Town of Westport v. State, 13078

Citation527 A.2d 1177,204 Conn. 212
Decision Date30 June 1987
Docket NumberNo. 13078,13078
CourtSupreme Court of Connecticut
PartiesTOWN OF WESTPORT v. STATE of Connecticut et al.

Richard L. Albrecht, with whom was Stewart I. Edelstein, Bridgeport, for appellant (plaintiff).

Cornelius F. Tuohy, Asst. Atty. Gen., with whom, on brief, was Joseph I. Lieberman, Atty. Gen., for appellees (defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and LAVERY, JJ.

PETERS, Chief Justice.

The determinative issue on this appeal is whether the state justifiably relied upon the existence of an emergency when it constructed a temporary truck weighing and inspection station without first undertaking an environmental impact evaluation. The plaintiff, the town of Westport, filed a complaint seeking injunctive and declaratory relief from the defendants. 1 As grounds for this relief, the plaintiff claimed that the construction and operation of a temporary weighing station between Exits 17 and 18 on Interstate Highway 95 in Westport violated the Environmental Policy Act, General Statutes §§ 22a-1 through 22a-13, and the Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20. The trial court, after an extensive hearing, rendered judgment for the defendants. The trial court found that the plaintiff could not prevail under the Environmental Protection Act, and that the defendants' noncompliance with the Environmental Policy Act was justified by that act's express exemption for emergency measures. General Statutes § 22a-1c. 2 The plaintiff sought and received permission for a direct appeal to this court pursuant to General Statutes § 52-265a. We find no error.

The trial court's memorandum of decision establishes the following facts. Interstate Highway 95, now known as the Governor John Davis Lodge Turnpike, was opened in the Westport area in 1957. The turnpike was operated as a toll road until October, 1985. Removal of the toll stations resulted in a 20 percent increase in traffic and a marked increase in accidents.

Governor William A. O'Neill, on August 22, 1986, declared a state of emergency on Connecticut's highways. Among the measures he then announced was the establishment of a temporary truck weighing and inspection station on the turnpike in Westport. Four days later, the deputy commissioner of transportation, relying on General Statutes § 13b-26(f), 3 declared the existence of an "emergency condition." His emergency declaration ordered the construction of a weighing and inspection station at a designated site in Westport that had formerly been a rest area but had been entirely closed to the public in recent years. 4

The Westport station is used for weighing and inspection purposes by having state inspectors flag over many but not all trucks using the highway. Those trucks that do not pass inspection may be "deadlined" at the rear of the parking lot at Sherwood Island State Park. Those that are found to be leaking either cargo or fuel may be required to discharge such fluids either over a sand pile or over a containment tank. The containment site, weighing station and inspection area are located less than 200 feet from the Sherwood Mill Pond, which is a prime coastal estuary. The "deadline" site is located adjacent to prime tidal wetlands.

The trial court expressly recognized that contamination by hazardous materials from the station site could jeopardize the environmental integrity of the pond, the estuaries and the wetlands. Based on experience, however, it is likely that, on average, less than one truck a month will be found to leak upon inspection at the Westport station. Few leaking trucks were discovered either during the initial inspections conducted at the Westport station or during earlier analogous inspections at a Mianus River Bridge station. 5

On the basis of these factual findings, the trial court ruled that the plaintiff had standing to pursue its claims under both the Environmental Policy Act and the Environmental Protection Act, and that its action was not barred by laches. The court also determined that these statutes applied to the construction of the Westport weighing and inspection station. On the merits of the plaintiff's claims, the court concluded that the plaintiff could not prevail under the Environmental Protection Act because it had failed to prove "any present reasonable expectation of unreasonable pollution." With respect to the Environmental Policy Act, however, the court determined that, because the project could "arguably damage the environment," the state had failed to comply with that act's requirement for preparation of an environmental impact assessment. 6 Nonetheless, the court ultimately rendered judgment for the defendants under the Environmental Policy Act on the ground that the state's failure to prepare an environmental impact statement was excused because of the statutory exception, in § 22a-1c, for "emergency measures ... undertaken in response to an immediate threat to public health or safety."

In this court, controversy has been limited to the scope and the applicability of the Environmental Policy Act. With regard to that act, the defendants challenge the trial court's conclusion that, but for the existence of an emergency, the department of transportation would have been required to undertake an environmental impact study before constructing the Westport weighing and inspection station. They claim that the trial court erred in applying the act retroactively to a site that antedated the effective date of the act, and in requiring an environmental assessment in the absence of a showing that departmental action would "significantly" affect the environment. General Statutes § 22a-1b(b). The plaintiff contends, on the other hand, that the trial court erred in its construction and application of the emergency exception contained in § 22a-1c. Finally, in a motion filed after the parties submitted their briefs, the defendants urge us to dismiss the plaintiff's appeal as moot because environmental impact evaluations have now been prepared for the Westport station, and elsewhere, in anticipation of finding a permanent location for a weighing and inspection station near the western terminus of Interstate Highway 95.

I

Because mootness is jurisdictional, this court having no authority to deliver advisory opinions, we must first address the question raised by the defendants' motion to dismiss. State v. Hope, 203 Conn. 420, 423-24, 524 A.2d 1148 (1987); Hartford Principals' & Supervisors' Assn. v. Shedd, 202 Conn. 492, 496-98, 522 A.2d 264 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571-74, 499 A.2d 1158 (1985). In their motion, the defendants allege that a detailed written environmental impact evaluation has now been prepared for the Westport weighing station, and that the public, including the plaintiff, has been notified of its availability.

As the plaintiff notes, however, the process of environmental assessment requires more than the publication of an environmental impact evaluation. Under the Environmental Policy Act, an agency's environmental evaluation must be reviewed and approved by the state office of policy and management, which has the authority, if necessary, to require whatever revisions are needed to satisfy existing statutory and regulatory requirements. General Statutes §§ 22a-1b through 22a-1e. Since the process of environmental evaluation has not yet been completed, the plaintiff's appeal is not moot.

II

The defendants urge us to affirm the judgment of the trial court by a different route than that taken by that court. The defendants argue that no environmental assessments of any kind were required in this case for two reasons: (1) the provisions of the Environmental Policy Act do not govern the "reactivation" of the Westport weighing station; and (2) the act, in § 22a-1b(b), requires environmental impact assessments only for departmental actions "which may significantly affect the environment." We are unpersuaded that either of these reasons justifies the failure to obtain an environmental assessment.

The defendants raised the retroactivity argument in the trial court, where they maintained that the Westport weighing station was planned, designed and constructed long before the effective date of the Environmental Policy Act. The trial court took no issue with the principle of law upon which the defendants rely, namely that statutes are presumed to operate prospectively. Enfield Savings & Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); East Village Associates, Inc. v. Monroe, 173 Conn. 328, 331-32, 377 A.2d 1092 (1977); see General Statutes § 55-3. Instead, the court found, as a matter of fact, that "the construction and operation of a truck inspection station [is] substantially different from the rest area and intermittent inspection of the station previously in use." Specifically, the court found that the site had at one time been a highway rest area, and had been used intermittently as a weighing station employing temporary mobile scales. In recent years it had been entirely closed to traffic. In constructing the weighing station, the department of transportation had laid new asphalt and installed barriers, guardrails, a shelter, and lights. A weighing scale had been embedded in a pit. Water catch-basins and connecting pipes had been relocated, and a large concrete epoxy lined containment tank had been added to the station area.

Since the defendants have not challenged the validity of any of these findings of fact, the only question that remains is whether the Environmental Policy Act governs substantially new construction on property that the state has owned and used for many years. The case cited by the defendants, National Wildlife Federation v. Goldschmidt, 504 F.Supp. 314, 317 (D.Conn.1980), aff'd, 677 F.2d 259 (2d Cir.1982), does not address this question, because it deals with a...

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