Housatonic River v. General Elec. Co.

• Decision Date: 04 December 1978
• Docket Number: Civ. No. B-77-314.
• Citation: 462 F. Supp. 710
• Court: U.S. District Court — District of Connecticut
• Parties: The HOUSATONIC RIVER, Judith Davidson, and Karan Spirer, Plaintiffs, v. GENERAL ELECTRIC COMPANY, Defendant.

462 F. Supp. 710

The HOUSATONIC RIVER, Judith Davidson, and Karan Spirer, Plaintiffs, v.GENERAL ELECTRIC COMPANY, Defendant.

Civ. No. B-77-314.

United States District Court, D. Connecticut.

December 4, 1978.

Alan R. Spirer, Davidson & Spirer, Westport, Conn., for plaintiff.

William R. Murphy, Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., for defendant.

RULING ON MOTION TO DISMISS

DALY, District Judge.

The Housatonic River is a navigable waterway which flows southward across Connecticut and empties into Long Island Sound.The river originates in Massachusetts, where the defendant in this diversity action, General Electric Company, allegedly has deposited into its waters a toxic and durable chemical known as polychlorinated biphenyls (PCB).Plaintiffs Davidson and Spirer have brought this action under the citizen-suit provision of the Connecticut Environmental Protection Act of 1971 (CEPA), Conn.Gen.Stat. § 22a-16,¹ under a similar standing provision in the Connecticut Inland Wetlands and Water Courses Act (IWWCA), Conn.Gen.Stat. § 22a-44,² and under state common law,³ alleging that the discharge of the PCB has "created a health hazard and an environmental threat to the Housatonic River, Long Island Sound and thus to the people of the State of Connecticut, salt and freshwater aquatic life, birds, mammals and plants."

The plaintiffs rely heavily on the citizensuit provisions in CEPAandIWWCA.They have made no attempt to differentiate their interests from those of the general public.They have not alleged any personal stake in the outcome of the suit except that deriving from their status as citizens and property owners of Connecticut, and as residents of Wilton and Westport, Connecticut.⁴Neither town borders on the Housatonic River, and the plaintiffs have not alleged that they use the river or its environs for any particular form of recreation.

I.

In passing CEPA, the Connecticut legislature meant to reinforce the administrative resources devoted to environmental protection by enlisting the aid of concerned citizenry.In providing "any person" with the right to sue to protect the public trust, "the legislature expanded the number of potential guardians of the public interest in the environment into the millions, instead of relying exclusively on the limited resources of a particular agency."Greenwich v. Connecticut Transportation Auth.,166 Conn. 337, 343, 348 A.2d 596, 599(1974).Section 22a-16 established a cause of action against unreasonable pollution that could be brought by any citizen, thus rejecting the traditional requirement that the plaintiff show a personal or unique injury separate from that suffered by the public at large.⁵

The Connecticut Supreme Court has not ruled explicitly on the validity of the statutory grant of standing under CEPA and it apparently has never been faced with a question involving the IWWCA citizen standing provision.⁶On two occasions, the court referred to the CEPA citizen-suit provision without any suggestion that the court might narrow the statute's broad sweep in a later suit.Belford v. City of New Haven,170 Conn. 46, 53-55, 364 A.2d 194(1975);Greenwich v. Connecticut Transportation Auth., supra.In those two cases, however, the court found CEPA inapplicable to the situations presented and so did not directly confront the standing issue presented here.Also of significance is the recent decision of Mystic Marinelife Aquarium, Inc. v. Gill, 40 Conn.L.J. No. 5, at 24(Sup.Ct.Aug. 1, 1978).In that case, the state Supreme Court determined that the plaintiff had not met the standard aggrievement criteria for appeals from administrative decisions, including the requirement of a "specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as in the concern of all members of the community as a whole."Id. at 27, quotingNader v. Altermatt,166 Conn. 43, 51, 347 A.2d 89, 94(1974).The court also referred to the oft-repeated "fundamental concept of judicial administration that no person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer, either in an individual or a representative capacity."Id. at 28, quotingWaterbury Trust Co. v. Porter,130 Conn. 494, 498, 35 A.2d 837(1944).⁷The court did affirm the lower court's conclusion that the defendant's plan would not unreasonably impair the public trust in the Mystic River, but did so without explicitly determining the validity of the broad grant of standing under CEPA.This Court, then, finds itself without authoritative guidance from the Connecticut Supreme Court on the issue of the standing of the present plaintiffs under either IWWCA or CEPA.

II.

This Court feels compelled by the recent decision in Naylor v. Case & McGrath, Inc.,585 F.2d 557(2d Cir.1978), to invoke the doctrine of abstention and to refrain from deciding this matter.This case turns, at least initially, on the resolution of the difficult question of whether these plaintiffs should be given standing under relatively recent Connecticut statutes.The resolution of this issue could have a fundamental effect on an important area of state policy.The question is one of which there has been no authoritative decision by the Connecticut Supreme Court, and one which is susceptible to an interpretation that would obviate the necessity for a determination by this court of the applicability to this diversity action of the Article III"case or controversy" requirement.⁸SeeNaylor v. Case & McGrath, Inc., supra at 565, quotingRailroad Commission v. Pullman,312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971(1941).

In Naylor,the court noted that abstention was proper in that the "statehas provided a unified method for the formation of policy and determination of issues by the Commissioner of Consumer Protection and in the state courts."Id. at 565, citingBurford v. Sun Oil Co.,319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424(1943).The same consideration here indicates that abstention is appropriate.

Connecticut has established a Department of Environmental Protection, C.G.S. § 22a-2, and has given the Commissioner of Environmental Protection broad authority to carry out the environmental policies of the state.C.G.S. § 22a-5.The Commissioner is empowered to adopt environmental standards, to hold hearings concerning violations, and to enter appropriate orders.C.G.S. § 22a-6.The Commissioner is also authorized, within certain limitations, to adopt a schedule of civil penalties for violations of applicable laws, regulations, and orders, C.G.S. § 22a-6b, and to formulate a statewide environmental plan.C.G.S. § 22a-8.Also established is a Council on Environmental Quality, C.G.S. § 22a-11, which is "empowered to receive and investigate citizen complaints alleging violation of any statute or regulation in respect to environmental quality," and to refer the complaint to the appropriate regulatory agency or to the Commissioner, as it deems appropriate.C.G.S. § 22a-13.

Under IWWCA, the Commissioner is directed to, among other things, inventory the state's wetlands and watercourses; encourage, participate in, or conduct studies; retain and employ consultants and assistants; and promulgate such regulations as are necessary to protect the wetlands or watercourses.C.G.S. § 22a-39.Municipal participation is encouraged through the provision that:

Any municipality . . . may authorize any board or commission, . . . or may establish a new board or commission to promulgate such regulations, in conformity with the regulations promulgated by the commissioner of Environmental Protection, as are necessary to protect the wetlands and watercourses within its territorial limits.

C.G.S.§ 22a-42(c).⁹

As these provisions indicate, the state has established a relatively comprehensive administrative structure for the purpose of developing and effectuating the state's environmental protection policies.Further, the state has provided a means by which its courts, when presented with allegations of environmental violations, can utilize the expertise of the appropriate administrative bodies.¹⁰Thus, the citizen standing provisions in CEPAandIWWCA may be viewed as but one aspect of a "unified method for the formation of policy and the determination of issues by the Commissioner . . . and in the state courts."Naylor v. Case & McGrath, Inc., supra at 565.In this context, it is proper for the federal court to defer to the expertise of the state court and regulatory agencies.This will "increase the assurance that all those affected by the statute in question, including the parties to this action, will be given the benefit of an authoritative and uniform rule of law . . .."Id.

Abstention is particularly appropriate under this rationale in that other questions of first impression under CEPAandIWWCA will possibly arise in this action that are appropriate for initial determination in the state courts.SeeId. at 563-64.Particularly significant in this case is the question of whether CEPAandIWWCA are applicable to extraterritorial activities.¹¹

"In the unique situation of the present case abstention can be exercised through remand, assuring an adjudication of the state law issues in the pending action without risk of delay.That is the indicated course where, as here, the state law is uncertain and its resolution is a matter of concern to the state."Id. at 565.

For the reasons stated above, Counts One and Two of this case, the remaining counts previously having been dismissed, should be remanded pursuant to 28 U.S.C. § 1447(c).SeeArmstrong v. Armstrong,508 F.2d 348, 350(1st Cir.1974).

IT IS SO ORDERED.

1Conn.Gen.Stat. § 22a-16(1977) provides in relevant part:

The attorney general, any political subdivision of the state, any instrumentality or agency of the state or a political subdiv...