, any person
or other entity, without first having to establish
aggrievement, may intervene in any administrative pro-
ceeding challenging conduct which has, or which is
reasonably likely to have, the effect of unreasonably
polluting, impairing or destroying the public trust in
the air, water or other natural resources of the state.
General Statutes § 22a-19 (a). . . .
‘‘Under § 22a-16, standing . . . is conferred only to
protect the natural resources of the state from pollution
or destruction. . . . Accordingly, all that is required to
invoke the jurisdiction of the Superior Court under
§ 22a-16 is a colorable claim, by any person [or entity]
against any person [or entity], of conduct resulting in
harm to one or more of the natural resources of this
state. . . . Although it is true, of course, that the plain-
tiff need not prove [his or her] case at this stage of the
proceedings . . . the plaintiff nevertheless must artic-
ulate a colorable claim of unreasonable pollution,
impairment or destruction of the environment. . . . A
complaint does not sufficiently allege standing [how-
ever] by merely reciting the provisions of § 22a-16
. . . . Rather, it must set forth facts to support an infer-
ence that unreasonable pollution, impairment or
destruction of a natural resource will probably result
from the challenged activities unless remedial measures
are taken.’’ (Citations omitted; internal quotation marks
omitted.) Burton v. Commissioner of Environmental
Protection, 291 Conn. 789, 802–804, 970 A.2d 640 (2009).
III
The defendants maintain that the plaintiff is improp-
erly attempting to use CEPA to sue them instead of
suing BNE for the destruction of the forest. The plaintiff
posits, however, that it would be unsuccessful in suing
BNE for violations of CEPA because of the preclusive
effect of the consent order. See Carothers v. Capoz-
ziello, 215 Conn. 82, 95–96, 574 A.2d 1268 (1990) (‘‘[a
consent order], just like a stipulated judgment or con-
sent decree, will be given preclusive effect to the same
extent as a judgment or decree rendered after answer
and contest’’ [internal quotation marks omitted]). The
plaintiff’s ability to sue BNE is, however, irrelevant to
the issue of whether the plaintiff has standing. Specifi-
cally, the issue is whether the plaintiff’s complaint
‘‘set[s] forth facts to support an inference that unreason-
able pollution, impairment or destruction of a natural
resource will probably result’’; (internal quotation
marks omitted) Burton v. Commissioner of Environ-
mental Protection, supra, 291 Conn. 804; from the
defendants’ conduct of entering into the consent order
and failing to seek damages from BNE under § 52-560a.
A
In count one in the plaintiff’s amended complaint, it
alleges the following:
‘‘14. The red bad and the hoary bat are both species
of Special Concern in Connecticut and both roost in
dense forests . . . like those found in the Canaan
Mountain Wilderness Natural Area Preserve.’’
‘‘15. Neotropical migratory birds rely on large forest
tracts . . . for breeding, including those on Canaan
Mountain.
‘‘16. There are approximately 200 species of Neotropi-
cal migratory birds; those that frequent the Canaan
Mountain Wilderness Natural Area Preserve include:
songbirds . . . and raptors . . . .
‘‘17. In February 2011, a golden eagle was found near
the Connecticut-New York border and it is now believed
there may be at least one hundred more that spend the
winter in northwestern Connecticut, residing on, or in
nearby or complimenting areas to, Canaan Mountain.
***
‘‘30. Though required by General Statutes § 52-560a,
neither the Commissioner, nor the Deputy Commis-
sioner, nor DEEP (collectively, the ‘DEEP Defendants’)
has required BNE to restore the Clear-cut Area to the
condition as it existed prior to BNE’s decimation of the
State Forest, or, in the alternative, has sought the costs
of restoration, including reasonable management costs.
Nor did the DEEP Defendants consider the willfulness
of the violation, the extent of damage done to the natu-
ral resources, or the appraised value of the trees or
shrubs cut in accordance with the statute.
‘‘31. The DEEP Defendants did not seek any damages
for the destruction of the natural resources or the
appraised value of the trees or shrubs cut.
***
‘‘33. After confirming that BNE had clear cut the trees
in the State Forest . . . the DEEP defendants should
have referred the matter to the Attorney General for
enforcement, as provided for in General Statutes
§ 52-560a.
‘‘34. Instead of referring the matter to the Attorney
General, the Deputy Commissioner entered into the
consent order.
‘‘35. The consent order erroneously claimed that the
Commissioner had the authority to act under . . .
§ 52-560a.
***
‘‘37. Nothing in General Statutes §§ 22a-6 or 52-560a
gives the DEEP Defendants authority to settle cases
involving the destruction of the State Forest without
the participation of the Attorney General or the Supe-
rior Court.
‘‘38. Because of the lack of jurisdiction of the DEEP
Defendants, as described above, the Deputy Commis-
sioner did not have authority to sign the Consent Order,
and the Consent Order is null and void.
‘‘39. As a result of DEEP’s failure to act in accordance
with Connecticut law, which ensures the restoration of
this valuable section of the State Forest that was ille-
gally destroyed, the State has now lost a unique habitat
that DEEP and the Attorney General are mandated by
Connecticut law to protect.
***
‘‘46. As [General Statutes § 26-303 et seq.; 16 U.S.C.
§ 6101; 16 U.S.C. § 668] make clear, Connecticut values
endangered and threatened species and essential habi-
tats, and the United States has taken steps to protect
Neotropical migratory birds and golden eagles, all of
which have ties to the area on, or in nearby or compli-
menting areas to, Canaan Mountain, which the DEEP
Defendants have failed and continue to fail to ade-
quately protect and restore.
‘‘47. The illegal actions of the DEEP Defendants have
prevented the State Forest from being restored in accor-
dance with General Statutes § 52-560a, and therefore
the DEEP Defendants have unreasonably impaired or
destroyed, and continue to unreasonably impair and
destroy, the natural resources of the State of Connecti-
cut and the public trust therein.’’
In count two, the plaintiff incorporates these para-
graphs and further alleges: ‘‘47. The actions of the DEEP
Defendants, both their incomplete investigation of
BNE’s actions and their refusal to follow the state policy
outlined in § 52-560a that requires BNE to restore the
State Forest to its natural state, unreasonably impaired
or destroyed, and continue to unreasonably impair and
destroy, the natural resources of the State of Connecti-
cut and the public trust therein.’’
These allegations are insufficient to infer unreason-
able harm to the environment caused by the defendants.
‘‘A complaint does not sufficiently allege standing . . .
by merely reciting the provisions of § 22a-16 . . . .
Rather, it must set forth facts to support an inference
that unreasonable pollution, impairment or destruction
of a natural resource will probably result from the chal-
lenged activities unless remedial measures are taken.’’
(Internal quotation marks omitted.) Burton v. Domin-
ion Nuclear Connecticut, Inc., 300 Conn. 542, 556–57,
23 A.3d 1176 (2011). The amended complaint clearly
alleges that BNE clear-cut the forest and that the defen-
dants did not take that action or permit it. The defen-
dants’ entering into the consent order and their failure
to seek damages—or to refer the matter to have the
attorney general seek damages—from BNE under § 52-
560a did not cause the harm in this case. More import-
antly, the plaintiff does not allege any specific facts
from which the court could infer how or why the con-
sent order is causing any destruction7 and is causing
harm now to the threatened or endangered species; it
simply concludes that the failure to seek restoration
is the cause of the alleged harm. See Fort Trumbull
Conservancy, LLC v. Alves, 286 Conn. 264, 273, 943
A.2d 420 (2008) (‘‘[o]ur case law establishes that, to set
forth a colorable claim under § 22a-16, the party seeking
relief must provide an indication as to how or why [the
challenged conduct] is likely to cause unreasonable
harm to the environment’’ [emphasis altered; internal
quotation marks omitted]); Fort Trumbull Conser-
vancy, LLC v. New London, 265 Conn. 423, 433, 829
A.2d 801 (2003) (‘‘In the present case, the allegations
of the complaint do not give rise to an inference of
unreasonable harm to the environment because it is
not evident how the defendants’ failure to follow certain
procedural requirements in adopting the development
plan or to consider alternatives to the demolition of
buildings in the Fort Trumbull area is likely to cause
such harm. Nor is it apparent what the nature of any
such harm might be.’’).
Construing the plaintiff’s claim of an invalid consent
order as a cause of action for unreasonable pollution
under § 22a-16 would effectively strip the commissioner
of the authority to enter into consent orders. See Con-
necticut Coalition Against Millstone v. Rocque, 267
Conn. 116, 139, 836 A.2d 414 (2003). ‘‘It is not our func-
tion to take such a step; that determination rests with
the legislature.’’ Id. Nevertheless, the plaintiff argues
that the commissioner had no authority to issue the
consent order8 and that the only enforcement action
allowed is that under § 52-560a.9
Section 52-560a (c) authorizes the owner of open
space land, the holder of a conservation easement, or
the attorney general to bring a suit in the Superior
Court. Specifically, the statute provides that ‘‘the Attor-
ney General may bring an action . . . .’’10 (Emphasis
added.) ‘‘[T]he use of the term may . . . ordinarily does
not connote a command. Rather, the word generally
imports permissive conduct and the conferral of discre-
tion.’’ (Internal quotation marks omitted.) DiLieto v.
County Obstetrics & Gynecology Group, P.C., 310
Conn. 38, 47–48, 74 A.3d 1212 (2013). The plaintiff’s
assertion that the commissioner could only refer the
matter to the attorney general under § 52-560a is an
unduly rigid and unworkable construction of the statute
and cannot be what the legislature intended. See Niz-
zardo v. State Traffic Commission, 259 Conn. 131, 157,
788 A.2d 1158 (2002) (‘‘[i]f two constructions of a statute
are possible, we will adopt the one that makes the
statute effective and workable’’ [internal quotation
marks omitted]). Thus, the court cannot construe the
statute to require anyone to bring a cause of action or
to mandate that the commissioner refer the matter to
the attorney general for enforcement.
The plaintiff also argues that by entering into the
consent order rather than referring the matter to the
attorney general to have the land restored, the commis-
sioner has both ‘‘usurped the authority of the [a]ttorney
[g]eneral’’ and has prevented the enforcement of, and
failed to enforce, the Connecticut Endangered Species
Act, General Statutes § 26-303 et seq.;11 the Neotropical
Migratory Bird Conservation Act; 16 U.S.C. § 6101;12
and the 1940 Bald and Golden Eagle Protection Act, 16
U.S.C. § 668;13 and to protect endangered or threatened
species, including neotropical migratory birds and
golden eagles, or essential habitats. Nothing in these
statutes can be construed as preventing the commis-
sioner from entering into a consent order.14
The commissioner entered into an order pursuant to
his statutory power under § 22a-6 (a) (3). Section 22a-
6, in relevant part, provides: ‘‘(a) The commissioner
may . . . (3) initiate and receive complaints as to any
actual or suspected violation of any statute, regulation,
permit or order administered, adopted or issued by
him. The commissioner shall have the power to hold
hearings, administer oaths, take testimony and sub-
poena witnesses and evidence, enter orders and insti-
tute legal proceedings including, but not limited to,
suits for injunctions, for the enforcement of any statute,
regulation, order or permit administered, adopted or
issued by him . . . .’’ (Emphasis added.) Our courts
have long been aware that the consent order is used
by the commissioner to define parameters and obliga-
tions of operation as well as obligations and penalties
for environmental violations. See, e.g., Rocque v. Farri-
cielli, 269 Conn. 187, 848 A.2d 1206 (2004); Walsh v.
Stonington Water Pollution Control Authority, 250
Conn. 443, 736 A.2d 811 (1999); Water Pollution Control
Authority v. Keeney, 234 Conn. 488, 662 A.2d 124 (1995);
Waterbury v. Phoenix Soil, LLC, Superior Court, judi-
cial district of Waterbury, Complex Litigation Docket,
Docket No. CV-98-0146037-S (March 26, 2009) (Crem-
ins, J.), aff’d, 128 Conn. App. 619, 20 A.3d 1 (2011);
Connecticut Resources Recovery Authority v. Dept. of
Environmental Protection, Superior Court, judicial dis-
trict of Hartford, Docket No. CV-95-0544912-S (May 1,
1996) (Hodgson, J.); Wright v. Woodridge Lake Sewer
District, Superior Court, judicial district of Litchfield,
Docket No. CV-0043504-S (January 7, 1992) (Susco, J.).
The consent order, issued pursuant to General Statutes
§§ 22a-5, 22a-5a,15 22a-6, 23-5, and 23-5c, demonstrates
the environmental policy for the preservation and main-
tenance of state land and forests.
Furthermore, the legislative scheme supports the
commissioner’s discretionary authority. In § 22a-5, the
legislature provided that ‘‘[t]he commissioner shall
carry out the energy and environmental policies of the
state and shall have all powers necessary and conve-
nient to faithfully discharge this duty. In addition to
and consistent with the environment policy of the state,
the commissioner shall (1) promote and coordinate
management of water, land and air resources to assure
their protection, enhancement and proper allocation
and utilization; (2) provide for the protection and man-
agement of plants, trees, fish, shellfish, wildlife and
other animal life of all types, including the preservation
of endangered species; (3) provide for the protection,
enhancement and management of the public forests,
parks, open spaces and natural area preserves . . . .’’
In § 23-5, the legislature provided that ‘‘ [t]he Commis-
sioner of Energy and Environmental Protection shall
have charge and supervision of all lands acquired by
the state, as public reservations, for the purposes of
public recreation or the preservation of natural beauty
or historic association, except such lands as may be
placed by law in the charge and under the supervision
of other commissions or officials.’’ In § 23-5c, the legis-
lature gave the ‘‘responsibility for selection, care, con-
trol, supervision and management of all natural area
preserves within the system’’ to the commissioner with
the obligation to ‘‘maintain such preserves in as natural
and wild a state as is consistent with the preservation
and enhancement of protected resources and educa-
tional, scientific, biological, geological, paleontological
and scenic purposes. . . .’’ These statutes and espe-
cially § 22a-6 (a) (3) provide authority to order alterna-
tive remedies for environmental harm, particularly in
light of the discretionary language of § 52-560a (c). Sec-
tion 22a-6 (a) (3), in relevant part, provides that ‘‘[t]he
commissioner shall have the power to . . . enter
orders’’ and gives the commissioner a statutory avenue
to address BNE’s acts. The invasive species studies
and passive growth management process fall within the
legislature’s grant of authority to the commissioner set
forth in the statutes.16
The commissioner also argues that his administrative
options to deal with the BNE violations are not circum-
scribed by § 52-560a; that is, it is not his sole enforce-
ment tool.17 He posits that the plaintiff has no standing
to challenge his discretionary authority found within
the terms of the consent order. Our Supreme Court has
stated, ‘‘Agencies, in general, are given broad discretion
to exercise their regulatory authority. . . . The United
States Supreme Court has compared an agency’s exer-
cise of its enforcement power to that of a prosecutor.
. . . In Connecticut, the legislature has granted the
department broad discretion to enforce the environ-
mental laws. . . . This court has held specifically that
the department has the discretion to choose the appro-
priate enforcement action to remedy pollution.’’ (Cita-
tions omitted.) Cadlerock Properties Joint Venture,
L.P. v. Commissioner of Environmental Protection,
253 Conn. 661, 670, 757 A.2d 1 (2000), cert. denied, 531
U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).
This view is consistent with that of our federal courts.
‘‘This Court has recognized on several occasions over
many years that an agency’s decision not to prosecute
or enforce, whether through civil or criminal process, is
a decision generally committed to an agency’s absolute
discretion. . . . This recognition of the existence of
discretion is attributable in no small part to the general
unsuitability for judicial review of agency decisions to
refuse enforcement. The reasons for this general unsuit-
ability are many. First, an agency decision not to enforce
often involves a complicated balancing of a number of
factors which are peculiarly within its expertise. Thus,
the agency must not only assess whether a violation
has occurred, but whether agency resources are best
spent on this violation or another, whether the agency
is likely to succeed if it acts, whether the particular
enforcement action requested best fits the agency’s
overall policies, and, indeed, whether the agency has
enough resources to undertake the action at all. An
agency generally cannot act against each technical vio-
lation of the statute it is charged with enforcing. The
agency is far better equipped than the courts to deal
with the many variables involved in the proper ordering
of its priorities.’’ (Citations omitted.) Heckler v. Chaney,
470 U.S. 821, 831–32, 105 S. Ct. 1649, 84 L. Ed. 2d 714
(1985).
The commissioner has the discretion to utilize differ-
ent statutory remedies available to him; a referral pursu-
ant to § 52-560a (c) is but one possibility and not the
only remedy. See, e.g., Greenfield v. Reynolds, 122
Conn. App. 465, 471–72, 1 A.3d 125 (‘‘it is clear that
the power to enforce zoning regulations conferred by
[General Statutes] § 8-12 on town officials is discretion-
ary’’), cert. denied, 298 Conn. 922, 4 A.3d 1226 (2010).
The commissioner also has the choice not to pursue a
remedy under § 52-560a, but to enter into a consent
order pursuant to § 22a-6 (a) (3), which, in this case,
provides for the ‘‘passive restoration of the site through
the regrowth of vegetation while controlling for inva-
sive species.’’
Finally, the plaintiff’s allegations most closely resem-
ble an improper permitting claim. ‘‘In order to read
our environmental protection statutes so as to form a
consistent and coherent whole, we infer a legislative
purpose that those other enactments are to be read
together with CEPA, and that, when they apply to the
conduct questioned in an independent action under
CEPA, they give substantive content to the meaning
of the word ‘unreasonable’ in the context of such an
independent action.’’ Waterbury v. Washington, 260
Conn. 506, 559, 800 A.2d 1102 (2002). As explained pre-
viously, authority to enter a consent order is part of
the legislative scheme for environmental protection and
as such should be construed under ‘‘the permitting pro-
cess’’ rule of Waterbury v. Washington, supra, 506.
In Rocque v. Mellon, 275 Conn. 161, 168, 881 A.2d 972
(2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164
L. Ed. 2d 664 (2006), the court reviewed its decision
in Connecticut Coalition Against Millstone v. Rocque,
supra, 267 Conn. 116–18, 134, and stated that ‘‘[a]llega-
tions of improper decisions by the commissioner for
failure to comply with the statutory requirements
regarding permit renewal proceedings and emergency
authorizations cannot be construed as anything other
than a licensing claim . . . . Relying on a long series
of cases in which we had held that § 22a-16 does not
confer standing to litigate permitting decisions that are
within the exclusive jurisdiction of a state agency, we
concluded that the trial court properly had dismissed
the plaintiffs’ claims. . . . In doing so, we distin-
guished other cases in which we had determined that
the plaintiffs had standing under § 22a-16 because,
although the lack of an appropriate permit had been
alleged, the plaintiffs had raised independent claims of
unreasonable pollution [that] were directed primarily
to the polluting activity itself, and not . . . to the valid-
ity of an existing permit or authorization . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.)
Rocque v. Mellon, supra, 168.
Similarly, in Burton v. Dominion Nuclear Connecti-
cut, Inc., supra, 300 Conn. 545, the federal Nuclear
Regulatory Commission approved an increase in the
plaintiff’s licensed core power. The plaintiff alleged vio-
lation of CEPA, among other things, based upon unrea-
sonable pollution caused by an increase in radioactive
discharge and the temperature of the thermal plume.
Id., 549. The court held that ‘‘the plaintiff has failed
to make a colorable claim sufficient to establish her
standing under § 22a-16 because her complaint does
not contain allegations of . . . pollution in excess of
that permitted under the regulatory scheme . . . .’’
(Citation omitted; internal quotation marks omitted.)
Id., 557.
Thus, it is Connecticut law that ‘‘[w]here the alleged
conduct involves a permitting claim . . . there is no
standing pursuant to § 22a-16 to bring the claim directly
in the Superior Court . . . .’’ Connecticut Coalition
Against Millstone v. Rocque, supra, 267 Conn. 148.
Standing exists, however, where the complaint contains
‘‘allegations of substantive violations giving rise to
unreasonable pollution . . . that is, allegations of pol-
lution in excess of that permitted under the regulatory
scheme . . . .’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Burton v. Dominion
Nuclear Connecticut, Inc., supra, 300 Conn. 557.
Burton v. Dominion Nuclear Connecticut, Inc.,
supra, 300 Conn. 542, in which the court held that the
plaintiff lacked standing, must be distinguished from
Burton v. Commissioner of Environmental Protection,
supra, 291 Conn. 789, in which the court held that the
plaintiff had standing. In Burton v. Commissioner of
Environmental Protection, supra, 804–805, the
Supreme Court concluded ‘‘that the plaintiff’s complaint
adequately sets forth facts to support an inference that
unreasonable pollution, impairment or destruction of
a natural resource will probably result from Millstone’s
operation. The complaint contains specific allegations
of harm to the marine life in the Long lsland Sound,
Niantic Bay and Jordan Cove, both through the dis-
charge of contaminated and heated water into those
bodies of water and through the ‘entrainment and
impingement’ of marine organisms at the reactor
intakes. The plaintiff also specifically alleged that the
existing permit renewal proceeding is inadequate to
protect the rights recognized by the act because the
hearing officer is biased and the department has pre-
judged the matter, thereby entitling her to judicial
review of the proceeding under [General Statutes]
§ 22a-20. In essence, therefore, the plaintiff alleges that,
if the hearing officer and the department had fairly and
impartially conducted the permit renewal proceeding,
they would not have allowed Dominion to continue
Millstone’s operations under the emergency authoriza-
tion or issued the tentative decision to renew the dis-
charge permit because the impact of the operations on
the marine life in the neighboring bodies of water is
more harmful than that permitted by the applicable
regulatory scheme.’’
In Burton v. Dominion Nuclear Connecticut, Inc.,
supra, 300 Conn. 557–59, the Supreme Court held that
the plaintiff lacked standing because her allegations
did ‘‘not support an inference that the increase in the
temperature of the thermal plume will exceed the tem-
perature permitted under the applicable legislative and
regulatory scheme. The allegations merely state in the
most generic terms that the uprate will elevate the tem-
perature of the thermal plume and thus cause harm to
the environment. In other words, the plaintiff s allega-
tions are without the kind of substantive heft required
under § 22a-16. Moreover, the plaintiff neither filed an
affidavit containing such allegations nor adduced evi-
dence at the hearing on motion to dismiss to remedy
this defect.’’ (Footnotes omitted.)
The allegations in the present case are unlike those in
Burton v. Commissioner of Environmental Protection,
supra, 291 Conn. 804–805. Here, the plaintiff does not
allege bias, conflict of interest, or make any allegations
regarding § 22a-20. Instead, as in Burton v. Dominion
Nuclear Connecticut, Inc., supra, 300 Conn. 557–59, the
plaintiff’s allegations vaguely conclude that the defen-
dants’ failure to restore the forest pursuant to § 52-560a
has unreasonably impaired or destroyed, and continues
to unreasonably impair and destroy, the natural
resources of the state. Ultimately, the plaintiff lacks
standing because its allegations are without the sub-
stantive heft required by § 22a-16, and it has not filed
an affidavit containing such allegations nor provided
evidence at the hearing on the motion to dismiss to
remedy this defect. See id., 557–59. Additionally, the
plaintiff has not raised independent claims of unreason-
able pollution that are directed primarily to the polluting
activity itself, and instead focuses its claims on the
validity of the consent order. See Rocque v. Mellon,
supra, 275 Conn. 168. Furthermore, the plaintiff does
not make allegations of pollution in excess of a regula-
tory scheme . See Burton v. Dominion Nuclear Con-
necticut, Inc., supra, 557. Therefore, the plaintiff has
failed to make a colorable claim sufficient to establish
its standing under § 22a-16.
B
The attorney general also seeks individually to have
this case dismissed. In the plaintiff’s memorandum of
law in opposition to the motion to dismiss on page
three, it argues that, if the consent order is invalidated,
then the attorney general may decide within his discre-
tion to bring a lawsuit. The plaintiff also asserts that
the attorney general was named because it decided that
he was a necessary party in light of the relief requested.
Nevertheless, other than the allegation that the commis-
sioner ‘‘should have referred the matter to the Attorney
General for enforcement’’ under § 52-560a, nothing in
the plaintiff’s amended complaint suggests that the
attorney general has violated any statute or failed to
act in any way. For the reasons set forth previously,
the motion to dismiss is also granted as to the attor-
ney general.
Accordingly, the motion to dismiss is granted based
upon lack of subject matter jurisdiction, and judgment
is entered for the defendants.
* Affirmed. Berkshire-Litchfield Environmental Council, Inc. v. Esty, 162
Conn. App. 478, A.3d (2015).
1
In paragraph forty of the plaintiff’s amended complaint, it alleges that
it is ‘‘a Connecticut nonprofit corporation with an office in North Canaan,
Connecticut. [The plaintiff] is a science-based organization that focuses on
environmental issues affecting the Northwest Corner of Connecticut and
the Berkshire region of Massachusetts, including but not limited to Canaan
Mountain, water and air contamination, zoning controls, vernal pools protec-
tion, good forestry practices, farmland protection, scenic ridgeline protec-
tion and inappropriate telecommunications tower siting.’’
2
General Statutes § 22a-16, in relevant part, provides: ‘‘[A]ny person, part-
nership, corporation, association, organization or other legal entity may
maintain an action in the superior court for the judicial district wherein the
defendant is located, resides or conducts business, except that where the
state is the defendant, such action shall be brought in the judicial district
of Hartford, for declaratory and equitable relief against the state, any political
subdivision thereof, any instrumentality or agency of the state or of a political
subdivision thereof, any person, partnership, corporation, association, orga-
nization or other legal entity, acting alone, or in combination with others,
for the protection of the public trust in the air, water and other natural
resources of the state from unreasonable pollution, impairment or destruc-
tion . . . .’’
3
In General Statutes § 23-5a, the legislature declared, ‘‘Connecticut is a
state of relatively small area, undergoing rapid industrialization and rapid
diminution of areas remaining in their natural condition. It is, therefore,
declared to be the public policy that carefully selected areas of land and
water of outstanding scientific, educational, biological, geological, paleonto-
logical or scenic value be preserved. In implementation of this policy, there
is established a Connecticut system of natural area preserves.’’
4
The consent order filed with the complaint (# 101.00) states that BNE
entered an agreement with landowners adjacent to the forest to determine
the feasibility of generating electricity by wind on the landowners’ property.
The consent order further states that BNE cut down trees relying on bound-
aries from a map prepared by a surveyor in 1987 for the department of
agriculture, which was recorded on North Canaan’s land records, and on a
field survey that confirmed the boundaries of the 1987 map.
5
General Statutes § 22a-6 (a), in relevant part, provides: ‘‘The commis-
sioner may . . . (3) initiate and receive complaints as to any actual or
suspected violation of any statute, regulation, permit or order administered,
adopted or issued by him. The commissioner shall have the power to hold
hearings, administer oaths, take testimony and subpoena witnesses and
evidence, enter orders and institute legal proceedings including, but not
limited to, suits for injunctions, for the enforcement of any statute, regula-
tion, order or permit administered, adopted or issued by him . . . .’’
6
General Statutes § 52-560a provides: ‘‘(a) As used in this section, ‘open
space land’ includes, but is not limited to, any park, forest, wildlife manage-
ment area, refuge, preserve, sanctuary, green or wildlife area owned by the
state, a political subdivision of the state or a nonprofit land conservation
organization and ‘encroach’ means to conduct an activity that causes damage
or alteration to the land or vegetation or other features thereon, including,
but not limited to, erecting buildings or other structures, constructing roads,
driveways or trails, destroying or moving stone walls, cutting trees or other
vegetation, removing boundary markers, installing lawns or utilities, or using,
storing, or depositing vehicles, materials or debris.
‘‘(b) No person may encroach or cause another person to encroach on
open space land or on any land for which the state, a political subdivision of
the state or a nonprofit land conservation organization holds a conservation
easement interest, without the permission of the owner of such open space
land or holder of such conservation easement or without other legal authori-
zation.
‘‘(c) Any owner of open space land or holder of a conservation easement
subject to the provisions of subsection (b) of this section or the Attorney
General may bring an action in the superior court for the judicial district
where the land is located against any person who violates the provisions
of said subsection with respect to such owner’s land or land subject to such
conservation easement. The court shall order any person who violates the
provisions of subsection (b) of this section to restore the land to its condition
as it existed prior to such violation or shall award the landowner the costs
of such restoration, including reasonable management costs necessary to
achieve such restoration. In addition, the court may award reasonable attor-
ney’s fees and costs and such injunctive or equitable relief as the court
deems appropriate.
‘‘(d) In addition to any damages and relief ordered pursuant to subsection
(c) of this section, the court may award damages of up to five times the
cost of restoration or statutory damages of up to five thousand dollars. In
determining the amount of the award, the court shall consider the willfulness
of the violation, the extent of damage done to natural resources, if any, the
appraised value of any trees or shrubs cut, damaged, or carried away as
determined in accordance with the latest revision of The Guide for Plant
Appraisal, as published by the International Society of Arboriculture, Urbana,
Illinois, or a succeeding publisher, any economic gain realized by the violator
and any other relevant factors.’’
7
To the contrary, the consent order requires BNE to have a new survey
completed, establish a new boundary line, submit an invasive species moni-
toring and control plan through 2016, conduct an environmental research
plan on the state parcel, and pay $10,000 for a supplemental environmental
research project.
8
The commissioner cited § 52-560a, as well as § 22a-6, as authority in the
consent order. The commissioner acknowledges that § 52-560a does not
authorize him to enter into a consent order, notwithstanding his reference
to the statute. Nevertheless, standing is not conferred under CEPA as a
result of a technical error. See Fort Trumbull Conservancy, LLC v. New
London, 282 Conn. 791, 808, 925 A.2d 292 (2007) (‘‘the mere allegation
that a defendant has failed to comply with certain technical or procedural
requirements of a statute imposing environmental standards does not, in
and of itself, give rise to a colorable claim of unreasonable pollution under
the act’’); Connecticut Coalition Against Millstone v. Rocque, supra, 267
Conn. 141 n.21 (‘‘Here, the claim of unreasonable pollution is based on
allegations that Millstone is operating without a valid permit and emergency
authorization, a claim of improper conduct under the licensing statutes that
does not directly threaten the environment. The alleged improprieties in
the present case were, therefore, not the type of conduct that we were
contemplating when we decided Waterbury [v. Washington, 260 Conn. 506,
560, 800 A.2d 1102 (2002)].’’); see also Lewis v. Planning & Zoning Commis-
sion, 275 Conn. 383, 393–94, 880 A.2d 865 (2005) (holding that plaintiff had
no standing to challenge alleged flawed inland wetlands permit under § 22a-
16 because claim of unreasonable pollution was predicated entirely on defect
in permitting process and because no allegation sufficiently independent of
permitting claim).
9
The plaintiff argues that the statute was passed in 2006 in response to
Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 149–50, 881 A.2d 937
(2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).
In Ventres, the court concluded ‘‘that the court was not required to create
and impose on the airport defendants a plan of its own to restore the land
to its condition prior to the violation. Nor was it required to issue a general
order to the airport defendants that they restore the land to its prior condi-
tion, which almost certainly would have led to additional litigation.’’ Id.
10
‘‘The process of statutory interpretation involves the determination of
the meaning of the statutory language as applied to the facts of the case,
including the question of whether the language does so apply. . . . When
construing a statute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the question of whether the
language actually does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the text of the statute
itself and its relationship to other statutes. If, after examining such text
and considering such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be considered. . . . The
test to determine ambiguity is whether the statute, when read in context, is
susceptible to more than one reasonable interpretation.’’ (Internal quotation
marks omitted.) Buttermilk Farms, LLC v. Planning & Zoning Commis-
sion, 292 Conn. 317, 328, 973 A.2d 64 (2009).
11
General Statutes § 26-303 ‘‘declares it is a policy of the state to conserve,
protect, restore and enhance any endangered or threatened species and
essential habitat.’’
12
In 16 U.S.C. § 6101, Congress found ‘‘that—(1) of the nearly 800 bird
species known to occur in the United States, approximately 500 migrate
among countries, and the large majority of those species, the neotropical
migrants, winter in Latin America and the Caribbean but breed in Canada
and the United States;
‘‘(2) neotropical migratory bird species provide invaluable environmental,
economic, recreational, and aesthetic benefits to the United States, as well
as to the Western Hemisphere;
‘‘(3) (A) many neotropical migratory bird populations, once considered
common, are in decline, and some have declined to the point that their long-
term survival in the wild is in jeopardy; and
‘‘(B) the primary reason for the decline in the populations of those species
is habitat loss and degradation (including pollution and contamination)
across the species’ range; and
‘‘(4) (A) because neotropical migratory birds range across numerous inter-
national borders each year, their conservation requires the commitment and
effort of all countries along their migration routes; and
‘‘(B) although numerous initiatives exist to conserve migratory birds and
their habitat, those initiatives can be significantly strengthened and enhanced
by increased coordination.’’
13
Congress provides in 16 U.S.C. § 668 (b), in relevant part, for civil
penalties for ‘‘[w]hoever, within the United States or any place subject to
the jurisdiction thereof, without being permitted to do so as provided in
this [Act] [16 U.S.C. §§ 668 through 668d], shall take, possess, sell, purchase,
barter, offer to sell, purchase or barter, transport, export or import, at any
time or in any manner, any bald eagle, commonly known as the American
eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof
of the foregoing eagles, or whoever violates any permit or regulation issued
pursuant to this [Act] [16 U.S.C. §§ 668 through 668d], may be assessed
a civil penalty by the Secretary of not more than $ 5,000 for each such
violation. . . .’’
14
Inasmuch as the plaintiff may be trying to imply violation of the endan-
gered species act, General Statutes §§ 26-310 (a) and (b), in relevant part,
provide that ‘‘[e]ach state agency, in consultation with the commissioner,
shall conserve endangered and threatened species and their essential habi-
tats, and shall ensure that any action authorized, funded or performed by
such agency does not threaten the continued existence of any endangered
or threatened species or result in the destruction or adverse modification
of habitat designated as essential to such species, unless such agency has
been granted an exemption as provided in subsection (c) of this section’’;
General Statutes § 26-310 (a); and that ‘‘[e]ach state agency responsible for
the primary recommendation or initiation of actions on land or in aquatic
habitats which may significantly affect the environment, as defined in section
22a-1c, shall ensure that such actions are consistent with the provisions of
sections 26-303 to 26-312, inclusive, and shall take all reasonable measures
to mitigate any adverse impacts of such actions on endangered or threatened
species or essential habitat . . . .’’ General Statutes § 26-310 (b). According
to § 26-310 (c) and (d), the secretary of the office of policy and management
and the commissioner would review the environmental impact in determin-
ing violations and exemptions. Nevertheless, in the present case, the defen-
dants did not take action or permit it and any alleged violation of the
endangered species act is tenuous at best.
15
General Statutes § 22a-5a provides: ‘‘Except as otherwise provided,
whenever any section in this title authorizes the commissioner to order a
person to abate, correct or remedy any violation, condition, pollution or
potential source of pollution, such order may require investigation, study,
data gathering or monitoring as the commissioner deems appropriate to
assure that the violation, condition or pollution is abated, corrected or
remedied.’’
16
It is noted that if the commissioner could only refer the matter to the
attorney general who, in turn, decided to bring a suit, the court would
then need to hear evidence, presumably from the commissioner, on the
appropriate remedy for restoration.
17
Of course, ‘‘[i]t is well established that an administrative agency pos-
sesses no inherent power. Its authority is found in a legislative grant, beyond
the terms and necessary implications of which it cannot lawfully function.’’
(Internal quotation marks omitted.) Nizzardo v. State Traffic Commission,
supra, 259 Conn. 155 (discussing jurisdictional limits of administrative agen-
cies and Connecticut Fund for the Environment v. Stamford, 192 Conn.
247, 470 A.2d 1214 [1984]). Nevertheless, ‘‘we are guided by the principle
that the legislature is always presumed to have created a harmonious and
consistent body of law . . . . Legislation never is written on a clean slate,
nor is it ever read in isolation or applied in a vacuum. Every new act takes
its place as a component of an extensive and elaborate system of written
laws. . . . Construing statutes by reference to others advances [the values
of harmony and consistency within the law]. In fact, courts have been
said to be under a duty to construe statutes harmoniously where that can
reasonably be done. . . . Accordingly, [i]f two statutes appear to be in
conflict but can be construed as consistent with each other, then the court
should give effect to both. . . . Therefore, [w]e must, if possible, read the
two statutes together and construe each to leave room for the meaningful
operation of the other.’’ (Citations omitted; internal quotation marks omit-
ted.) Nizzardo v. State Traffic Commission, supra, 157.