Not Another Power Plant v. Conn. Siting Council
| Decision Date | 28 September 2021 |
| Docket Number | SC 20464 |
| Citation | 265 A.3d 900,340 Conn. 762 |
| Parties | NOT ANOTHER POWER PLANT v. CONNECTICUT SITING COUNCIL et al. |
| Court | Connecticut Supreme Court |
Mary Mintel Miller, Hartford, for the appellant (plaintiff).
Robert L. Marconi, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Clare E. Kindall, solicitor general, for the appellee (named defendant).
Linda L. Morkan, with whom were Kenneth C. Baldwin, James P. Ray and, on the brief, Emilee Mooney Scott, Hartford, for the appellee (defendant NTE Connecticut, LLC).
Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn and Ecker, Js.
The principal issue in this appeal is whether the named defendant, the Connecticut Siting Council (council), properly refused to consider the environmental impact of installing a gas pipeline to a proposed electric generating facility when weighing the public benefit of the facility against its probable environmental impact pursuant to the Public Utility Environmental Standards Act (act), General Statutes § 16-50g et seq. The defendant NTE Connecticut, LLC (NTE), submitted an application to the council seeking a certificate of environmental compatibility and public need for the construction of an electric generating facility (facility) in the town of Killingly (town) pursuant to the act. Thereafter, the plaintiff, Not Another Power Plant, a nonprofit association formed to promote environmental conservation in the town, intervened in the proceeding pursuant to General Statutes § 22a-19 (a) (1).1 After conducting hearings, the council issued a decision approving NTE's application. The plaintiff then appealed from the council's decision to the trial court, claiming that, when weighing the public benefit of the facility against the harm that it would cause to the environment, the council improperly had failed to consider the environmental impact of a gas pipeline that would have to be installed in the future to provide fuel to the facility. The trial court concluded that the council was not required to consider the impact of the gas pipeline and rendered judgment dismissing the plaintiff's administrative appeal. On appeal to this court,2 the plaintiff claims that the council's refusal to consider the environmental impact of the future gas pipeline was arbitrary and capricious. In response, the defendants disagree and also challenge the plaintiff's standing to bring this administrative appeal. Although we conclude that the plaintiff had standing, we also conclude that the trial court properly dismissed the plaintiff's administrative appeal. Accordingly, we affirm the judgment of the trial court.
The record reveals the following facts, which were found by the council and the trial court or are undisputed, and procedural history. On August 17, 2016, NTE filed with the council an application for a certificate of environmental compatibility and public need (certificate) pursuant to General Statutes § 16-50k (a).3 NTE explained in the application that "[n]atural gas will be provided [to the facility] through a firm natural gas fuel supply contract ...." The natural gas would be supplied through an upgraded gas pipeline to be constructed and owned by Eversource Energy Service Company (Eversource). Eversource currently owns and operates an approximately fifty year old distribution gas pipeline that extends from a mainline located approximately two miles from the proposed facility site. Eversource would replace the distribution pipeline with a new pipeline with a diameter of at least fourteen inches. NTE further explained that it was seeking authorization to use ultra-low sulfur distillate as a fuel for the facility for up to 720 hours per year, although actual use was "expected to occur on the order of several hours once every two to three years and only under the circumstance where natural gas supply is not available."4
The plaintiff successfully sought permission to intervene in the proceeding pursuant to § 22a-19 (a) (1), claiming that approval of the facility would result in the unreasonable pollution and impairment of the public trust in the environment.5 Thereafter, the plaintiff filed a motion for a stay and/or to dismiss the application, in which it claimed that the council was required to consider the environmental impact of the future gas pipeline when weighing the public benefit of the facility against the harm that it would cause to the environment, as required by General Statutes § 16-50p.6 The plaintiff pointed out in the motion that the new pipeline would cross or abut (1) large wetland areas, (2) open space and protected land held by the Wyndham Land Trust, (3) the Bafflin Sanctuary, which is owned by the Connecticut Audubon Society, and the Air Line State Park Trail, (4) a large, undeveloped parcel owned by the Pomfret Rod and Gun Club, and (5) the Quinebaug River. The plaintiff also pointed out that NTE had not obtained a firm commitment as to the design and construction of the new pipeline and had not fully assessed the environmental impact that it would have. Accordingly, the plaintiff contended that the council should dismiss NTE's application or stay proceedings on it until the council could consider Eversource's application with respect to the pipeline. The council denied the motion on the ground that "the application was deemed complete by the [c]ouncil on September 15, 2016, and the feasibility of the utility interconnections will be explored during the course of these proceedings."
During the hearings on NTE's application, counsel for the plaintiff asked counsel for NTE, Mark Mirabito, whether it was "fair to say that with respect to th[e] gas pipeline ... there's no evidence in th[e] record before [the council] for [it] to determine what impacts ... installation of this gas pipeline will have ... on the wetlands, open space, state park and land trust lands and the Quinebaug River ...." Another attorney for NTE, Kenneth C. Baldwin, objected to the question on the ground that "the [c]ouncil has already determined that it will review those impacts at a future time in an application filed by the appropriate party, in this case, Yankee Gas."7 The council's chairman, Robert Silvestri, stated, "that is correct." Counsel for the plaintiff then asked for clarification as to whether the council would be considering the environmental impact of the new pipeline. Counsel for the council, Melanie A. Bachman, stated that,
The council found that the proposed facility was "necessary for the reliability of the electric power supply of the state" and, therefore, that it would be a public benefit. The council further concluded, without considering the potential environmental effects of the future gas pipeline, that the facility would not be "in conflict with the policies of the state concerning the natural environment, ecological balance, public health and safety, scenic, historic, and recreational values, agriculture, forests and parks, air and water purity, and fish, aquaculture and wildlife, together with all other environmental concerns ...." Finally, the council concluded that the adverse impacts of the proposed facility "are not disproportionate either alone or cumulatively with other effects when compared to [the] public benefit, are not in conflict with [the] policies of the [s]tate concerning such effects, and are not sufficient reason to deny the application." Accordingly, it directed that a certificate be issued to NTE.
The plaintiff brought this administrative appeal from the council's decision to the trial court pursuant to General Statutes § 4-183. The plaintiff contended that the council had improperly segmented "the project"—namely, the electric generating facility together with the gas pipeline that would be required to provide fuel to the facility—into separate projects to avoid a comprehensive review of its overall environmental impact. NTE denied the plaintiff's substantive claims and raised the special defense that the plaintiff lacked standing to bring the administrative appeal. Specifically, NTE contended that, because the council's decision was related only to the electric generating facility, and because the plaintiff made no claim that the construction and operation of that facility , standing alone, would cause harm to the environment, the plaintiff lacked statutory standing under § 22a-19 (a) (1). The council also denied the plaintiff's substantive claims.
The trial court rejected NTE's claim that the plaintiff lacked standing, concluding that, because the plaintiff contended that the council should have considered the electric generating facility and gas pipeline as one project, and because it alleged that the gas pipeline was reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the natural resources of the state, its claims were sufficient to establish statutory standing under § 22a-19 (a) (1). Addressing the merits of the plaintiff's claim that the council had improperly segmented the project, the trial court concluded that ...
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