Opinion
No. CV06-4020284-S
August 22, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff non-profit corporation has initiated an action for a temporary and permanent injunction in a complaint which alleges that the defendants' business operations in a residential neighborhood are "causing a public nuisance and unreasonable harm to the public trust in (the) natural resources of the state."
The defendants have filed a motion to dismiss arguing that "the plaintiff lacks standing to pursue its cause of action under (§ 22a-16 of the General Statutes) because this case relates to claims regarding permit proceedings." That is (1) "all of the claims involve permit proceedings delegated by licensing statutes to administrative agencies" and (2) under Coalition Against Millstone v. Rocque, 267 Conn. 116 (2003) the plaintiff's claims do not comply with the standing requirements of § 22a-16. The court will summarize the defendant's argument which it will analyze in more depth later in the opinion. The defendants argue that after Rocque parties only have § 22a-16 standing "to pursue claims directed primarily to the polluting activity itself but not claims that involve a permit proceeding." In determining whether § 22a-16 claims "involve permit proceedings or whether they directly allege pollution, courts primarily analyze whether the plaintiff frames its claims as part of a permit process. More specifically, claims involve permit proceedings if they focus on permit violations or if they duplicate issues under consideration in a permit proceeding." Here the plaintiff lacks standing under § 22a-16 "because all of its claims discuss permit proceedings and involve issues addressed in those proceedings. The entire complaint focuses on whether defendants have proper permits for their activities and on other issues addressed in permit proceedings." The argument goes on to say that "regardless of how (the plaintiff) phrases its claims none of them are `sufficiently independent' from permit proceedings to establish standing under section 22a-16, even if the complaint never discussed permit proceedings." There is in effect a "complete overlap" between the claims advanced here and the issues being addressed in the permit proceedings and that "distinguishes this case from those with independent direct pollution claims"; here the plaintiff makes "repeated references to permit proceedings."
In this regard the defendants represent in their memorandum that they will establish that the Inland Wetlands Commission "continues to evaluate each of the plaintiff's claims in ongoing permit proceedings. Legal notice of a June 2006 hearing indicated the commission would consider stockpiling, storage and loading of paving materials and repair of paving equipment. The defendants also stated they were prepared to offer proof that once the hearings before Guilford's Inland Wetlands Commission were completed the town's Planning and Zoning Commission will consider special permit and site plant applications of the defendant — "thus all of (the plaintiff's) claims involve permit proceedings governed by state or local licensing statutes: inland wetlands (§§ 22a-36 to 22a-45) tidal wetlands (§§ 22a-28 to 22a-35a) and zoning site plan and special permit approvals (§§ 8-3 and 8-3c)."
The plaintiff, in the introduction to its brief claims the defendants "wrongfully claim that this is a `permitting claim,' a challenge to a permitting procedure or solely a challenge to the lack of permits. Plaintiff has no argument with the permitting process or the regulations that might otherwise apply." It goes on to argue that the fact "that the defendants have not obtained any permits for the offending activities makes them unlawful for nuisance purposes but the unreasonable harm alleged is most assuredly the actual, ongoing dispersion of hazardous dust and the destruction of the tidal wetlands."
(a)
The defendants set forth the legal framework for resolution of the issue they raise with regard to standing by citing Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 21, 31 (2000).
Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action.
. . .
The Connecticut Environmental Protection Act; General Statutes § 22a-1 et seq.; however, waives the aggrievement requirement in two circumstances. First, any private party, including a municipality, without first having to establish aggrievement, may seek injunctive relief in court `for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . .' General Statutes. § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging `conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.' General Statutes § 22a-19(a).
Here of course the plaintiff seeks to pursue a direct action under § 22a-16 apart from its right to intervene in any administrative proceeding having to do with permitting.
(b)
In light of the arguments and counter arguments a good place to begin the discussion is a review of the complaint.
The relevant portions of the complaint read as follows:
4. Defendants are engaging in operations and maintaining conditions which are likely to have an unreasonable impact on the natural resources of the state in one or more of the following ways:
a. Defendants have unlawfully without a permit stockpiled pavement and/or asphalt millings and earth materials within the upland review area of inland wetlands on the Premises and have encroached upon coastal wetlands. Such stockpiled materials contain hazardous materials which are subject to release into the environment.
b. Defendants' stockpiled material has and is continuing to become airborne and transported to adjacent and nearby real property.
c. Defendants' stockpiled materials were deposited without sedimentation and erosion controls and thus are likely to run off and impair the adjacent wetlands with sediments and contaminants.
d. Defendants have and continue to power wash commercial vehicles on the Premises without proper and required wastewater capture and recycling controls.
e. Defendants have placed fill materials within the tidal wetlands on the site without permits or authorization, thereby encroaching on and destroying exiting adjacent wetlands.
Paragraph 5 refers to the fact that on August 10, 2005 Guilford's Wetland Enforcement Officer issued a notice of Inland Wetland Violations to Arrow Paving and an order to remove stockpiled materials on its premises. Paragraph 6 alleges the materials have not been removed, and the company has not ceased power washing commercial vehicles or controlled the airborne release of particulate matter — "said activities have increased."
Paragraph 7 says the "continuing unpermitted use of the premises in the above described manner is unlawful, has a natural tendency to cause harm and thus is a public nuisance. Paragraphs 8 and 9 basically ask that the nuisance be enjoined because the "plaintiff's rights in the public trust will suffer irreparable and immediate harm"; also there is no adequate remedy at law
Paragraph 10 relies on § 22a-16 stating the public trust in the state's natural resources are and have been unreasonably impaired and in this regard not limited to encroachment of tidal and inland wetlands and the release of particulate matter into surrounding wetlands and a residential neighborhood.
(c)
If examined closely the defendants really make two distinct arguments which, in the court's opinion, are not directly related factually or necessarily legally. It is argued that the claims here involve permit proceedings and thus do not provide standing for § 22-16 litigation because (1) they focus on permit violations and (2) they duplicate issues under consideration in a permit proceeding.
Although the plaintiff in its brief felt obliged to dispel any negative inferences which might be drawn against its position from Conn. Coalition Against Millstone v. Rocque, 267 Conn. 116 (2003), this court, at least, concludes that if anything Rocque supports the plaintiff's position as to the first argument raised by the defendants.
As the court notes on page 121 the purpose of the Coalition's requested relief "was to protect `the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.'" Interestingly the court seems to recognize the pollution factor as a given. At page 119 it says Millstone "utilizes seawater from Niantic to cool its three nuclear reactors and discharges the heated water containing radioactive and toxic wastes into Long Island Sound."
It is in this context that the Rocque plaintiff set forth the legal basis for the relief requested in its complaint and at footnote 10 at pp. 121-22, the court summarizes the complaint:
Paragraphs eight, nine and ten of the plaintiffs' complaint allege that Millstone's operations generate pollution. Paragraphs eleven through seventeen and paragraph twenty allege that the operations of the facility require a permit, that the permit expired in December 1997, that the permit has not been renewed and that Northeast filed an application for renewal of the permit 180 days prior to its expiration. Paragraph twenty-one alleges that the renewal application was invalid under § 4-182a(b) because Millstone was shut down and was not engaged in activities of a continuing nature at the time the application was filed. Paragraphs twenty-two through thirty allege that an emergency authorization improperly was issued to Northeast. Paragraphs thirty-five and thirty-six allege that the commissioner has no legal authority to approve the continued operation of Millstone following expiration of the 1992 permit and to issue the emergency authorizations. Paragraphs thirty-nine and forty allege that the activities of Millstone result, or are likely to result, in unreasonable pollution and that the action is brought pursuant to § 22a-16 for the protection of the public trust in the air, water and other natural resources from unreasonable pollution.
In deciding the Rocque plaintiff had no standing to bring an action under § 22a-16 the court at two points in its decision characterized the claim before it in the following way at footnote 20, page 140 the court referred to Fish Unlimited v. N.E. Utilities Service Co., 254 Conn. 1 (2000) and said that the plaintiffs in that case "made a claim of conduct with direct environmental consequences, unlike the plaintiffs in the present case, whose claim of unreasonable pollution is based on the fact that the facility is operating without a valid water discharge permit and emergency authorization."
At page 139 the Rocque court dismissed the plaintiffs' argument that "the commissioner has instituted numerous actions pursuant to § 22a-16 in which the court has held that unlawful activities that occur in the absence of permits or in violation of statutes, regulations and abatement orders create unreasonable pollution under CEPA" (Conn. Environment Protection Act). The plaintiffs cited for this proposition Keeney v. Old Saybrook, 237 Conn. 135, 140-41 (1990); Comm. of Environmental Protection v. Conn. Building Wrecking Co., 227 Conn. 175, 190 (1993), and Keeney v. LS Construction, 226 Conn. 205, 209 (1993). The court said the plaintiffs' argument based on these cases was unfounded:
In the cases cited by the plaintiffs, however, the claims of unreasonable pollution were directed primarily to the polluting activity itself, and not, as here, to the validity of an existing permit or authorization, a condition that does not directly threaten the public trust in the air, water, and other natural resources of the state under § 22a-16 id., pp. 139-40.
Based on this characterization of the plaintiffs' claim Rocque held "where the alleged conduct involves a permitting claim, there is no standing pursuant to § 22a-16 to bring the claim directly in the Superior Court, and the claim must be resolved under the provisions of the appropriate licensing statutes," id., p. 148. There the appropriate licensing law was § 22a-430 which give the Commissioner of Environmental Protection licensing authority.
Based on the foregoing discussion of Rocque, how can we characterize the claims and allegations of the complaint in this case, do they advance a permitting claim or do they rather make a claim of direct damage to the environment? Perhaps more exactly the problem is how should this question be answered. First it should be said that in examining a complaint "every presumption is to be indulged in favor of jurisdiction," LeConche v. Elligers, 215 Conn. 701, 709-10 (1990); Gurliacca v. Myers, 218 Conn. 531, 543 (1991).
The interpretative problem is not dissimilar to that raised when, for example, a court in a malpractice claim must decide whether the complaint sounds in contract or tort — sometimes critical on statute of limitation issues. In Legal Malpractice, Mallen Smith 5th ed. (2000), Vol 3 § 22.3, pp. 315-16 it says "The prevailing method is to determine the `essence', `substance' or `real nature' of the claim, no matter how labeled or alleged," see Sutera v. Estate of AA Washton et al., 234 Conn. L. Rptr. 388, 390 (2003).
The complaint in paragraph 4 alleges activities which have an "unreasonable impact on the environment then in subparagraph (a) does say the defendants have stockpiled material without a permit. But that subparagraph ends with a sentence claiming there are hazardous materials in the stockpiles subject to release. Every other of the four subparagraphs allege various environment hazards including stockpiling, power washing of commercial vehicles and placing of material in the wetlands without any reference to permits or the permitting process.
Paragraph 5 refers to the fact that Guilford's Wetland officer issued a notice of violations and an order to remove the stockpiles. Paragraph 6 alleges the stockpiles have not been removed and power washing continues at an increased rate. Paragraph 7 then says "continued permitted use of the premises in the above described manner has a natural tendency to cause harm and thus is a public nuisance."
By the very way the plaintiff has structured the complaint it does not posit prevailing on the mere fact that activities on the subject property are unpermitted or unlicensed activity. The thrust of the complaint, even in paragraphs referencing unpermitted activity is that actual harm is being caused to the environment. In other words this is not a complaint, as in Rocque making "allegations of a flawed licensing procedure," 267 Conn. at page 140. At footnote 21, page 141, the Rocque court further characterizes the case before it where no § 22a-16 standing was found in the following way. "Here the claim of unreasonable pollution is based on allegations that Millstone is operating without a valid permit and emergency authorization, a claim of improper conduct under the licensing statutes that does not directly threaten the environment."
In this case the plaintiff's claim is directed primarily at the alleged pollting activity itself and the mere fact that lack of a permit is alleged does not require that that view of the complaint be altered. Ventres v. Goodspeed Airport, 275 Conn. 105 (2005) refers to Rocque and interprets its holding in a way relevant to the problem before the court and summarizes the law on this point.
Relying on a long series of cases we had held that § 22a-16 does not confer standing to litigate decisions regarding permits that are within the exclusive jurisdiction of a state agency, we concluded that the trial court properly have dismissed the plaintiffs' claims. Id., 129-38. In doing so, we distinguished other cases in which we had determined that the plaintiffs had standing under § 22a-16 because, although the lack of an appropriate permit had been alleged, the plaintiffs had raised independent" claims of unreasonable pollution [that] were directed primarily to the polluting activity itself, and not . . . to the validity of an existing permit or authorization . . ." Id., pp. 139-40 (page references are to Rocque (emphasis by this court).Ventres then went on to cite three cases relied in Rocque as authority for its just stated position Keeney v. Old Saybrook, 237 Conn. 135 (1996); Comm. of Environmental Protection v. Conn. Building Wrecking, 227 Conn. 175 (1993); Keeney v. LS Construction, 226 Conn. 205 (1993). This court has examined the Supreme Court records of each of these cases, in particular the complaints — in each one there is an allegation of failure to secure permits and in Old Saybrook failure to comply with § 22a-428 orders but as Ventres notes this did not bar a claim under § 22a-16 since the thrust of the allegations were direct damage to the environment.
To return to the main point and to summarize the court's position, Lewis v. Planning Zoning, 275 Conn. 383 (2005), decided about a week after Ventres, confirms what was held in Rocque, the two Keeney cases and Connecticut Building Wrecking. For its view on standing it basically quotes from Rocque, id. 393 and then to focus on the facts and actual holding based thereon without reference to the logical constructs and hypotheticals to get there the court said the following at pages 393-94:
As we have indicated, the gravamen of the plaintiff's complaint is twofold: first, the wetlands permit that the commission had issued to Chelsea was invalid because the process pursuant to which that permit was issued was flawed, and, second, Chelsea unlawfully constructed a storm drainage system before obtaining the necessary permit. Neither claim affords the plaintiff standing to bring an action under § 22a-16 because each claim is based on the allegation that Chelsea is conducting its activities without a valid permit.
With respect to the plaintiff's first claim, his allegation of unreasonable pollution derives from and is wholly dependent on his contention that Chelsea's activities are unlawful because the permitting process was flawed. As we made clear in Connecticut Coalition, however, § 22a-16 does not confer standing on a plaintiff who seeks to challenge the validity of the permitting process. See id., 145-46, 148. Because the plaintiff's claim of unreasonable pollution is predicated entirely on his assertion of a defect in the permitting process, he lacks standing to bring that claim under § 22a-16.
The same is true with respect to the plaintiff's claim that Chelsea constructed a storm drainage system before obtaining the necessary permit. The crux of the plaintiff's claim is that Chelsea is unreasonably polluting the wetlands because it failed to obtain the necessary permit before constructing the storm drainage system, not that Chelsea's construction of the system has or likely will cause unreasonable pollution. Because the plaintiff makes no allegation that is sufficiently independent of his permitting claim, he has no standing under § 22a-16 to challenge the propriety of Chelsea's construction of the storm drainage system. Because the plaintiff has no standing under § 22a-16 to assert either of his claims, the action must be dismissed for lack of subject matter jurisdiction.
Here the allegations of unreasonable pollution are not wholly or perhaps even partially based on a flawed permitting process — the plaintiff will not prevail on its claims for injunctive relief unless it meets the task which it set for itself in the complaint — that unreasonable pollution is being produced at this site which threatens the environment.
(ii)
The other argument advanced by the defendants is that the motion should be granted because there is an overlap between the claims advanced here and issues being addressed in an ongoing permit process. In effect the defendants equate this "overlap" scenario with Rocque and its progeny that find a lack of § 22a-16 standing where a claim is based solely on a claim of unpermitted activity, as opposed to an allegation of direct harm to the environment. Nothing in the case law requires this result and such a view would severely limit the operation of the environmental protection laws. Such a view, at least in the court's opinion would make it difficult to analytically place and/or understand Section 22a-18(b) and Waterbury v. Washington, 260 Conn. 506 (2002). Section 22a-18(b) reads as follows:
(b) If administrative, licensing or other such proceedings are required or available to determine the legality of the defendant's conduct, the court in its discretion may remand the parties to such proceedings. In so remanding the parties the court may grant temporary equitable relief where necessary for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction and the court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency's decision is supported by competent material and substantial evidence on the whole record.
Certainly it cannot be true that if there is an area of environmental concern hypothetically subject to being regulated by a permit or licensing process that has not yet been instituted, a § 22a-16 remedy is not available. It would also seem to be true that Section 22a-18(b) contemplates a situation where no such permit or licensing activity has begun, a § 22a-16 action is brought and the court "in its discretion" can remand the parties to licensing procedures. This assumes the court can exercise its discretion not to make such a remand. The statute goes on to say that in so remanding the court can grant temporary injunctive relief — the court and licensing authorities would retain concurrent jurisdiction to act. But subsection (b) even goes beyond that. It says after such a remand "the court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given to the protection of the public trust in the air, water, or other natural resources of the state from unreasonable pollution, impairment or destruction and whether the agency's decision is supported by competent material and substantial evidence on the whole record."
Given the shared jurisdiction contemplated by § 22a-18(b) the court cannot say that a jurisdictional problem arises merely from the fact in a case such as this the permit or licensing machinery was already in some form of operation at the time the § 22a-16 action was brought.
Then we would have a statutory scheme, meant to be ameliorative, which says where there is an allegation of unabated pollution a court can issue temporary injunctive relief and monitor licensing agencies after it has remanded an action to licensing authorities but somehow, even though the same dangers to the environment are presented, there is a jurisdictional problem with a court exercising the same options of temporary relief and agency monitoring because the licensing and permitting authorities have started to act before a § 22a-16 suit has been filed.
All of this, for the court at least, does not translate into a jurisdictional problem. However, if a matter is brought under § 22a-16 in this context query whether the administrative agencies, acting at the same time as the court, should be given formal notice of this action with the right at some point to intervene. Or should defendants have a right to move for a stay of proceeding in the court, and if so under what circumstances — that the agency is about to act in a way favorable to protection of the environment and has the will and the power to enforce its orders — that the agency hearing the matter has access to more complete information expert and non-expert so its actions should be waited upon, etc?
Posing these questions indicates to the court that the statutory scheme does not require dismissal of this action but just a reasonable accommodation between the court and the administrative agencies dealing with or involved with allegations of direct damage to the environment.
In any event the motion to dismiss is denied.