324 Conn. 362
Conn.2016Background
- In 2013 Connecticut DEEP issued a Comprehensive Energy Strategy recommending significant expansion of natural gas (pipeline capacity, ~900 miles of mains, regulatory changes, incentives).
- Legislature enacted § 16-19ww in 2013 adopting those recommendations; local gas companies then submitted a Joint Natural Gas Infrastructure Expansion Plan to DEEP and PURA.
- DEEP found the plan generally consistent with the Strategy; PURA conducted a contested proceeding and approved the plan without requiring an environmental impact evaluation under the Connecticut Environmental Policy Act (CEPA), Gen. Stat. § 22a-1 et seq.
- Connecticut Energy Marketers Association sued under § 22a-16, alleging DEEP and PURA violated CEPA by failing to prepare a written environmental impact evaluation under § 22a-1b(c) for actions "which may significantly affect the environment."
- Trial court dismissed the complaint (treating it as barred by sovereign immunity) after concluding the defendants did not undertake or fund the activities at issue; the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEEP/PURA approval of the Strategy/expansion plan constituted an "action which may significantly affect the environment" under § 22a-1c and thus triggered § 22a-1b(c) evaluation requirement | Agency "initiation" or "proposal" of activities that will be carried out by private entities triggers CEPA; regs define "action" to include activities an agency initiates or proposes | CEPA applies only to activities proposed to be undertaken by state agencies or funded by the state; here private utilities will undertake and fund construction, so no CEPA duty | Court held CEPA applies only where the activities will be undertaken by (or funded in whole/part by) the state; DEEP/PURA’s role in proposing/approving private companies’ plan did not trigger § 22a-1b(c) duty |
| Effect of agency regulations (Regs., Conn. State Agencies § 22a-1a-1(2)) that define "action" broadly | Regs show an "action" includes agency-initiated or proposed activities even if performed by private actors, so DEEP/PURA were required to prepare an evaluation | The regulation cannot be read to expand the statute; the statutory phrase "proposed to be undertaken by" requires the activity ultimately be undertaken by the state (or funded by it) | Court held the regulation cannot be read to broaden the statute; examples in the regulation concern state-funded or state-performed actions |
| Whether CEPA should be construed like NEPA so agency approvals of private-party activities trigger review | CEPA modeled on NEPA; NEPA treats federal approvals/permits as "federal actions" requiring review | CEPA’s text differs from NEPA; legislature could have adopted NEPA’s broader definition but did not | Court declined to import NEPA’s broader scope; CEPA’s language is narrower than NEPA |
| Whether the complaint was properly dismissed vs. stricken and whether sovereign immunity barred suit | Plaintiff argued merits; sought CEPA relief (declaratory/injunctive) under § 22a-16 | Defendants moved to dismiss asserting lack of subject-matter jurisdiction (sovereign immunity) because CEPA did not apply | Majority affirmed dismissal on jurisdictional ground after finding CEPA inapplicable; dissent would have treated motions as motion to strike and remanded to consider merits |
Key Cases Cited
- Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797 (Conn. 2014) (standard for reviewing statutory interpretation of agency actions)
- Longley v. State Employees Retirement Commission, 284 Conn. 149 (Conn. 2007) (when to defer to an agency's statutory interpretation)
- Manchester Environmental Coalition v. Stockton, 184 Conn. 51 (Conn. 1981) (CEPA modeled on NEPA and environmental impact statement requirements)
- Stotler v. Dept. of Transportation, 313 Conn. 158 (Conn. 2014) (dismissal vs. strike where sovereign immunity bars claim)