Conn. Energy Marketers Ass'n v. Dep't of Energy & Envtl. Prot.

• Court: Connecticut Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Conn. Energy Marketers Ass'n v. Dep't of Energy & Envtl. Prot., 324 Conn. 362, 152 A.3d 509 (Conn. 2016)
• Decision Date: 29 December 2016
• Docket Number: SC 19620
• Parties: CONNECTICUT ENERGY MARKETERS ASSOCIATION v. DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION et al.

324 Conn. 362

152 A.3d 509

CONNECTICUT ENERGY MARKETERS ASSOCIATION

v.DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION et al.

SC 19620

Supreme Court of Connecticut.

Argued October 14, 2016

Officially released December 29, 2016^*

Alphonse M. Alfano, pro hac vice, with whom were Calvin K. Woo, Westport and, on the brief, Karen A. Mignone, Westport, for the appellant (plaintiff).

Robert D. Snook, Hartford and Robert L. Marconi, assistant attorneys general, Hartford, with whom, on the brief, were George Jepsen, attorney general, Hartford, and Clare E. Kindall, assistant attorney general, Hartford, for the appellees (defendants).

Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.

ROBINSON, J.

The issue that we must address in this appeal is whether the issuance of a comprehensive energy strategy by the defendant Department of Energy and Environmental Protection (department), pursuant to a legislative directive, and the subsequent approval of a plan to expand the use of natural gas in this state by the department and the defendant Public Utilities Regulatory Authority (authority) constituted " ‘actions which may significantly affect the environment’ " within the meaning of General Statutes § 22a–1c,¹ thereby triggering the requirement for written evaluation of the expansion plan's environmental impact pursuant to General Statutes § 22a–1b (c).² The plaintiff, Connecticut Energy Marketers Association, brought this action against the defendants claiming that they violated the Environmental Policy Act (act), General Statutes § 22a–1 et seq., when the department issued a comprehensive energy strategy that contemplated a significant expansion of the use of natural gas in this state, and when both defendants approved a plan for such expansion, without evaluating the environmental impact of, among other things, an increase in the use of natural gas pursuant to § 22a–1b (c). The defendants filed separate motions to dismiss the plaintiff's complaint claiming that only "individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's" environmental resources; General Statutes § 22a–1c ; constitute "actions which may significantly affect the environment" for purposes of § 22a–1b (c). Because they did not undertake any such activities, the defendants claimed, no environmental impact evaluation was required. The trial court agreed with the defendants and rendered judgment dismissing the complaint. The plaintiff claims on appeal³ to this court that the trial court improperly determined that the defendants' activities did not constitute "actions which may significantly affect the environment" for purposes of § 22a–1b (c). We disagree with the plaintiff, and affirm the judgment of the trial court.

The record reveals the following facts, which are undisputed or were found by the trial court, and procedural history. In 2011, the legislature enacted General Statutes § 16a–3d, which directs the Commissioner of Energy and Environmental Protection to prepare a comprehensive energy strategy for the state every three years.⁴ See Public Acts 2011, No. 11–80,

§ 51.⁵ Pursuant to this directive, the department⁶ issued a document entitled "2013 Comprehensive Energy Strategy for Connecticut" (comprehensive energy strategy) on February 19, 2013. As part of the comprehensive energy strategy, the department recommended a significant expansion of the use of natural gas in the state.

This proposal would require the expansion of natural gas pipeline capacity into the state, regulatory changes to enable certain customers to have their connections financed by the state's gas companies, the construction of approximately 900 miles of gas mains to provide access to consumers, and incentives for the state's gas companies to "ramp–up the required construction quickly ...."

The department also recommended that the state's gas companies submit a detailed conversion plan to the department and the authority. The department would then review the plan for consistency with the goals of the comprehensive energy strategy and the authority would assess the plan's potential impact on ratepayers. In June, 2013, the legislature enacted General Statutes § 16–19ww, adopting the department's recommendations. See Public Acts 2013, No. 13–298, § 51.⁷

Thereafter, Southern Connecticut Gas Company, Connecticut Natural Gas Corporation, and Yankee Gas Services Company (local distribution companies) submitted to the defendants a Joint Natural Gas Infrastructure Expansion Plan (expansion plan). The department found the expansion plan "to be generally consistent with the [comprehensive energy strategy] goals," but recommended several modifications. The local distribution companies made the recommended modifications and resubmitted the modified expansion plan to the defendants, at which time the authority commenced a contested case to investigate the plan's impact on ratepayers pursuant to § 16–19ww (c).⁸ During the course of that proceeding, two parties submitted letters to the authority contending that the authority was required to prepare an environmental impact evaluation pursuant to § 22a–1b (c). In response, the authority issued a notice of request for written comments on that issue. The department submitted a letter to the authority contending that an environmental impact evaluation was not required because the authority was not the sponsoring agency for the proposed expansion of the natural gas distribution system, it was not funding the proposed expansion, it was not performing the proposed expansion and it would have no ownership interest in the proposed facilities. The authority issued a final decision approving the expansion plan without requiring an environmental impact evaluation.

The plaintiff, a trade association of more than 500 energy marketers who sell gasoline and heating fuel to residential and commercial customers throughout the state, then brought this action pursuant to General Statutes § 22a–16⁹ in 2014 claiming that the expansion plan would increase the amount of natural gas escaping into the atmosphere, thereby exacerbating global warming,¹⁰ and that it would also have other negative impacts on the state's environmental resources. The plaintiff sought a declaratory judgment that the defendants had violated the act by failing to conduct an assessment of environmental significance or to prepare an environmental impact evaluation pursuant to § 22a–1b (c). The plaintiff also sought an injunction requiring the defendants to perform those acts.

The department filed a motion to dismiss or to strike the plaintiff's complaint claiming, among other things, that the department had not undertaken any " ‘actions which may significantly affect the environment,’ " as that term is defined in § 22a–1c, that would require the preparation of an environmental impact evaluation pursuant to § 22a–1b (c). The authority filed a separate motion to dismiss raising the same claim. The trial court concluded that, because the defendants were merely acting pursuant to the legislative directives contained in §§ 16a–3d and 16–19ww, their conduct did not come within the definition set forth in § 22a–1c and they were not required to prepare an environmental impact evaluation. Accordingly, the trial court concluded that the plaintiff had failed to state a claim pursuant to the act and rendered judgment dismissing the complaint on the ground that it lacked subject matter jurisdiction under the doctrine of sovereign immunity.¹¹ This appeal followed.

The plaintiff contends that the trial court incorrectly concluded that the department's preparation of the comprehensive energy strategy and the approval of the expansion plan by both the department and the authority were not " ‘actions which may significantly affect the environment’ "; General Statutes § 22a–1c ; requiring an environmental impact evaluation pursuant to § 22a–1b. We disagree.

The question of whether the trial court properly dismissed the plaintiff's complaint turns on the proper interpretation of the phrase " ‘actions which may significantly affect the environment’ " as used in § 22a–1c, which is an issue of statutory interpretation that presents a question of law. Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc. , 310 Conn. 797, 808–809, 82 A.3d 602 (2014). "[A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation ...." (Citations omitted; internal quotation marks omitted.) Longley v. State Employees Retirement Commission , 284 Conn. 149, 163, 931 A.2d 890 (2007). Conversely, "courts should accord deference to an agency's formally articulated interpretation of a statute when that interpretation is both time-tested and reasonable." Id.

In the present case, the defendants make no claim that their interpretation of § 22a–1c as excluding the department's preparation of the comprehensive energy strategy and the defendants' approval of the local distribution companies' expansion plan is time-tested, and this interpretation has not previously been subject to judicial scrutiny. Accordingly, our review is plenary.

"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of...