129 Conn. App. 203
Conn. App. Ct.2011Background
- Plaintiff Nancy Burton, pro se, sues Dominion Nuclear Connecticut, Inc. for declaratory and injunctive relief alleging Millstone’s cooling water withdrawals constitute unreasonable pollution and destruction of natural resources under the Environmental Protection Act (Conn. Gen. Stat. § 22a-16 et seq.).
- The Department of Environmental Protection (DEEP) grants permits; Millstone’s permit renewal was pending from 1997 until August 2010, with a new permit issued September 1, 2010.
- The trial court dismissed Burton’s action for lack of standing under § 22a-16, finding the dispute fell within the DEEP permitting process under § 22a-430 and that § 22a-16 does not create standing for permit-related challenges.
- Burton appealed; the Commissioner of Environmental Protection intervened as a party, and the action involved ongoing permit proceedings and a related administrative process.
- The appellate court affirmed, holding Burton lacked statutory standing under § 22a-16 because the issue concerns conduct governed by the permit process and does not allege conduct beyond the permit, and proper appellate analysis of remaining issues followed.
- A final permit was issued in 2010, and Burton appealed that decision as well.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burton has statutory standing under § 22a-16 to challenge Millstone | Burton alleges unreasonable pollution harming natural resources | Millstone’s operations are governed by DEEP permitting under § 22a-430 | No standing; the claim is within the permitting framework and § 22a-16 does not authorize direct Superior Court review of permit-harm claims. |
| Whether the court improperly denied Burton the opportunity to present witnesses on standing | Witnesses could address standing under § 22a-16 | Witness testimony would address merits, not standing; not relevant to the issue | No error; testimony not capable of establishing standing given the permit-based regime. |
| Whether the claim is barred because Millstone’s conduct is regulated by the DEEP permit under § 22a-430 | Activity constitutes unlawful pollution overriding the permit | Activity falls within the permit terms and DEEP regulatory scheme | Barred from § 22a-16 action directly in Superior Court when the core claim is a permitting issue. |
| Whether ongoing administrative proceedings or exhaustion affect the action | Administrative process should not bar judicial review | Permitting process governs and precludes § 22a-16 action in Superior Court | Court reasoned that the core standing analysis governs; other doctrines (e.g., prior pending action) not fatal to dismissal given lack of standing. |
Key Cases Cited
- Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 970 A.2d 640 (2009) (2009) (-explains statutory standing under § 22a-16 and aggrievement waiver)
- Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 836 A.2d 414 (2003) (2003) (permitting claims fall outside § 22a-16 standing; permit context matters)
- Papic v. Burke, 113 Conn.App. 198, 965 A.2d 633 (2009) (2009) (courts may take judicial notice of Superior Court files; relevance to review)