Better Equipping the Environmental Protection Act to Conserve Connecticut's Natural Resources
| Pages | 332 |
| Publication year | 2021 |
69 CBJ 332. Better Equipping the Environmental Protection Act to Conserve Connecticut's Natural Resources
The Connecticut Environmental Protection Act (CEPA) (fn1) functions as acomprehensive land-use regulation, protecting the natural resources of Connecticut. It mandates that state agencies follow specific rules when they review public and private land-use projects that might injure the environment. The Act also contains citizen suit provisions for the purpose of expanding its enforcement.
Despite its comprehensive structure, CEPA leaves gaps in Connecticut land-use regulation that permit projects that are not environmentally sound to go forward. CEPA: standing and environmental impact statement (EIS) provisions are the source of these gaps. This Article examines these provisions by comparing them with the New York State Environmental Quality Review Act's (SEQRA) (fn2) EIS provisions and the New York courts' approach to standing in SEQRA cases. The author concludes that CEPA would provide Connecticut's natural resources better protection if the Connecticut Legislature were to amend CEPA to includes SEQRA's more rigorous EIS provisions and to require Connecticut courts hearing cases brought under CEPA to adopt the New York courts' less restrictive approach to standing taken in SEQRA cases. Using SEQRA's EIS provisions, Connecticut land-use regulation would benefit from amore integrative and holistic approach to land-use planning and less restrictive standing requirements which would ensure that citizens have the opportunity to help the State stop environmentally harmful projects room proceeding without adequate mitigation or alteration. Significantly, the CEPA/SEQRA comparison suggests that adopting those aspects of New York law would not prove fatal to Connecticut's economic develop ment. The Article addresses arguments that opponents to such amendments might raise.
Government officials have numerous opportunities to wield immense discretion in applying land-use controls through an increasing number of administrative rules, regulations, and statutes. (fn3) Despite the fact that courts are ultimately the final arbiter of development proposals, the decrees of government officials more directly affect the typical project applicant and environmentalist on a daily basis than does the judicial system. (fn4) Therefore, when government officials exercise more and more discretionary power, citizens, particularly those affected by development regulations, get anxious.
In the past, government officials made land-use decisions without accounting for environmental impacts. (fn5) But the growth of administrative law, the "birth" of environmental awareness, and Congress' recognition that agency approvals of development proposals have the capacity to affect the environment negatively (fn6) compelled federal legislators to enact the National Environmental Policy Act (NEPA). (fn7) NEPA, with the U.S. Supreme Court's assistance, induced federal courts to recognize a cause of action based on environmental harm. In this way NEPA liberalized the standing requirements,' opening the federal courts to judicial review of public interest allegations" and thereby making it easier
for citizens to make certain that the public's natural resources are protected from discretionary agency actions.
States have followed Congress' lead, enacting their own versions of NEPA. (fn10) The Connecticut Legislature enacted CEPA (fn11) in 1971 to enable citizens to safeguard environmental interests from private development projects or government actions that might "in any way foul the environment." (fn12)
A. Standing
1. Standing under CEPA
CEPA authorizes public involvement in the decision-making process, empowering individuals and public-action groups to bring judicial challenges (fn13) or seek administrative review (fn14) of state agency or private-party decisions that violate the public trust. (fn15) CEPA establishes a public trust in the "air, water an other natural resources of the state," (fn16) and establishes a means for citizens to be the impetus behind environmental law enforcement. It allows plaintiffs to claim a breach of their right to environmental quality in a fashion analogous to the way one has always been able to assert violation of a contract or property right. (fn17)
Two provisions of CEPA confer standing. Section 22a-16authorizes an action for declaratory and equitable relief from
unreasonable pollution, impairment, or destruction. (fn18) Section 22a16 permits intervention in administrative proceedings or judicial review of decisions that entail action like likely town reasonably pollute, impair, or destroy the public trust in the air, water, or other natural resources. (fn19)These two provisions have been at the core of CEPA actions in at least 20 rulings for which opinions have been issued. (fn20) These cases suggest that courts generally accept CEPA!s grant of standing to citizens. The Connecticut courts currently accord standing under CEPA to any person who avers unreasonable pollution of a natural resource. (fn21) CEPAs citizen suit provisions have permitted actions regarding pollution or devastation of a public water supply,(fn22) the air in general, (fn23) and wetlands and waters. (fn24)
But standing for the purpose of judicial or administrative review of any environmentally related issue only appears to be easily attainable. Court opinions have rendered CEPA more of a symbol and less of a tool for the implementation of public environmental values by foreclosing the ability of plaintiffs or intervenors to challenge many issues relevant to environmental protection. (fn25) A plaintiff's standing in court under §22a-16 has been confined to alleging "environmental" issues. (fn26) Courts have rigorously followed this interpretation. Thus, a plaintiff may raise environmental issues, but only purely environmental issues. A plaintiff may not raise purely economic, social, or socio-economic
issues, even if they are logically or even factually linked to, or may significantly Affect, the dispute's environmental issues. (fn27)
An intervenor in an agency review procedure is similarly limited under §22a-19. (fn28)Further, the intervenor may dispute only those interests previously raised in the proceeding, (fn29)and the interests must be within t e jurisdictional purview of the agency into whose proceeding the intervenor is entering. (fn30) This means, for example, that an intervenor may not raise an air pollution issue before an inland wetlands agency (fn31) Such a restriction might seem logical because while an air pollution agency employs expertise at handling air pollution control issues, that expertise does not translate into expertise about other environmental issues, such as those concerning wetlands.
This reasoning, however, strongly supports strict demarcation of the issues an agency's both willing and able to confront. The problem is that strict demarcation ignores the more important concern and overriding purpose of CEPA-protection of the public trust. (fn32)Environmental issues do not know strict boundaries. Greater scientific understanding of the fate and transport of cross-media pollutants and their interaction with various media indicates that agencies must entertain the totality of these issues. Wetlands issues and air pollution issues may well be linked, depending on the particular circumstances of the project in question. The problem is clearly that although an activity is determined not to be harmful to a segment of the environment that is within one agency's protective jurisdiction, it might still pose a danger to another portion of the public trust that remains unprotected from that activity. This is a critical limitation that raises
serious concerns about the level of protection actually afforded Connecticut's natural resources. (fn33)
2. Standing under SEQRA
The approach that New York courts apply to standing in SEQRA cases solves these problems, and hence, SEQRA is an attractive instrument for parties seeking to thwart or retard government or private action that will cause them or the environment harm. (fn34) SEQRA sets forth exacting procedural and substantive obligations for agency decision-makers. (fn35)Violation of these obligations gives rise to actions seeking the rescission of agency determinations. Unlike CEPAs automatic grant of standing, however, a New York environmental plaintiff pressing a SEQRA challenge of agency action must establish an "injury-impact" and that "The interest asserted is arguably within the zone of interest to be protected by the statute" in question. (fn36) Thus standing under SEQRA hinges on whether the claims and SEQRA's purpose and intent are consistent.
SEQRA's goal is "the preservation and enhancement of the quality of the environment."(fn37) The Act's definition of "environment" has come to embrace criteria of environmental significance regarding certain socio-economic factors, as well as purely economic concerns.(fn38) Thus, plaintiffs or intervenors can gain
standing under SEQRA based on injury to any environmental, economic, or socio-economic concern, so long as the concern is related to damage to, or alteration of, the environment's natural resources.
3. Summary
CEPA created a cause of action for environmental issues never before litigated in Connecticut courts. The Act's opponents feared CEPA would bring an onslaught of litigation that would fill the courts and would blackmail businesses. (fn39) They openly claimed that citizens would file claims...
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