Manchester Environmental Coalition v. Stockton

• Decision Date: 05 May 1981
• Citation: 184 Conn. 51,441 A.2d 68
• Court: Connecticut Supreme Court
• Parties: , 12 Envtl. L. Rep. 20,650 MANCHESTER ENVIRONMENTAL COALITION et al. v. Edward J. STOCKTON et al.

Page 68

441 A.2d 68

184 Conn. 51, 12 Envtl. L. Rep. 20,650

MANCHESTER ENVIRONMENTAL COALITION et al. v. Edward J. STOCKTON et al.

Supreme Court of Connecticut.

Argued Dec. 11, 1980.

Decided May 5, 1981.

Anthony F. Pagano, Manchester, with whom were David L. Schulman, Manchester, and, on the brief, Bruce S. Beck, Manchester, for appellants-appellees (plaintiffs).

Bourke G. Spellacy, Hartford, with whom was Elizabeth R. Collins, Hartford, for appellee-appellant (defendant J. C. Penney Co., Inc.).

Bernard F. McGovern, Jr., Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee-appellant (named defendant).

Rolland J. Castleman, Manchester, with whom was Jules A. Karp, Manchester, for appellee-appellant (defendant Manchester Economic Development Commission).

Before BOGDANSKI, SPEZIALE, PETERS, AMENTANO and WRIGHT, JJ.

BOGDANSKI, Justice.

This is an appeal by the plaintiffs, Michael Dworkin and Edith Schoell, ¹ from the decision of the trial court sustaining the action of the defendant, Edward J. Stockton, commissioner of commerce (commissioner), in approving the project plan for an industrial park to be located in Manchester.

In their cross appeal the defendants are challenging the court's finding of statutory standing for the plaintiffs. Although the legal issues are complex, the facts, while numerous, are largely undisputed.

In 1975 the state department of commerce initiated steps to develop an industrial park, which would include a catalogue distribution center for the J. C. Penney Company, Inc. In 1976, Manchester, along with other municipalities in the Hartford area, received an inquiry concerning a major commercial project that would require a site of approximately 200 acres with rail facilities and major highway access. The site eventually chosen consists of a 393 acre parcel in the northwest corner of Manchester.

The commerce department's involvement stems from chapter 132 of the General Statutes, entitled Municipal Development Projects. The purpose of this chapter is to encourage the growth of industry and business within the state. ² Pursuant to this chapter, the defendant town of Manchester, acting through the defendant Manchester Economic Development Commission (MEDC), retained the firm of Griswold and Fuss, Inc., to prepare the project plan. This project plan was submitted to the commissioner on January 10, 1977.

As required by General Statutes § 8-191, before the MEDC could adopt the plan, the Manchester planning commission had to find that it was in accord with the plan of development for the municipality. The capitol region council of governments had to do likewise for the region. The above required acts were performed in early 1977.

Section 8-189(k) provided that "(t)he project plan shall include: ... (k) findings ... that the plan is not inimical to any statewide planning program objectives of the state or state agencies as coordinated by the department of planning and energy policy ...." In conformity with this mandate, the department of planning and energy policy contacted numerous state agencies and requested their comments. Five of the thirteen agencies contacted responded with noninimical findings. The department of agriculture and the environmental protection agency, however, indicated that the plan might be inimical. On March 10, 1977, the department of planning and energy policy reported that the project would not be inimical to any statewide objectives. On March 11, 1977, the commissioner approved the project plan.

During November and December, 1976, the commissioner was requested by the plaintiffs to comply with General Statutes § 22a-1b(b) which requires an environmental impact statement. The commissioner agreed to comply with § 22a-1b(b). The impact statement was delivered to the commissioner in May, 1977. Thus, the project was approved before the impact statement was completed.

Under General Statutes § 8-195 the state approval of the project authorizes a state grant not exceeding 50 percent of the net cost. The financing was undertaken by the MEDC and a bond issue for this purpose was approved by Manchester voters on March 15, 1977.

On March 10, 1977, the plaintiffs brought suit seeking a declaratory judgment, and temporary and permanent injunctions against commissioner Stockton, the MEDC, and Gerald Okrant, chairman of the MEDC. The town of Manchester and the J. C. Penney Company, Inc., were later added as defendants. ³ On June 14, 1977, Public Acts 1977, No. 77-410 (validating act) was approved.

I

THE ENVIRONMENTAL PROTECTION ACT

The plaintiffs alleged a violation of the Environmental Protection Act of 1971 (EPA). General Statutes §§ 22a-14 through 22a-20. This act expands the class of plaintiffs who are empowered to institute proceedings to vindicate the public interest. The act creates both procedural and substantive rights. Similar acts have been passed in many states. ⁴ They are best known for eliminating standing barriers prevalent in traditional litigation. ⁵

In their action, the plaintiffs sought to enjoin "unreasonable pollution, impairment or destruction" ⁶ of the air which would result from the automobile traffic generated by the expected employment at the industrial site of 2000 full-time and 600 part-time workers. It is clear, and the trial court so found, that the plaintiffs have standing under § 22a-16 which confers standing upon "any person" to sue "any person" for "the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." ⁷ Statutes such as the EPA are remedial in nature and should be liberally construed to accomplish their purpose.

The trial court ruled that the plaintiffs' standing and their burden of proof at the trial comprise one and the same thing. That is not the case. Standing is automatically It is appropriate at this point to discuss the burden of proof under the EPA. Although the ultimate burden of proof never shifts from the plaintiff, the EPA contemplates a shifting of the burden of production. ⁸ See Ray v. Mason County Drain Commissioner, 393 Mich. 294, 311, 224 N.W.2d 883 (1975). The plaintiff must first make "a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair, or destroy the public trust in the air, water or other natural resources of the state ...." General Statutes § 22a-17. ⁹

granted under the EPA to "any person." The plaintiffs need not prove any pollution, impairment or destruction of the environment in order to have standing.

Under § 22a-17, the plaintiff must first come forward and show that the defendant has, or is reasonably likely to unreasonably pollute, impair, or destroy a natural resource. The legislative history shows that the word "unreasonably" was added as a means of preventing lawsuits directed solely for harassment purposes. ¹⁰

A review of the record shows that the plaintiffs presented a prima facie case by showing a protectible natural resource (air) and that the action of the defendants would impair this resource. See County of Freeborn v. Bryson, 297 Minn. 218, 228, 210 N.W.2d 290 (1973), rev'd on other grounds, 309 Minn. 178, 243 N.W.2d 316 (1976). Joseph Laforte, acting director of planning and coordination of the department of environmental protection, stated in part, "(t)here would be an increase in auto emissions, assuming that the automobile is the primary mode of transportation to and from the park." Dr. Thomas Sharpless, an expert called by the plaintiff, testified that "(m)y opinion is that there would be a significant impact (on Manchester air quality) and the basis for that is that there will be an increase at the site in traffic. Also, I believe that there is reasonable certainty that a large portion of that traffic will be Section 22a-17 expressly provides that the conduct of the defendant may be considered acting alone, or in combination with others. This recognizes the fact that a person may be polluting the environment but that his pollution alone may not be unreasonable. But when his pollution is introduced into the environment in combination with others, it may become unreasonable. ¹¹

of trips that wouldn't have been ordinarily made and are not simply diverted trips. And that the increased emissions will result in increased oxidant formation." Since the plaintiffs showed that the project would add more pollution, they presented a prima facie case.

Once a prima facie case is shown, the burden of production shifts to the defendant. Under § 22a-17, "the defendant may rebut the prima facie showing by the submission of evidence to the contrary." As stated in Ray v. Mason County Drain Commissioner, supra, 393 Mich. 311-12, 224 N.W.2d 883, "(t)he nature of the evidence necessary to rebut plaintiff's showing will vary with the type of environmental pollution, impairment or destruction alleged and with the nature and amount of the evidence proffered by the plaintiff. In some cases, no doubt, testimony by expert witnesses may be sufficient to rebut plaintiff's prima facie showing. While in other actions the defendant may find it necessary to bring forward field studies, actual tests, and analyses which support his contention that the environment has not or will not be polluted, impaired or destroyed by his conduct. Such proofs become necessary when the impact upon the environment resulting from the defendants' conduct cannot be ascertained with any degree of reasonable certainty absent empirical studies or tests." Because the trial court did not apply the statutory burden-shifting test, it did not decide whether the defendants sufficiently rebutted the plaintiffs' prima facie case. This issue must be determined on remand. We do not reverse the decision because of a disagreement with the trial court on a question of fact or the credibility of the...