Innocent Owner Liability for Environmental Contamination Under Connecticut Law
| Pages | 398 |
| Publication year | 2021 |
69 CBJ 398. Innocent Owner Liability for Environmental Contamination Under Connecticut Law
Environmental laws are often enacted with the promise that the polluter, not the taxpayer, will pay for a cleanup. (fn1) In fact, many environmental laws sever the connection between liability and causation, often leaving otherwise innocent persons liable for contamination cleanup. (fn2) Often, it appears that the tie between culpability and liability is broken in favor of administrative and legislative convenience.(fn3)
The Connecticut Supreme Court and the Connecticut legislature recently took up the issue of an innocent's liability for environmental contamination. (fn4) The Connecticut Supreme Court, in a case titled Starr v. Department of Environmental Protection, (fn5) overruled a Superior Court opinion and held an innocent owner of contaminated property liable for remediation costs. The Connecticut legislature passed P.A. 93-375, titled "An Act Establishing An Innocent Landowner Defense In Pollution Cases," in an effort to protect innocent owners. (fn6)
This article analyzes Starr and explores the provisions of P.A. 93-375. It concludes that the Superior Court's opinion should have been upheld. (fn7) It also concludes that P.A. 93-375 provides limited shelter at best.
The majority decision in Starr contains 30 footnotes and an erudite discussion of the law of nuisance, and plums a 25 year old legislative history for guidance. Yet, at bottom, the majority's decision in Starr turns not on the law, nor on notions of fairness. (fn8) Instead, it turns upon the administrative convenience of the state Department of Environmental Protection ("DEP").
A. Appeal Background
Susan S. Starr ("Starr") owned approximately 44 acres of land in Enfield, Connecticut. (fn9) Starr inherited the land from her husband in 1987. (fn10) Twenty or more years before, a trucking company had dumped toxic waste generated by Massachusetts gas producing companies on a portion of the "acre parcel. (fn11) There was no evidence that Starr, or her husband, knew, or could have known, that the property was contaminated. (fn12)
The contamination was discovered in the summer of 1989. (fn13) Prior to this time, she had no access to the property. (fn14) In July Of 1990, DEP ordered Starr to begin a cleanup. (fn15)
1. The Administrative Decision
Starr appealed the enforcement order. DEP's administrative law judge held that the enforcement order was authorized both by CONN. GEN. STAT. § 22a-432 and by CONN. GEN. STAT. § 22a433. According to the adjudicator, culpability was not relevant in assessing responsibility for the cleanup. (fn16)
In addition, the adjudicator concluded that § 22a-433 must be interpreted to permit the DEP to hold "innocent" owners liable for pollution without first issuing an enforcement order to the person actually responsible, because otherwise the DEP would be powerless to accomplish a cleanup when the culpable person cannot be found or is unknown. (fn17) The adjudicator further held that the DEP "is not bound to seek out each and every potentially liable person." (fn18)
2. The Superior Court Decision
Starr appealed. Superior Court judge Maloney held that Starr was a passive, innocent owner. As a result, she could not be liable either under CONN. GEN. STAT. § 22a-432 or under CONN. GEN. STAT. § 22a-433.
In its decision, the court examined CONN. GEN. STAT. § 22a432 to § 22a-452c (the "act"). (fn19) Noting that the statutory sections of the act fit together "somewhat awkwardly," (fn20) the court took issue with the adjudicator's opinion that CONN. GEN. STAT. § 22a432 and § 22a-433 separately provided a basis for holding Starr liable. As for § 22a-432, the court stated:
The statute covers the situation where [DEP] has first ordered someone other than the owner to abate pollution based on that person's actual culpability under another statute. In this case, however, [DEP] never issued an order to anyone else, so there was no one with whom the plaintiff could be held jointly and severally liable ... By its explicit terms, the statute cannot be employed to confer liability on a non-culpable property owner alone. The [DEP's] interpretation is undeniably more convenient for the DEP but it creates a much more onerous burden .... than the statute contemplates. (fn21)
The court further held that interpretation Of CONN. GEN. STAT. § 22a-433 turned upon the definition of the word maintaining." In ruling for the plaintiff, the court held that "all ... dictionary definitions of 'maintain' include the concept of some positive conduct or effort designed to preserve an existing condition." (fn22) As all the evidence indicated that Starr's ownership was passive, the court held that she was not "maintaining any facility or condition which ... created a source of pollution" on the property. (fn23) Rejecting DEP's contention that the court had to give special deference to the administrative agency's interpretation of the statutes, the court found for Starr. (fn24)
B. The Supreme Coures Decision
On appeal, the state Supreme Court overruled the trial court, and made Starr liable. According to the court, the trial court (1) failed to give due deference to the agency's interpretation of the statute; (2) slighted the legislative history Of CONN. GEN. STAT. § 22a-432; and (3) misconstrued CONN. GEN. STAT. § 22a-432 and 21 22a-433's relationship to the overall scheme of the act. (fn25)
1. The Supreme Court's Rationale
According to the court, the critical issue in the case was whether the statutory term "maintaining a condition" encompassed the passive ownership of contaminated property. (fn26) In finding for DEP, the court adopted a logical syllogism providing:
1. The term "maintaining" was ambiguous; (fn27)
2. Because of this ambiguity, the trial court erred in failing to accord due deference to the administrative agency's interpretation of the statute; (fn28)
3. Also, the court could seek guidance from the legislative history which, in turn, provided a basis for concluding that the legislature intended "maintaining" to be read to include landowners who failed to abate pollution existing on the landowner's property regardless of blame for creation of the condition; (fn29)
4. Furthermore, the legislature intended to codify the common law of public nuisance into the statutory scheme, and under the common law, a person could be liable for a contaminated condition on that person's land; (fn30) therefore
5. Starr was liable.
In justifying its decision, the court pointed out the "emphasis on clean water over possible individual hardship is manifested in the act's declaration .... that water pollution is a public nuisance." (fn31)
2. DEP's Convenience Outweighed Fundamental Fairness
Although the court's opinion contained a lengthy exploration of the legislative history, fundamentally this exploration was a device to justify the court's deference to DEP's administrative interpretation and practice. (fn32) In Starr, however, such deference was unwarranted. First, as the Superior Court pointed out, act structure cut against DEP's interpretation. (fn33) Second, DEP never provided a compelling rationale for its interpretation of the statute. DEP's decision, at bottom, was a function only of administrative convenience. (fn34)
Thus, in Starr, the Court was choosing between what the majority termed "a draconian result that violates notions of fairness", (fn35) and administrative convenience. Inexplicably, the balance was tipped toward administrative convenience. (fn36) As a result, the court upset existing precedent, and recalibrated the balance between the courts and the executive branches of government. (fn37)
C. An Evaluation Of Starr
Had Starr been decided on accepted principles of federal law, then the Superior Court decision would have been affirmed. (fn38) Starr I, although decided entirely on state law grounds, tracked federal innocent owner statutory and case law. (fn39) It tracked federal law because judge Maloney attempted to incorporate fundamental notions of fairness into the analysis. Therefore, that Starr acquired the contaminated property by bequest, that she was a "passive" owner, and that she bad no reason to suspect that the property was contaminated at the time of the bequest, all became salient to the analysis. (fn40) Under federal law as well, these facts would have entitled Starr to innocent owner protection. (fn41)
In Starr H, however, efficiency, not fairness, appears to have been the pivotal factor. (fn42) This would explain the court's precedent breaking assertion that in the face of "two equally plausible interpretations of the statutory language" of an untested statute, the administrative agency's interpretation of the statute had to be given "due deference." (fn43) Such a focus would also explain the court's rather terse conclusion to its opinion in which it states "If the result is unduly harsh, the remedy properly lies with the legislature and not this court." (fn44)
Starr I compares favorably with Starr II. Starr I is a well reasoned opinion, one that seems faithful to legislative intent and statutory language. By contrast, Starr II altered the balance between administrative agencies and the judicial branch of government, and produced what the court itself called a draconian result. Given the fundamental integrity of the Superior Court decision, as well as the compatibility of that decision with existing federal law, Starr I should have been affirmed.
As Starr worked its way through the courts, the Connecticut legislature drafted and then passed P.A. 93-375, titled "An Act Establishing An Innocent Landowner Defense In Pollution Cases" (hereafter "P.A. 375"). P.A. 375...
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