The Connecticut Environmental Protection Act ("cepa") Enabling Citizens to Speak for the Environment
| Pages | 353 |
| Publication year | 2021 |
70 CBJ 353. The Connecticut Environmental Protection Act ("CEPA") Enabling Citizens to Speak For the Environment
"Mister" he said with a sawdusty sneeze, "I am the Lorax. I speak for the trees. I speak for the trees, for the trees have no tongues."
The Lorax (fn1)
by Dr. Seuss
The Connecticut Environmental Protection Act of 1971, Connecticut General Statutes ("Conn. Gen. Stat.") § 22a-14 to 22a-20 (the "Act" or "CEPA"), (fn2) serves a function much like Dr. Seuss's Lorax, who spoke for the Truffula trees, the Brown Barba loots, the Humming-fish, the Swomee-Swans and the earth,
water and air where they lived. CEPA provides a voice for the natural resources of the state by granting parties standing in administrative and Judicial proceedings to protect the interests of the state and the public in the environment. In other words, CEPA allows parties to act as private attorneys general. As such, CEPA expands "the number of potential guardians of the public interest in the environment into the millions, instead of relying exclusively on the limited resources of a particular agency." Greenwich v Connecticut Transportation Authority, 166 Conn. 337, 343, 348 A.2d 596 (1974)
As set forth in Conn. Gen. Stat. § 22a-15, the purpose of the At is to "provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction." The Act provides that:
In any administrative, licensing or other proceeding, and in any Judicial review thereof made available by law, the attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for Judicial review involves 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.
Conn. Gen. Stat. § 22a-19(a) (emphasis supplied).
The Act requires an administrative agency or a court to consider alternatives to activities that cause unreasonable pollution of the air, water and other natural resources. The agency or court may not authorize the activity which will create the unreasonable pollution if it finds that feasible and prudent alternatives exist:
In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which
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does, or is reasonably likely to have such effect so long as considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare
Conn. Gen. Stat. § 22a-19(b).
The Act also provides for declaratory and equitable relief under Conn. Gen. Stat. § 22a-16, which may serve the purposes of persons who either decline (fn3) or are unable (fn4) to intervene under § 22a- 19. Section 22a- 16 authorizes any person to "maintain an action ... for declaratory and equitable relief... for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction..." In order to obtain relief under this statute, a person would assert that certain conduct has or is reasonably likely to cause unreasonable pollution and would request the equitable relief of an injunction to prohibit or terminate such conduct.
Therefore, the CEPA statutory scheme provides two avenues by which a person concerned about environmental impacts of certain conduct may bring these concerns to the attention of either the administrative agency responsible for approving such conduct or a court. But to what resources does CEPA apply? What does it allow a party to do? What are its limitations? The purpose of this article is to review and analyze CEPA case law in order to understand how this law functions in practice.(fn5)
I. FOR WHOM (OR WHAT) DOES CEPA SPEAK?
Section 22a-15 of CEPA explains that the Act's purpose is to protect the "air, water and other natural resources" from "unreasonable pollution." Air and water are relatively clear concepts. However, the phrase "other natural resources" is not so clear and is not defined in CEPA. The question as to what qualifies as 11 other natural resources" has been addressed by both the Connecticut Appellate Court and the Connecticut Supreme Court.
A. Prime Agricultural Land - Natural Resources v. Private Property Rights
In Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 563 A.2d 1339 (1989), the Connecticut Su
preme Court held that "other natural resources" does not include prime agricultural land. In reaching this conclusion, the Court reviewed the legislative history of the Act and found that it did not indicate any intent of the legislature to include prime agricultural land within "other natural resources." Id. at 734. The Court found several factors to be significant: 1) the legislature failed to mention agricultural land anywhere in CEPA; 2) where the legislature has chosen to protect agricultural land in other statutes, it has done so expressly, Id. at 736; and 3) if it interpreted 'other natural resources" to include agricultural land, it could "potentially be requiring the consideration of alternatives pursuant to § 22a-19(b) for every subdivision application in the state," especially since the only existing statutory definitions of agricultural land are so broad as to include almost any land. Id. at 738- 39. The Court also noted that air and water are natural resources which are generally not owned by anyone whereas land is usually privately owned. It reasoned that "if the legislature had intended to make the inroads on private property rights advocated by the plaintiffs ... it would have done so with particularity. " Id. at 736 n. 9.
B. Trees and Wildlife - Economic Value off natural Resources
In Paige v. Town Plan & Zoning Commission, 35 Conn. App. 646, 646 A.2d 277 (1994), rev'd, 235 Conn. 448, 668 A.2d 340
(1995), the Connecticut Appellate Court considered the issue of whether "other natural resources includes trees and wildlife. The trial court had found that the phrase only includes trees and wildlife that have economic value. After reviewing relevant statutes and regulations, the Paige court concluded that the language of § 22a-1-1 of the Regulations of Connecticut State Agencies ("Conn. Agencies Regs.") and Conn. Gen. Stat. § 22a-6a(a) indicated that the legislature had intended some trees and wildlife to fall within the term "natural resources." (fn6) 35 Conn. App. at 650-51. However, expressing a concern in line with that of the Connecticut Su
preme Court in Red Hill Coalition, the Appellate Court stated its belief that if the definition of natural resources included all trees and wildlife, every subdivision in the state could potentially be subject to consideration of alternatives pursuant to § 22a-19(b) of CEPA. Id. Since the Court felt that this would not be a reasonable result, it looked to Black's Law Dictionary for a definition of "natural resources" that might help to limit the application of the term. Black's defined "natural resources as economic value." Id. (citations omitted). Using this definition, the Court held that a determination of whether trees and wildlife constituted natural resources depended upon a factual determination of their economic value. Id. The Court further indicated that even if the trees or wildlife were endangered or rare, they would not be natural resources for purpose of CEPA unless they had economic value in tourism or research. Id. at 653.
Judge Schaller, dissenting, found that trees and wildlife do constitute "natural resources" protected by § 22a-19, and that therefore, the trial court should have searched the record of the Plan & Zoning Commission to determine whether a basis for its decision existed. id. at 465.
The Appellate Court's decision in Paige was appealed to the Connecticut Supreme Court. The sole issue on appeal was whether trees and wildlife, independent of whether they have economic value, fall within the term 'natural resources"' as used in CEPA. Paige v. Town Plan & Zoning Comm'n, 235 Conn. 448, 668 A.2d 340 (1995). Reversing the Appellate Court, the Supreme Court held that trees and wildlife do constitute "natural resources" under CEPA, regardless of their economic value. Id. The Court reached this conclusion after examining: 1) the policy expressed by the legislature in enacting CEPA; 2) use of the term "natural resources" in other Connecticut statutes; and 3) similar environmental protection acts passed by Congress and other state legislatures.
Regarding the legislative history, the Court found that the economic product value standard adopted by the Appellate Court was actually antithetical to the purposes expressed in the legislative history. Id. at 459. With respect to other statutory uses of the words "natural resources," the Court discussed both Conn. Gen. Stat. § 22a-6a(a) and § 22a-342 which enumerate natural resources to include plant, animal and aquatic life. 9fn7) In reviewing similar acts passed by Congress and other states, the Court looked at the federal...
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