Connecticut Coalition Against Millstone v. Rocque

• Decision Date: 23 December 2003
• Docket Number: (SC 16838).
• Citation: 836 A.2d 414,267 Conn. 116
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT COALITION AGAINST MILLSTONE ET AL. v. ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION, ET AL.

267 Conn. 116

836 A.2d 414

CONNECTICUT COALITION AGAINST MILLSTONE ET AL. v. ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION, ET AL.

(SC 16838).

Supreme Court of Connecticut.

Argued March 14, 2003.

Officially released December 23, 2003.

Borden, Norcott, Palmer, Zarella and Pellegrino, Js.

Nancy Burton, for the appellants (plaintiffs).

Mark P. Kindall, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (named defendant).

Linda L. Morkan, with whom, on the brief, were James P. Ray and Joey Lee Miranda, for the appellee (defendant Dominion Nuclear Connecticut, Inc.).

Elizabeth C. Barton, with whom, on the brief, were Harold M. Blinderman and Sharon M. Seligman, for the appellee (defendant Northeast Nuclear Energy Company).

Opinion

ZARELLA, J.

The principal issue in this appeal is whether the plaintiffs¹ have standing under General Statutes § 22a-16² to bring an action directly in the Superior Court against the defendants³ for declaratory and injunctive relief from alleged violations of the federal Clean Water Act, 33 U.S.C. § 1251 et seq. The plaintiffs claim that the operations of the Millstone Nuclear Power Generating Station (Millstone) have resulted in unreasonable pollution and should be halted because Millstone has been functioning for several years without a valid water discharge permit and emergency authorization. The trial court granted the defendants' motions to dismiss the plaintiffs' complaint on the ground that the plaintiffs lacked standing to bring their action directly in the Superior Court and rendered judgment thereon. The plaintiffs appealed from the judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. We affirm the judgment of the trial court.

The present action is one of several actions brought over the course of the last three years by organizations and individuals challenging the validity of water discharge authorizations issued by the state department of environmental protection (department) with respect to the operation of the Millstone facility in Waterford.⁴ Prior to the commencement of this action, Millstone was operated by the defendant Northeast Nuclear Energy Company (Northeast). The facility utilizes seawater from Niantic Bay to cool its three nuclear reactors and discharges the heated water containing radioactive and toxic wastes into Long Island Sound.

The operations of the facility require department approval in the form of a water discharge permit,⁵ which is valid for five years. The department last issued a discharge permit to Northeast on December 14, 1992, with an expiration date of December 13, 1997. Northeast submitted a timely permit renewal application on June 13, 1997.⁶ The application is still pending, but Millstone continues to operate pursuant to General Statutes § 4-182 (b), which provides in relevant part that "[w]hen a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall not expire until the application has been finally determined by the agency. . . ." Millstone also discharges into the public waters certain toxic substances that are not covered by the 1992 permit.⁷ On October 13, 2000, the department issued an emergency authorization pursuant to General Statutes § 22a-6k⁸ that covers the additional discharges. The emergency authorization provides that it will expire "upon a final determination on [Northeast's] application for reissuance of [its water permit] or upon the [commissioner of environmental protection's] determination that the requirements of Section 22a-6k of the Connecticut General Statutes are no longer applicable to the activities authorized."

In February, 2001, the defendant Dominion Nuclear Connecticut, Inc. (Dominion), in conjunction with its efforts to acquire the Millstone facility,⁹ applied to the department for the transfer of environmental permits issued to Northeast. On March 8, 2001, the plaintiffs commenced the present action in the judicial district of Hartford seeking: (1) a judgment declaring that the 1992 permit had expired, that the emergency authorization was invalid and that neither the permit nor the authorization could be transferred; (2) a temporary and permanent injunction to prevent the continued operation of the Millstone facility; and (3) a temporary and permanent injunction to prevent the named defendant, Arthur J. Rocque, Jr., commissioner of environmental protection (commissioner), from approving the transfer of the permit and emergency authorization from Northeast to Dominion. According to the plaintiffs, the purpose of the requested relief was to protect "the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction. . . ."

The plaintiffs' requests for relief were based in part on allegations that the permit renewal application was invalid because the three nuclear reactors were shut down at the time the application was filed. Consequently, the Millstone facility was not engaged in operations of a continuing nature as required for application approval under § 4-182 (b). The plaintiffs also alleged that the emergency authorization had been issued in violation of the letter and spirit of the law because its issuance presumed the validity of the underlying permit and it was one in a series of authorizations routinely issued to Northeast over a period of years without notice to the public and without public participation.¹⁰ On March 8, 2001, the plaintiffs also filed a separate application for a temporary injunction to enjoin the transfer of the permit and emergency authorization from Northeast to Dominion. Because of the imminent sale of Millstone to Dominion, the court ordered that a hearing be held prior to March 31, 2001, on the plaintiffs' application for a temporary injunction. On March 15, 2001, Northeast filed an application to transfer the case to the complex litigation docket in Norwich. The chief administrative judge of the civil division and presiding criminal judge for the judicial district of Hartford determined that the case should be transferred as requested, but scheduled the injunction hearing for March 27, 2001, in the judicial district of Hartford, as no judge was available in the Norwich court to hold the hearing prior to the end of March.

On March 29, 2001, following the hearing in Hartford, the court, Schuman, J., issued a written opinion denying the plaintiffs' application for a temporary injunction. That same day, the department approved the transfer of all environmental permits and emergency authorizations from Northeast to Dominion. On March 30, 2001, the plaintiffs petitioned this court, pursuant to General Statutes § 52-265a, for certification to take a direct appeal from the trial court's denial of the application for a temporary injunction. The petition was denied on April 3, 2001. Meanwhile, by order dated March 27, 2001, the case was transferred to the complex litigation docket in Norwich.¹¹ Four days later, Northeast closed on the anticipated sale of Millstone to Dominion. While those proceedings were pending, all three defendants filed motions to dismiss the case,¹² claiming that the plaintiffs lacked standing under § 22a-16¹³ of the Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq. (CEPA), and had failed to exhaust their administrative remedies. The Superior Court in the judicial district of Hartford heard arguments on the motions to dismiss as well as on the motion for a temporary injunction at the March 27, 2001 hearing. Thereafter, the court issued a briefing schedule on the motions to dismiss in a footnote to its written opinion denying the application for a temporary injunction. Both sides filed briefs during the first two weeks in April, 2001. After the case was transferred to the complex litigation docket in Norwich, the court held a two day evidentiary hearing on the motions to dismiss. On July 19, 2001, the court, Koletsky, J., granted the motions to dismiss in a ruling from the bench.

The court determined that the plaintiffs had "no standing to bring a § 22a-16 action to challenge either the transfer of the permit, the validity of the emergency authorization or the validity of the extension of the underlying 1992 permit with the expiration date of 1997," under the principles espoused in Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 21, 755 A.2d 860 (2000) (Fish II). The court explained: "[T]here is no question that [Fish II] requires the holding that the § 22a-16 action brought by the plaintiffs cannot be brought in an area expressly placed . . . within the exclusive domain of the commissioner. . . ." The court further explained: "With respect to the challenges to the validity of the 1992 permit and its extension and the emergency authorizations, the court finds and holds that the plaintiffs lack standing to bring a § 22a-16 action in this proceeding or in this area which is committed by the legislature to the exclusive domain of the . . . commissioner. . . . Contrary to the plaintiffs' argument, the statutory scheme is logical, straightforward and uncomplicated. Section 22a-16 actions are not available where the commissioner . . . has the responsibility to act. When the commissioner . . . acts, there is an administrative appeal from that. There is still, the court opines, no § 22a-16 action after action by the commissioner, should the commissioner issue a permit to Millstone. . . . [A]s I said before, standing is not there." After the court granted the motions to dismiss, it denied the plaintiffs' motion for reargument, and this appeal followed.

The plaintiffs claim on appeal that the court improperly...