Opinion
No. CV09 4009370
July 28, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO REARGUE, (MOTIONS TO DISMISS #105 AND #106) DATED MAY 20, 2009
FACTS
On March 16, 2009, the plaintiff, Nancy Burton, filed a one-count complaint against the defendant Dominion Nuclear Connecticut (DNC), under General Statutes §§ 22a-16, 22a-18 and 22a-20 of the Connecticut Environmental Protection Act (CEPA). In her complaint, the plaintiff alleges that the cooling system at the Millstone Power Station (Millstone), which is owned by DNC, causes unreasonable pollution in Niantic Bay and Long Island Sound. Specifically, the plaintiff alleges that the process of drawing water from Niantic Bay to use in Millstone's cooling systems results in the dangerous depletion of Niantic river winter flounder and the process will lead to the species' extinction. The plaintiff seeks a declaration that the defendant's actions at Millstone violate Connecticut Water Quality Standards and CEPA. The plaintiff further seeks an injunction preventing the defendant from withdrawing water from Long Island Sound for cooling purposes from the end of March through early June 2009. The plaintiff in her complaint does not allege that the permit renewal process conducted by the Department of Environmental Protection is inadequate. Nor does she allege in her complaint that the hearing officer is biased or in any way impartial.
On March 23, 2009, the Connecticut Department of Environmental Protection (DEP) filed a motion to intervene pursuant to Practice Book § 9-6. This court (Devine, J.) granted its motion to intervene on March 23, 2009, and DEP was added as a defendant.
On March 23, 2009, both DNC and DEP filed motions to dismiss on the ground that plaintiff lacked standing to bring the action because she did not allege classical aggrievement and lacked statutory standing under CEPA. Both defendants filed memoranda and affidavits in support of their motions to dismiss. On March 30, 2009, the plaintiff filed a memorandum in opposition to the defendants' motions to dismiss. On April 2, 2009, a hearing was held on said motions. On April 30, 2009, this court granted the defendants' motions to dismiss holding that the plaintiff lacked standing under General Statutes § 22a-16.
On June 2, 2009 the Connecticut Supreme Court, in Burton v. Commissioner of Environmental Protection, 291 Conn. 789 (2009) (an appeal from a related case, Burton v. McCarthy, Superior Court, judicial district of Hartford, Docket No. CV 07 4028617 (May 15, 2007, Tanzer, J.)) [ 43 Conn. L. Rptr. 454], held that the plaintiff in that case, again Nancy Burton, "[had] standing under § 22a-16 to raise her claim that the existing permit renewal proceeding [regarding the Millstone facility] is inadequate to protect the rights recognized by [CEPA]."
On May 20, 2009, the plaintiff filed a motion for reargument in the present case on the ground that the decision in Burton v. Commissioner of Environmental Protection, supra, 789, applies in the present case and establishes that she has standing under § 22a-16 to pursue her claims. On June 3, 2009, the defendants filed an objection to the plaintiff's motion for reargument.
DISCUSSION
"The purpose of a reargument is to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts, and it also may be used to address claims of law that the movant claimed were not addressed by the court; however, a motion to reargue is not to be used as an opportunity to have a second bite of the apple." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 95 n. 28, 952 A.2d 1 (2008).
In her memorandum of law in support of her motion to reargue, the plaintiff argues that the Connecticut Supreme Court decision in Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 789, is controlling in the present case and that the court erred in dismissing her case for lack of standing. The Supreme Court's decision in Burton v. Commissioner of Environmental Protection, involved a case where the plaintiff had alleged both that there was an ongoing unreasonable pollution at Millstone and that the permitting process available at the DEP was inadequate to protect the environment from such pollution. In the present case, however, the plaintiff, in her complaint, merely alleges that there is ongoing unreasonable pollution at Millstone and she makes no allegations that the current permitting process at DEP is biased or somehow inadequate to protect the environment from pollution. as such, the holding and direction offered by Burton v. Commissioner of Environmental Protection, supra, 789, is inapplicable to the present case because the plaintiff has not alleged a procedural deficiency with regard to the permitting process.
The claim of procedural inadequacy was at the center of the Supreme Court's decision in Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 789. Throughout that decision, the court emphasized the importance of the plaintiff's claim of procedural inadequacy at the DEP. at the outset of its analysis, the court stated that its holding was that "the plaintiff has standing under § 22a-16 to raise her claim that the existing permit renewal proceeding is inadequate to protect the rights recognized by [CEPA]." Id., 797. Further, in its decision, the court summarizes the plaintiff's complaint in that case as follows: "[I]n essence . . . the plaintiff alleges that, if the hearing officer and the department had fairly and impartially conducted the permit renewal proceeding, they would not have allowed [DNC] to continue Millstone's operations under the emergency authorization or issued the tentative decision to renew the discharge permit because the impact of the operations on the marine life in the neighboring bodies of water is more harmful than that permitted by the applicable regulatory scheme." Id., 805. Further, when describing the nature of the plaintiff's claims, the court stated "[w]e disagree, however, that the plaintiff . . . is seeking to have the court impose stricter environmental standards than that provided by statute and regulation. Rather, she is claiming, pursuant to § 22a-20, that the permit renewal proceeding is inadequate to protect the rights recognized by [CEPA] . . . because the hearing officer and the department have not conducted the proceeding fairly and impartially. Thus, she seeks to have the trial court enforce compliance with the existing statutory scheme, not to conceive and impose its own standard of reasonableness." Id., 812.
The importance of the claims of procedural inadequacy in Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 789, is perhaps best exemplified by the nature of the remedy prescribed by the court in that case. When providing the trial court with instructions on remand, the court stated "[i]f the trial court determines that the plaintiff has not established that the hearing officer is biased or the department has prejudged the permit renewal application and that the permit renewal proceeding is adequate to protect the rights recognized by the act, the court then will have the discretion to stay this action pending completion of the permit renewal proceeding . . . If, on the other hand, the trial court determines that the permit renewal proceeding is inadequate to safeguard the rights recognized by the act, the court may stay those proceedings and craft orders to ensure that those rights are adequately protected. We leave the scope of any such orders to the informed discretion of the trial court." Id., 813.
In Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 813, the Supreme Court instructed the trial court that it could take one of two courses of action upon remand. It could either find that the plaintiff has failed to establish that the permitting procedure is compromised and stay the action pending the completion of the permitting process; or, it could find that the permitting process is, in fact, inadequate to protect the environmental rights in question and craft orders that would ensure that those rights are adequately protected. Id.
Those limited remedies strongly indicate that the Supreme Court delivered a narrow holding that related solely to CEPA challenges where the plaintiff alleges both unreasonable environmental harm and that the agency permitting procedure is fatally flawed. Further, the remand instructions create a binary path for lower courts to follow that is impossible to comply with in cases such as the one at hand, because the plaintiff has not alleged that the permitting procedure is invalid. Whether the rights recognized under CEPA are adequately protected by the permitting process is simply not at issue in the present case. This court cannot pass judgment on the issues decided by the Supreme Court.
CONCLUSION
In the present case, the plaintiff, in her complaint, does not allege that the permitting process is flawed or inadequate. She merely alleges that DNC's conduct at Millstone constitutes unreasonable pollution. Because the present case does not involve an allegation of procedural defects in the permitting process, the decision in Burton v. Commissioner of Environmental Protection, supra, 291 Conn. 789, does not control the court's decision making in the present case. Accordingly, there is no new controlling Supreme Court precedent affecting this court's decision in the present controversy.
ORDER
The plaintiff's motion to reargue is hereby denied.