161 Conn.App. 329
Conn. App. Ct.2015Background
- Dominion Nuclear applied to the Connecticut Siting Council (the council) to amend its Millstone spent-fuel dry storage facility permit in 2012 to modify infrastructure and install concrete pads to accommodate up to 135 storage modules; it did not seek authorization to install additional modules at that time.
- Nancy Burton intervened before the council under Conn. Gen. Stat. § 22a-19(a) (CEPA) and participated at hearing; the council approved the modifications, finding no significant environmental impacts and ordering a pad to accommodate 135 modules but not authorizing additional module installations.
- Burton appealed the council’s decision to the Superior Court, alleging the council acted arbitrarily and capriciously in nine respects (mostly procedural errors and claimed failures to consider environmental/health impacts).
- The Superior Court granted defendants’ motions to dismiss for lack of subject matter jurisdiction, concluding Burton lacked standing (no statutory aggrievement under CEPA and no classical aggrievement under UAPA); Burton appealed.
- The Appellate Court affirmed, holding Burton’s operative complaint failed to allege facts supporting a colorable claim of unreasonable pollution, impairment, or destruction of natural resources (required by § 22a-19), and contained only conclusory or procedural allegations and no claim of denial of fundamental fairness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burton had standing to maintain the administrative appeal | Burton argued her intervention under § 22a-19 and participation before the council conferred statutory standing to appeal | Defendants argued Burton failed to plead factual allegations showing probable environmental harm or deprivation of a fair hearing, so she lacked statutory aggrievement and therefore standing | Held: Burton lacked standing; complaint did not allege facts showing probable unreasonable pollution, impairment, or destruction of natural resources and did not allege denial of fundamental fairness |
| Whether Burton’s procedural/ bias claims sufficed for CEPA standing | Burton contended procedural errors and alleged council bias supported her challenge under CEPA | Defendants argued procedural/bias claims without factual allegations of environmental harm are insufficient for § 22a-19 standing | Held: Purely procedural or conclusory bias claims were insufficient to establish a colorable environmental claim under CEPA |
| Whether intervention status alone confers appellate standing | Burton claimed that being an intervenor before the council conferred automatic statutory standing on appeal | Defendants pointed to authority that intervenor status does not by itself establish aggrievement for appellate review | Held: Intervention does not automatically create standing; intervenor status alone is insufficient without pleaded facts of environmental harm or unfair hearing |
| Whether the Superior Court erred by not considering Burton’s original notice of intervention when ruling on the motion to dismiss | Burton argued the court should have considered her council-level notice of intervention along with the complaint | Defendants argued the Superior Court properly limited review to the operative complaint and materials of record when the motion to dismiss was decided | Held: The court properly relied on the operative complaint and record before it at the time of the jurisdictional motion; Burton failed to place the notice into the record or reference it in the complaint |
Key Cases Cited
- Lewis v. Slack, 110 Conn. App. 641 (Conn. App. 2008) (standing is required for subject matter jurisdiction)
- Sadloski v. Manchester, 228 Conn. 79 (Conn. 1993) (standing requires a real interest or legal right in controversy)
- McWeeny v. Hartford, 287 Conn. 56 (Conn. 2008) (distinguishing classical and statutory aggrievement)
- Finley v. Inland Wetlands Comm’n, 289 Conn. 12 (Conn. 2008) (§ 22a-19 requires a complaint to allege facts supporting a colorable claim of unreasonable pollution, impairment, or destruction)
- Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57 (Conn. 2008) (scope of council jurisdiction re: Millstone and prior appellate history)
- FairwindCT, Inc. v. Connecticut Siting Council, 313 Conn. 669 (Conn. 2014) (right to a fundamentally fair hearing is implicit in § 22a-19 intervention; narrow exception for fairness claims)
- Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542 (Conn. 2011) (intervenor standing and requirement to demonstrate aggrievement on review)
- Hartford Distributors, Inc. v. Liquor Control Comm’n, 177 Conn. 616 (Conn. 1979) (party or participant status alone does not constitute aggrievement)