Fish Unlimited v. Northeast Utilities Service Co.

• Decision Date: 01 August 2000
• Docket Number: (SC 16268)
• Citation: 254 Conn. 21,755 A.2d 860
• Court: Connecticut Supreme Court
• Parties: FISH UNLIMITED ET AL. v. NORTHEAST UTILITIES SERVICE COMPANY ET AL.

254 Conn. 21

755 A.2d 860

FISH UNLIMITED ET AL. v. NORTHEAST UTILITIES SERVICE COMPANY ET AL.

(SC 16268)

Supreme Court of Connecticut.

Argued May 23, 2000.

Officially released August 1, 2000.

Borden, Norcott, Katz, Palmer and Blue, Js.

Nancy Burton, for the appellants (plaintiffs).

Elizabeth C. Barton, with whom were Harold M. Blinderman and, on the brief, Donald C. Mahoney, for the appellees (defendants).

Opinion

KATZ, J.

The dispositive issue in this appeal is whether the plaintiffs¹ have standing under General Statutes § 22a-16² to bring this action in Superior Court against the defendants,³ seeking: (1) an injunction to prevent the operation of Millstone Nuclear Power Generating Station (Millstone); and (2) a declaratory judgment that the discharge permit, issued to the defendants by the department of environmental protection (department) pursuant to the federal Clean Water Act, is invalid.⁴ The trial court rendered judgment dismissing the complaint, having concluded that the plaintiffs lacked standing under § 22a-16 to bring this action directly in the Superior Court, and that the plaintiffs failed to exhaust their administrative remedies before the department.⁵ The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c). We affirm the trial court's judgment dismissing the complaint.

The following facts are pertinent to this appeal. Millstone is made up of three nuclear power units. Each unit is equipped with a "once-through condenser cooling system" that draws large volumes of seawater from Niantic Bay into the units. This water is used to cool the units and is later discharged into Long Island Sound.

Pursuant to the federal Clean Water Act; see footnote 4 of this opinion; no person or municipality may initiate a discharge into the waters of the United States without first obtaining a National Pollution Discharge Elimination System (NPDES) permit. The department issues these permits pursuant to General Statutes § 22a-430⁶ et seq. and has issued such permits in the past to the defendants, thereby authorizing the discharge of water that is required for the operation of Millstone.

The defendants' most recent NPDES permit was issued by the department on December 14, 1992, for a maximum term of five years.⁷ The five year term was due to expire on December 13, 1997. Prior to that date, however, the defendants submitted a timely renewal application pursuant to § 22a-430 (c). That application is still pending. Accordingly, pursuant to General Statutes § 4-182 (b),⁸ the defendants' 1992 permit will remain in effect until the renewal application has been finally resolved by the department.

On June 2, 1999, the plaintiffs brought the present action in the trial court, alleging that water intakes and discharges at Millstone were causing unreasonable pollution, impairment and destruction of the air, water and other natural resources of the state within the meaning of § 22a-16. They also alleged that, although the defendants had timely applied to renew their 1992 NPDES permit, their application was legally deficient. Specifically, the plaintiffs claimed that, in their renewal application, the defendants had represented that they had "sought a permit to generate electricity" at Millstone, but that Millstone was not in fact producing electricity at the time of the renewal application. Therefore, according to the plaintiffs, the defendants were not engaged in an activity of a "continuing nature" that, pursuant to § 4-182 (b), would, in effect, save the 1992 permit from otherwise expiring.⁹ Consequently, the plaintiffs contended that the defendants had been discharging water from Millstone without a valid permit. In addition, the plaintiffs claimed that the defendants had acted in bad faith in their efforts to renew the permit. Finally, the plaintiffs alleged that the defendants and the department together had acted in bad faith and in collusion, which caused the public trust in the air, water and other natural resources of the state to be undermined, leaving the plaintiffs essentially with no adequate remedy at law. Consequently, according to the plaintiffs, they were "forced" to seek a temporary and permanent injunction against the operation of Millstone and a declaratory judgment that Millstone was operating without a valid NPDES permit.

The defendants moved to dismiss the complaint on the grounds that: (1) the plaintiffs lacked standing; (2) the plaintiffs had failed to exhaust their administrative remedies; (3) the plaintiffs' claims were barred by the doctrine of res judicata; and (4) the plaintiffs' claims were barred by the prior pending action doctrine. The trial court, Hon. Robert J. Hale, judge trial referee, dismissed the complaint on the grounds that the plaintiffs lacked standing to bring this action directly in the Superior Court under § 22a-16, and that they had failed to exhaust their administrative remedies. In addition, the trial court noted that, if the plaintiffs had proven collusion between the defendants and the department, they might have established an exception to the exhaustion requirement. The trial court concluded, however, that the plaintiffs had failed to prove collusion, and thus, were not entitled to the exception. The plaintiffs appealed from the judgment of dismissal. We agree with the trial court's conclusion that the plaintiffs lacked standing to bring this action directly in the Superior Court and, therefore, we affirm its judgment.¹⁰

The plaintiffs contend that they have standing pursuant to § 22a-16 to bring this action directly in the Superior Court. The defendants, however, claim that, pursuant to General Statutes § 22a-19 (a), this action must be brought by way of intervention in the permit renewal proceedings¹¹ and, therefore, the trial court properly concluded that the plaintiffs lacked standing.¹² The issue of standing implicates this court's subject matter jurisdiction. Middletown v. Hartford Electric Light Co., 192 Conn. 591, 595, 473 A.2d 787 (1984). Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action. See Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396 (1969). The Connecticut Environmental Protection Act; General Statutes § 22a-1 et seq.; 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).

Although § 22a-16 abrogates the aggrievement requirement for bringing an action directly in the Superior Court, our case law explains the limitations of § 22a-16, and elaborates why the plaintiffs must pursue their claim by intervening in an administrative hearing before the department pursuant to § 22a-19. In Middletown v. Hartford Electric Light Co., supra, 192 Conn. 595, the plaintiffs brought an action under § 22a-16 to enjoin a utility company and its parent company from burning certain oils containing hazardous materials without first obtaining permits from the department, including a wastewater discharge permit pursuant to § 22a-430, the same section under which the defendants in the present case have sought a renewal of their permit. The trial court dismissed the action because the plaintiffs lacked standing to enforce the statutory environmental permitting scheme. We agreed. Id. Citing to Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984), wherein this court held that § 22a-19 "must be read in connection with the legislation which defines the authority of the particular administrative agency," the court in Middletown concluded that the plaintiffs lacked standing to challenge the defendants' failure to obtain the necessary permits pursuant to, inter alia, § 22a-430. Middletown v. Hartford Electric Light Co., supra, 597. Only in the absence of an appropriate administrative body may an independent action pursuant to § 22a-16 be brought. Id. Because the permitting statutes at issue, including § 22a-430, conferred extensive authority over permitting issues on the department, the court concluded that § 22a-16 did not provide the plaintiffs with standing to challenge the defendant's failure to obtain a permit under any statute other than the Environmental Protection Act itself. Id.

In the present case, the plaintiffs seek to use § 22a-16 to afford standing to raise permitting claims governed by § 22a-430. The department, however, has statutory and regulatory authority to issue water discharge permits,¹³ to determine the completeness of renewal applications¹⁴ and to pursue any one of several remedies if it concludes that a discharge is creating unreasonable pollution¹⁵ or is occurring without a valid permit.¹⁶ The plaintiffs, in the present case, cannot use § 22a-16 as an "open sesame" to litigate environmental issues that are governed by § 22a-430, and which clearly have been placed within the exclusive domain of the department. Middletown v. Hartford Electric Light Co., supra, 192 Conn. 597. Thus, we conclude that the plaintiffs lack standing to bring this action pursuant to § 22a-16.

The judgment is affirmed.

In this opinion the other justices concurred.

1. The...