Berkshire-Litchfield Envtl. Council, Inc. v. Esty

• Decision Date: 09 July 2014
• Docket Number: File No. LND CV-13-6041645-S
• Court: Connecticut Court of Appeals
• Parties: BERKSHIRE-LITCHFIELD ENVIRONMENTAL COUNCIL, INC. v. DANIEL ESTY ET AL.

BERKSHIRE-LITCHFIELD ENVIRONMENTAL COUNCIL, INC. v. DANIEL ESTY ET AL.^*

File No. LND CV-13-6041645-S

COURT OF APPEALS OF THE STATE OF CONNECTICUT

July 9, 2014

APPENDIX

Superior Court, Judicial District of Hartford

Proceedings

Memorandum of decision on defendants' motion to dismiss. Motion granted.

Nicholas J. Harding and Mary E. Mintel, for the plaintiff.

Kimberly P. Massicotte and Sharon M. Seligman, assistant attorneys general, for the defendants.

Opinion

BERGER, J.

I

On April 25, 2013, the plaintiff, Berkshire-Litchfield Environmental Council, Inc.,¹ commenced this suit against the defendants; Daniel Esty, the Commissioner of the Department of Energy and Environmental Protection (commissioner); the Department of Energy and Environmental Protection (department); Susan Whalen, the Deputy Commissioner of the Department; and George C. Jepsen, the Attorney General; pursuant to General Statutes § 22a-16 of the Connecticut Environmental Protection Act (CEPA).² In the plaintiff's amended complaint filed on June 28, 2013, the plaintiff alleges that BNE Energy, Inc. (BNE), entered the state of Connecticut's Canaan Mountain Wilderness Natural Area Preserve³ (the forest) on or about May 17, 2010, and clear-cut more than 332 trees on approximately 2.5 acres. On November 13, 2012, the commissioner entered into a consent order with BNE concerning remediation plans for the forest.⁴ The plaintiff seeks a declaratory judgment rendering the consent order void because it alleges that the commissioner had no general statutory authority, including that set forth in General Statutes § 22a-6 (a) (3),⁵ to enter into the consent order. In the alternative, the plaintiff seeks a declaratory ruling that the consent order must be revised to comply with General Statutes § 52-560a,⁶ which it alleges would require referral of the matter to the attorney general and restoration of the forest by BNE.

On December 26, 2013, the defendants moved to dismiss and to strike the action on grounds that the court lacks subject matter jurisdiction because the plaintiff has no standing to bring the suit, or that if it does have standing, the suit should be stricken because the plaintiff has failed to state a cause of action against the defendants under CEPA. The defendants argue that the plaintiff lacks standing to bring this suit under CEPA because (1) CEPA does not provide for suits against parties that did not cause or participate in causing environmental damage; (2) CEPA cannot be used to force a third party to take some action, in this case, to require that the commissioner or the attorney general file suit against BNE; and (3) CEPA cannot be used to void a lawful consent order.

On February 13, 2014, the plaintiff filed a memorandum in opposition to the defendants' motion, arguing that the commissioner misunderstands its allegations. The plaintiff denies that it is requesting that the commissioner obtain injunctive relief to have BNE restore the state forest; rather, it argues that the commissioner only had the authority under § 52-560a to refer the matter to the attorney general. The plaintiff further asserts that the commissioner did not have the authority to enter into the consent order either pursuant to §§ 22a-6 or 52-560a, and that, by entering into the order, he has prevented the plaintiff from pursuing an action against BNE for violation of CEPA. The plaintiff also argues that the commissioner, by entering into the order, has prevented the restoration of the state forest, thereby negatively impacting wildlife.

The defendants filed a memorandum in reply on March 13, 2014. They argue that no statute requires referral of the matter to the attorney general, the defendants' actions have not been illegal or impermissible, and the commissioner has broad authority to enter into a consent order. They also assert that the plaintiff lacks standing because it has failed to allege a substantive violation of environmental law or direct impairment or destruction of natural resources. This court heard argument on April 15, 2014.

II

"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013).

"If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial court's subject matter jurisdiction is a question of law. . . .

"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . .

"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue. . . .

"Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest. . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest. . . .

"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. . . .

"Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action. . . . [CEPA] . . . however, waives the aggrievement requirement in two circumstances. First, any private party, including a municipality, without first having to establish aggrievement, may seek injunctive relief in court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . . General Statutes § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging 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. General Statutes § 22a-19 (a). . . .

"Under § 22a-16, standing . . . is conferred only to protect the natural resources of the state from pollution or destruction. . . . Accordingly, all that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state. . . . Although it is true, of course, that the plain- tiff need not prove [his or her] case at this stage of the proceedings . . . the plaintiff nevertheless must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment. . . . A complaint does not sufficiently allege standing [however] by merely reciting the provisions of § 22a-16 . . . . Rather, it must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities unless remedial measures are taken." (Citations omitted; internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802-804, 970 A.2d 640 (2009).

III

The defendants maintain that the plaintiff is improperly attempting to use CEPA to sue them instead of suing BNE for the destruction of the forest. The plaintiff posits, however, that it would be unsuccessful in suing BNE for violations of CEPA because of the preclusive effect of the consent order. See Carothers v. Capozziello, 215 Conn. 82, 95-96, 574 A.2d 1268 (1990) ("[a consent ...