Opinion
No. CV03 0473582
April 9, 2003
MEMORANDUM OF DECISION
Before the court is an application for temporary writ of mandamus: The applicant/plaintiff is Cross-Sound Cable Company, LLC ("Cross-Sound"). The respondent/defendant is Arthur J. Rocque, Jr., Commissioner of the Department of Environmental Protection of the State of Connecticut ("DEP"). The parties submitted the matter to the court on documentary evidence and their respective arguments and briefs. Both parties were granted permission to file briefs in excess of thirty-five pages.
I. Facts
From the documentary exhibits submitted by the parties, the following facts necessary for the disposition of this application are found.
Cross-Sound has been, for approximately two years, seeking to install and operate a bi-directional, high voltage, direct current and fiber optic electric transmission cable system across Long Island Sound, from New Haven, Connecticut to Brookhaven, Long Island, New York. It has applied for and received permits for the installation of the cable from the Federal Energy Regulatory Commission ("FERC"), United States Army Corps of Engineers (ACOE), the federal permitting authorities, regulatory authorities of the State of New York, and the State of Connecticut, Department of Public Utility Control, the State of Connecticut Siting Council and the State of Connecticut Department of Environmental Protection, state permitting authorities, each with different matters under their respective jurisdictions. The permits issued for the laying of the submarined electric transmission cable by these entities each had certain conditions, not necessarily in common with each other. Among those conditions was the DEP requirement that Cross-Sound "install the cable . . . no less than six feet below the seabed or to an elevation of -48 feet mean lower low water (MLLW), whichever is at a lower elevation relative to MLLW, within the boundaries of the Federal Navigation Channel in New Haven Harbor and to a minimum of six feet below the seabed of Long Island Sound outside of the Federal Navigation Channel." These same depths were required by ACOE in its permit granted to Cross-Sound Cable for the installation of the cable.
As a further condition of both the DEP and ACOE permits, installation of the cable underground in the New Haven Harbor could only be accomplished during certain time windows, April 1 to May 31 and October 1 to January 15. These time lines for work activity were designed to minimize the impact of the underwater construction on flounder populations and shellfish beds. The DEP permit grants Cross-Sound two years, from the granting of the permit to meet its conditions. The DEP permit was issued on March 17, 2002.
Cross-Sound commenced construction work on the submarined cable substation in the beginning of 2002. During the period of May 18 through May 28, 2002 Cross-Sound buried twenty-four miles of electric transmission cable under Long Island Sound. After the installation of the cable, Cross-Sound notified DEP that the cable was not buried to its required depth along its entire line and that of those sections not buried to depth, most lay in sediment, sand and clay; one section of the cable rested on hard rock. Cross-Sound has determined that the rest of the cable cannot be buried to required depth solely with the jetting tool that had been used to initially bury the cable in the Federal Navigational Channel. Consequently, it must obtain regulatory authority from DEP and the Army Corps of Engineers for other processes.
The DEP application and associated activities and applications of Cross-Sound to bury the cable across Long Island Sound from the New Haven Harbor has occurred against a backdrop of rising public debate about the appropriateness of these activities. Co-incident with Cross-Sound's interest in laying its energy transmission cable is the increased interest by other energy industry entities in utilizing the expanse of Long Island Sound from Connecticut to Long Island for the extension of energy product transmission from one state to the other. This increased interest has spurred public debate pitting questions about the wisdom of the use of this natural resource in this way against continuing concerns of energy providers surrounding their ability to provide for the pressing and rising needs of energy consumers of the region. Cross-Sound's cable, and each step in its permitting and construction processes, has been a central focus of this debate.
Cross-Sound's first application for a submarined cable, which would lay on a different route, was denied by the Connecticut Siting Council on March 28, 2001 after a finding that it would have caused excessive environmental damage. Cross-Sound filed the application which resulted in the present matter thereafter. An appeal from the approval of the Siting Council to this second application was taken by Richard Blumenthal, the Attorney General of the State of Connecticut. While he was unsuccessful in that appeal at the trial court, it is currently pending before the Supreme Court of the State of Connecticut. The laying of the cable commenced within days after the trial court decision which was rendered in May 2003.
The Attorney General had sought a stay of the Siting Council decision, pending appeal and that application for stay was denied by the trial court in that matter.
After the laying of the cable, and the notice that it was not laid to the permit required depth along its entire length, Cross-Sound provided notice by way of correspondence that it intended to commence commercial transmission of energy through the cable on August 2002 and that it intended to continue to comply with the permit requirements — that the cable would be buried to its required depth prior to the expiration of the permits for its construction. In response to this, the DEP and the Attorney General of the State of Connecticut applied to the Superior Court for a temporary injunction preventing a start up of electricity transmission through the cable by Cross-Sound in violation of the terms of the DEP permit. The matter was resolved by an agreement: Cross-Sound on the one hand agreed that it would "comply with the terms and conditions of its DEP structures and dredging permit before commencing operation of the cable" and DEP and the Attorney General, on the other hand, agreed that the injunction would not be pursed in court. This agreement before the court also provided, "Nothing in this statement intends to limit the right of any party to seek relief from this Court . . . Neither party waives any right that they have to challenge the meaning of the terms and conditions under the DEP permit or to seek waiver, change, or modification thereof from the Department of Environmental Protection in accordance with the law."
Roughly coincident with these activities, the Legislature of the State of Connecticut had undertaken to consider and act upon the issues confronting it and the people of the State surrounding these impending uses of Long Island Sound. It debated and on April 2003 passed a moratorium bill, Public Act 02-7, which prevented a consideration by state agencies of any applications for Sound crossings of cables and pipelines, and, voided any permits for such crossings that had been granted but the permitted activity had not been installed. The latter, as a matter of fact, was constituted by one entity only, Cross-Sound. Public Act 02-7 was vetoed by the Governor on April 19, 2002. On April 24, the Legislature considered and voted on the override of the veto which was unsuccessful. As noted above, the cable was then installed by Cross-Sound May 18 through 28, 2002.
The Legislature considered and passed a second moratorium bill, Public Act 02-95; it became law with the Governor's signature on June 3, 2002. Public Act 02-95 has been codified as General Statutes §§ 25-157 through 25-157c and § 16-241j. Effective June 3, 2002 and for the period of one year therefrom, "[n]otwithstanding any other provision of the general statutes, no state agency, including . . . the Department of Environmental Protection shall consider or render any final decision for any applications relating to electric power line crossings, gas pipeline crossings or telecommunications crossings of Long Island Sound . . ." The public act contains other provisions which, as necessary, will be related and discussed infra.
On January 15, 2003, Cross-Sound filed an application with the DEP for a Certificate of Permission ("COP"), which if granted would allow it to operate the electric cable while Cross-Sound pursued the burial of the cable to the required depths in the areas of the present noncompliance. The processes surrounding the application and consideration of an application for a certificate of permission are found at General Statutes § 22a-363b. DEP closed the COP application without acting upon it, stating in correspondence to Cross-Sound,
As you are aware, the moratorium established by Public Act 02-95 prohibits this Department from rendering a final decision on any application relating to utility crossings of Long Island Sound. Therefore, we are prohibited from issuing a final decision on any new application for an Individual Permit or a Certificate of Permission for Cross-Sound Cable until after the moratorium expires in June of 2003. Given that Section 22a-263b (d) of the Connecticut General Statutes requires that this Office render a decision on a COP application no later than 90 days after receipt and we are precluded from making a final decision within such time frame under this moratorium, this Office has closed your COP application.
This action ensued. Cross-Sound asserts that Public Act 02-95 does not apply to its application for a certificate of permission and, therefore, that this court should issue a temporary order of a writ of mandamus, directing DEP to consider and act upon the application. The applicant claims it has satisfied the standard for the issuance of such a writ of mandamus. Cross-Sound also argues in the alternative, that the application of Public Act 02-95 to it would be unconstitutional. DEP opposes this application, arguing that the legal standard for the issuance of a writ of mandamus has not been met. Further, DEP argues that Public Act 02-95 is not unconstitutional on its face, or as applied. Finally, DEP argues that as a matter of equity, the court should not issue a writ of mandamus against DEP and in favor of Cross-Sound.
Cross-Sound hastens to add that it does not request the court to direct a particular outcome to the application.
II. Law and Discussion
The Connecticut Superior Court is empowered to issue a writ of mandamus "in any case in which a writ of mandamus may by law be granted." General Statutes § 52-485 (a).
"Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000). "An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely." (Internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969).
"Even satisfaction of this demanding test does not, however, automatically compel issuance of the requested writ of mandamus . . . In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity." (Citation omitted; internal quotation marks omitted.) Hennessey v. Bridgeport, 213 Conn. 656, 659, 569 A.2d 1122 (1990).
"The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy." (Internal quotation marks omitted.) Honan v. Greene, 37 Conn. App. 137, 143, 655 A.2d 274 (1995). "If a public official or public agency has a duty to perform a particular act and fails in the discharge of that duty, a writ of mandamus is the proper remedy for compelling performance of the act." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 249, 794 A.2d 1016 (2002). "The duty it compels must be a ministerial one; the writ will not lie to compel the performance of a duty which is discretionary." Becchia v. Waterbury, 185 Conn. 445, 453, 441 A.2d 131 (1981). "[M]inisterial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000). "Furthermore, where a public officer acts within the scope of delegated authority and honestly exercises her judgment in performing her function, mandamus is not available to review the action or to compel a different course of action." Clark v. Gibbs, 184 Conn. 410, 419, 439 A.2d 1060 (1981).
The plaintiff argues that the defendant has a mandatory duty to consider the plaintiff's application for a COP within forty-five days of its receipt pursuant to General Statutes § 22a-363b (d). The plaintiff further argues that a moratorium placed on consideration of, and final decisions on, any application relating to electrical cable crossings does not apply to the plaintiff's request to modify its existing permit. Alternatively, the plaintiff contends that even if the moratorium does apply to its request for a COP to modify its permit, the moratorium violates the commerce clause, and the plaintiff's constitutional rights to due process and equal protection.
A. The Elements of the Mandamus Claim
The plaintiff first argues that the defendant has failed to discharge a mandatory duty to consider its request for a permit modification within forty-five days of its receipt as required by General Statutes § 22a-363b (d). Cross-Sound contends that the commission's refusal is not appealable, thereby leaving it without an adequate remedy at law, and that the plaintiff will incur irreparable harm by the denial of its rights under the permit to operate its cable, its statutory right to have its application for permit modification considered, lost revenues, costs and damages payable by the plaintiff associated with delay of the project, contractual penalties and potential liabilities to companies having transmission rights over the cable.
In opposition, the defendant argues that the plaintiff's application does not meet the criteria for issuance of a mandamus. Specifically, the defendant argues that the plaintiff does not have a clear legal right to having its request considered by the defendant because the moratorium in effect through the enactment of General Statutes § 25-157, explicitly prohibits such consideration. DEP alternatively argues that even if the moratorium does not prohibit the consideration of the plaintiff's request, the plaintiff nonetheless has no clear legal right pursuant to § 22a-363b since the cable was not buried to required depth which DEP asserts is an essential premise of the permit. Finally, DEP defends the matter pointing out that since the request for a COP is not for minor alterations or amendments to the permitted activity consistent with the permit, Cross-Sound has no clear legal right to the COP.
The resolution of whether General Statutes § 22a-363b imposes a mandatory duty on the defendant to consider the plaintiff's request for a COP rests upon the appropriate statutory construction of § 22a-363b. "The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . [W]e seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citation omitted; internal quotation marks omitted.) State v. Courschesne, 262 Conn. 537, 577 (2003). "In order to determine whether a statute's provision are mandatory we have traditionally looked beyond the use of the word "shall" and examined the statute's essential purpose." (Internal quotation marks omitted.) Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 446, 685 A.2d 670 (1996).
"The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 258 Conn. 680, 685, 784 A.2d 347 (2001). "Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory." Crest Pontiac Cadillac, Inc. v. Hadley, supra, 446. "It is the duty of courts to interpret statutes as they are written." Rutledge v. State, 63 Conn. App. 370, 380, 776 A.2d 477 (2001). "In addition, the statute must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation." Id. "Construction of a statute starts with an examination of the statutory text." Kindl v. Dept. of Social Services, 69 Conn. App. 563, 567, 795 A.2d 622 (2002). In reviewing the statutory text, "[c]ourts have determined that the word may conveys broad discretion." (Emphasis in original.) D'Amico v. Johnson, 53 Conn. App. 855, 863, 733 A.2d 869 (1999).
The plaintiff seeks to modify its permit pursuant to General Statutes § 22a-363b (a), which provides: "Routine maintenance of permitted structures, fill, obstructions or encroachments or routine maintenance of structures, fill, obstructions or encroachments in place prior to June 24, 1939, and continuously maintained and serviceable since that date shall be exempt from the requirements of obtaining certificates of permission or permits pursuant to section 22a-363a, this section or section 22a-361. The following activities may be eligible for a certificate of permission, in accordance with the provisions of subsections (c) and (d) of this section . . . (6) minor alterations or amendments to permitted activities consistent with the original permit. (Emphasis added)."
Subsection (c) of § 22a-363b provides that "[t]he commissioner shall issue such a certificate if the eligible proposed activity is consistent with a permit issued pursuant to section 22a-33 or 22a-361 or was in place prior to June 24, 1939, and continuously maintained and serviceable since such time . . . If the commissioner finds that the structure, fill, obstruction or encroachment is not in substantial compliance with the permit or authorization under which a certificate of permission is requested, and is not consistent with applicable standards and criteria, he shall not issue a certificate of permission. For the purposes of this subsection, standards and criteria are those specified in sections 22a-33 and 22a-359 and regulations adopted pursuant to section (c) of said section 22a-361, in the water quality standards of the Department of Environmental Protection, and in sections 22a-92 and 22a-98 for activities within the coastal boundary, as defined in section 22a-93."
Subsection (d) provides that "[t]he commission shall, within forty-five days of receipt of a request for a certificate of permission, issue such certificate or notify the person making such request that (1) additional information or an application for a permit pursuant to section 22a-32 or section 22a-361 is required or (2) the structure, fill, obstruction or encroachment is not eligible for a certificate of permission . . . If the commissioner fails to respond within forty-five days of receipt of a request, the certificate of permission shall be deemed approved, except that no certificate of permission for dredging, activities located within tidal wetlands, as defined in section 22a-29, or activities conducted without prior authorization shall be deemed approved by virtue of the commissioner's failure to respond."
The legislature, by the very construction of § 22a-363b intended to vest the commissioner with discretion in determining which activities qualify for a COP and when he may grant a COP for those activities.
Use of the word "may" in describing the activities for which a certificate of permission is appropriate in § 22a-363b (a), and in authorizing approval, modification and approval, or denial by the commissioner in § 22a-363b (c), gives the commissioner broad discretion. See D'Amico v. Johnson, supra, 53 Conn. App. 864. The legislative intent to give the commission broad discretion is also confirmed by the phrase, contained in § 22a-363b (c), "if the commissioner finds," in determining whether to issue a COP. The layout of these provisions in their respective context makes clear that the COP decision making reposes a large amount of discretion in the defendant.
It is noted however, that subsection (d) of § 22a-363b mandates that the defendant provide a response to the applicant within forty-five days of receipt of the request, or ninety days if more information is requested. The use of the word "shall" in § 22a-363b (d) is qualified by language that invalidates action taken after the commissioner does not respond within the statutory time period, that is, the provision that deems a request automatically approved if the commissioner does not respond to a request within the statutory time period. See Crest Pontiac Cadillac, Inc. v. Hadley, supra, 444.
The legislative history of General Statutes § 22a-363 reveals that the statute was enacted to create an "expedited procedure for the granting of permits to conduct maintenance . . . and repairs that are routine in nature, and also to provide provisions for the Commissioner of Environmental Protection to be able to act rapidly in the case of an emergency that may have been caused by a storm or some other similar occurrence." 33 H.R.Proc., Pt. 16, 1990 Sess., p. 5437, remarks of Representative Levin. "Under this bill, simple maintenance of any dock or dredging under a permit could be done without the necessity of any certificate of permission, nor the necessity of a full blown hearing." 33 S.Proc., Pt. 4, 1990 Sess., p. 994, remarks of Senator Spellman.
The legislative history further reveals that the commissioner of the DEP may use its discretion to make evidentiary findings when determining if the activity for which a COP is sought is minor or is consistent with standards, criteria or the original permit. In response to a question posed by Representative Krawiecki regarding findings by the commissioner, Representative Levin, the proponent of the bill, stated that the findings indicated in the bill are "evidentiary findings that would be necessary by the . . . Commissioner . . . in accordance with the rules of administrative procedure." 33 H.R.Proc., Pt. 16, 1990 Sess., p. 5443.
This examination of statutory language and legislative history inexorably leads to the conclusion that while §§ 22a-363b (a) and (c) allow the defendant discretion in determining whether alterations or amendments are minor and consistent with an existing permit and whether a COP may properly be issued, § 22a-363b (d) requires the defendant to respond to a request for a COP within forty-five days of its receipt and provides that, absent an exception, the request will be automatically approved if no response is given. Here, the plaintiff's activity involves dredging in order to bury the cable and thus falls within the exception to automatic approval.
A review of the legislative history and statutory language establishes that the defendant has a mandatory duty to issue a response to the plaintiff's request. In the present case, however, a subsequent enactment of the legislature has intervened. The legislature enacted General Statutes § 25-157, specifically to prohibit the consideration of, and final decisions on, any application related to electric transmission cable, natural gas and telecommunication crossings beneath Long Island Sound. Therefore, the disposition of the plaintiff's argument turns on whether the plaintiff's request is an application related to an electric transmission cable crossing, such that § 25-157 prohibits the commissioner from considering and rendering a final decision.
The plaintiff argues that its request for a COP is merely for "a minor, no impact change to its permit that requires no work in the Sound and poses no threat of environmental or navigational harm." The plaintiff contends that "the COP procedure is used for ongoing adjustments to pending projects for a permit [that] had already been issued," and that the moratorium was not intended to apply to such minor approvals for existing projects.
The court notes that no definition of "application" in the context of the COP process explicitly exists within the statute or case law.
The common sense meaning of the term "application" is found in Merriam Webster's Collegiate Dictionary, (10th Ed. 1993), which provides that "application" is a "REQUEST, PETITION . . . A form used in making a request." (Emphasis in original.) Black's Law Dictionary (6th Ed. 1990) defines an "application" as "The act of making a request for something." (Emphasis added.) Thus, the terms "application" and "request" are considered as one in the same and may be used synonymously. Indeed, General Statutes § 22a-636b, which governs the issuance of a COP, makes such interchangeable use of the terms "application" and "request" interchangeably.
General Statutes § 22a-363b (d) provides in pertinent part: "The commissioner shall, within forty-five days of receipt of a request for a certificate of permission . . . [T]he commissioner shall make a determination on the application . . ." (Emphasis added.)
In addition, Section 22a-3a-2 of the Regulations of Connecticut State Agencies provides: "As used in these Rules of Practice: `Application' means a request for a Department license or renewal thereof, for a modification of a Department license if the modification is sought by the licensee . . . These Rules of Practice govern practice in all Department proceedings unless otherwise provided by law, except that other procedural regulations of the Department which are more stringent than these Rules of Practice shall take precedence, and other procedural regulations of the Department which impose requirements in addition to those imposed by these Rules of Practice shall also apply." Section 22a-3a-2 (2) further provides that the term "license" shall be defined as it is defined in General Statutes § 4-166. Section 4-166, in turn, provides that " `[l]icense' includes the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law, but does not include a license required solely for revenue purposes." Here, the plaintiff's permit is not a license required solely for revenue purposes. It is a permit required to conform with criteria that protects the environment from the hazards that accompany the installation of cables beneath the seabed. Thus, the definition of "license" is applicable to the plaintiff's permit.
The process by which the plaintiff may request a COP is in the form of an application. The plaintiff submitted a Department of Environmental Protection standardized form, DEP-OLIS-APP-200, to request a COP. This form, on its face, uses the term "application" no less than ten times. Id. The form's title, "Office of Long Island Sound Programs Certificate of Permission Application Form" clearly establishes that an application is being made. (Emphasis added.) Id.
The defendant ordinarily has a mandatory duty to respond to a COP request. The statutory language of General Statutes § 25-157, however, imposes a moratorium on consideration of, and final decisions on, " any application related to electric power line crossings . . ." (Emphasis added.) Here, the plaintiff submitted an application form, requesting a COP to modify a permit that had been granted to allow the plaintiff to install an electric power line beneath and across Long Island Sound. The court concludes that this request for a COP by Cross-Sound is an application related to an electric power line crossing within the meaning of General Statutes § 25-157.
The second prong for determination of whether a writ of mandamus may issue is whether the party applying for the writ has a clear legal right to have the duty performed. See Miles v. Foley, supra, 253 Conn. 391. "Mandamus neither gives nor defines rights which one does not already have . . . It acts upon the request "of one who has a complete and immediate legal right; it cannot and does not act upon a doubtful and contested right." (Emphasis added; internal quotation marks omitted.) Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 533-34, 450 A.2d 369 (1982). Cross-Sound does not have a clear legal right to consideration and a final decision on its COP application since the moratorium effectively stays any obligation on the part of the defendant to consider or render a final decision on any application related to electrical crossings, and thus, the plaintiff's request. The imposition of the moratorium by the legislature prevents a complete and immediate legal right for the plaintiff to have its request considered.
It is noted that the plaintiff does, however, meet the third requirement for a mandamus to issue. Here, other than the passage of time, and the natural termination of the moratorium, the plaintiff has no adequate legal remedy aside from a mandamus. Thus, having satisfied two of the three conditions necessary for a writ of mandamus to be issued, the only obstacle is the imposition of the moratorium. Accordingly, the court will go on to consider the plaintiff's challenges on constitutional grounds for a full and complete resolution of all of the issues raised before the court.
B. Constitutional Attacks on the Moratorium Bill
The plaintiff argues that should the court determine that the moratorium applies to its request for a COP, the moratorium would revoke continued DEP authority and effectuate an unconstitutional taking, would undermine the "substantial investment" the plaintiff has made in the project, and would deprive the plaintiff of its substantive due process rights protected under the federal and state constitutions in the face of no legitimate government objective. Cross-Sound contends further that applying the moratorium to its request for a COP has a retroactive effect which interferes with the plaintiff's existing rights under its original permit. The plaintiff argues that it has a protected property right in the benefits of its DEP permit, and other state and federal approvals thus far obtained; it characterizes this protected property right as "expectations of operating the cable, rightfully based on the permits granted by multiple state agencies . . ."
These constitutional claims are challenged by the defendant. DEP argues that the permits possessed by Cross-Sound, including its DEP permit do not grant it a property interest in a COP where it has no clear legal right to a modification of its permit by COP by virtue of the fact that the commissioner has discretion to deny a permit modification request. DEP denies that General Statutes § 25-157 has retroactively affected the plaintiff's property interests in its permit. DEP also challenges the assertion that the moratorium constitutes an unconstitutional taking.
1. The Property Interest Claim CT Page 4481
"A `property interest' may take many forms, and, while it is clear that the term extends `well beyond actual ownership of real estate, chattels, or money,' it is equally clear that it does not include mere need, desire or unilateral expectation. See Board of Regents v. Roth, 408 U.S. 564, 572, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548." Millard v. Connecticut Personnel Appeal Board, 170 Conn. 541, 546, 368 A.2d 121 (1976).
"The due process provisions of the state and federal constitutions generally have the same meaning and impose similar constitutional limitations." Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). In the present case, "[a] constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights." Grimes v. Conservation Commission, 243 Conn. 266, 271-72, 703 A.2d 101 (1997).
The due process clause of the fourteenth amendment to the United States constitution provides in relevant part: "No State shall . . . deprive any person of life, liberty or property, without due process of law . . ."
Article first, § 8, of the Connecticut constitution provides in part: "No person shall be . . . deprived of life, liberty or property without due process of law . . ."
The Connecticut Supreme Court has "adopted the Second Circuit Court of Appeals' `clear entitlement' test" for guidance in land use cases when determining whether a due process claim, which mandates the possession of a constitutionally protected property interest as a threshold requirement, is sufficiently stated. Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 321, 627 A.2d 909 (1993). Although the facts in Kelley Property Development, Inc. involve the determination of permit applications by a municipal land use agency, the analysis is equally applicable under the facts of the present case, which involve a permit issued by a state administrative agency. (If anything, it is generous to extend the Kelley analysis to a situation where the applicant does not even own the land under which the permitted activity occurs.)
"The clear entitlement test mandates the possession of a constitutionally protected property interest as a threshold requirement for a successful substantive or procedural due process claim . . . If a claimant does not establish a constitutionally protected interest, the due process analysis ceases because no process is constitutionally due for the deprivation of an interest that is not of constitutional magnitude. If, however, a due process claimant does establish a constitutionally protected interest, he or she may then seek to establish other required elements of the due process claim, such as reliance in inappropriate procedures or arbitrary or oppressive conduct." (Citations omitted; internal quotation marks omitted.) Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 321-22.
"The clear entitlement test asks whether there is a certainty or a very strong likelihood that the application in question would have been granted, but for the wrongful conduct of the local officials . . . A very strong likelihood means not simply a high probability of approval, but rather a virtual assurance of approval because any discretion is narrowly circumscribed . . . Application of the [clear entitlement] test must focus primarily on the degree of discretion enjoyed by the issuing authority, not on the estimated probability that the authority will act favorably in a particular case." (Citations omitted; internal quotation marks omitted.) Kelley Property Development, Inc. v. Lebanon, supra, 226 Conn. 322-23. "As a general rule, entitlement turns on whether the issuing authority lacks discretion to deny the permit, i.e., is required to issue it upon ascertainment that certain objectively ascertainable criteria have been met." (Emphasis in original; internal quotation marks omitted.) Harlan Associates v. Village of Mineola, 273 F.3d 494, 504 (2d Cir. 2001); see also, Carr v. Bridgewater, 224 Conn. 44, 60, 616 A.2d 257 (1992).
The plaintiff's permit was issued pursuant to General Statutes § 22a-359 through 22a-363 (f). Section 22a-361 (b) provides in pertinent part: "Following . . . [a] notice and comment period the commissioner may in whole or part, approve, modify and approve, or deny the application." (Emphasis added.) As discussed supra, the word may conveys broad discretion." (Emphasis in original.) D'Amico v. Johnson, supra, 53 Conn. App. 864. The statute does not require the defendant to issue a permit.
The express terms of the permit itself limit the reliance that Cross-Sound can reasonably place upon its terms to claim expectation interests. "[O]ne of the most valuable characteristics of the bundle of rights commonly called `property' is `the right to sole and exclusive possession — the right to exclude strangers, or for that matter friends, but especially the Government.'" (Emphasis in original; internal quotation marks omitted.) Mitchell Arms, Inc. v. United States, 7 F.3d 212, 215 (Fed. Cir. 1993).
The permit issued to the plaintiff provides in pertinent part: "This permit may be revoked, suspended, or modified in accordance with the applicable law . . . This permit is not transferable without prior written authorization of the Commissioner . . . This permit is subject to and does not derogate any present or future property rights or powers of the State of Connecticut, and conveys no property rights in real estate or material nor any exclusive privileges, and is further subject to any and all public and private rights and to any federal, state or local laws or regulations pertinent to the property or activity affected hereby." The permit, by its express terms, does not create a reasonable expectation on the part of the plaintiff that either DEP will be limited in regulating the installation of transmission cables beneath the waters of Long Island Sound, or, that its request for modification must be considered in the face of subsequent legislation expressly barring it such consideration.
Most importantly, the legislation that imposes the moratorium, General Statutes §§ 25-157 through 25-157c, does not affect the rights of the plaintiff to engage in the activity authorized by the permit. The permit is valid until March 17, 2005; the moratorium applies only to pending and future applications. Finally, General Statutes § 25-157 explicitly prohibits the defendant from considering and rendering a final decision on the plaintiff's request for a COP; there is no likelihood that the request would be granted. Even if the moratorium were not in place, the decision whether to grant a COP is in the sound discretion of DEP. Therefore, even from that perspective, the plaintiff fails to satisfy the Kelley clear entitlement test.
The plaintiff has failed to establish a property right in the original permit that is defeated by the moratorium, or a property right to a modification of that permit; accordingly, it has failed to meet the threshold requirement for establishing a due process claim.
Had the plaintiff established a property right in the permit or a modification thereof, the plaintiff would nonetheless fail in its substantive due process claim under the rational basis test.
The rational basis test applies to substantive due process claims that do not infringe upon fundamental rights. Ramos v. Vernon, 254 Conn. 799, 840, 761 A.2d 705 (2000). "Lawful businesses affecting the public health, safety and welfare may be regulated under the police power of the state . . . In exercising that police power the legislature has a broad discretion, both in determining what the public welfare requires, and in fashioning legislation to meet that need . . . The court's function in examining the constitutionality of police legislation regulating the conduct of a business is to decide whether the enactment serves some need of the public health, safety, convenience and welfare in a reasonable and impartial way . . . The legislation and the prohibition imposed must have some rational relationship to the preservation and promotion of the public welfare . . . If it meets this test, it satisfies the constitutional requirements of due process and equal protection of the laws." (Citations omitted; internal quotation marks omitted.) C H Enterprises, Inc. v. Commissioner of Motor Vehicles, 167 Conn. 304, 307-08, 355 A.2d 247 (1974).
"Under the rational basis test, [t]he court's function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way." (Internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 143-44, 717 A.2d 747 (1998). "Constitutional attacks on the rationality of economic or social welfare legislation must rebut the presumption of constitutionality that attaches to such legislation. [T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way." (Internal quotation marks omitted.) Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 299, 554 A.2d 1065 (1989).
"[A] party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt . . . While the court may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case . . . Every presumption is to be given in favor of the constitutionality of the statute." (Citations omitted; internal quotation marks omitted.) Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316, 640 A.2d 101 (1994).
An examination under the rational basis test of the legislative enactments, General Statutes §§ 25-157 through 25-157c, requires a consideration of the legislative objectives and statutory framework in existence at the time of their passage.
The legislature has historically and consistently identified state economic, social and health interests consistent with protection of Long Island Sound and its coastal areas as a valuable resource of the state.
General Statutes § 22a-91, enacted in 1978, states: "The General Assembly finds that . . . (1) The waters of Long Island Sound and its coastal resources . . . form an integrated natural estuarine ecosystem which is both unique and fragile; . . . (3) The coastal area represents an asset of great present and potential value to the economic well-being of the state, and there is a state interest in the effective management, beneficial use, protection and development of the coastal area; . . . (5) The coastal area is rich in a variety of natural, economic, recreational, cultural and aesthetic resources, but the full realization of their value can be achieved only by encouraging further development in suitable areas and by protecting those areas unsuited to development; . . . (7) Unplanned population growth and economic development in the coastal area have caused the loss of living marine resources, wildlife and nutrient-rich areas, and have endangered other vital ecological systems and scarce resources."
The legislative history of the moratorium bill, General Statutes § 25-157, finds similar concerns expressed during consideration of its merits. "[T]he State of Connecticut . . . is noted for having the second largest shellfish industry in the United States . . . [The state has] a fishery . . . that is very important — fin fishery and [shellfish]." Conn. Joint Standing Committee Hearings, Environmental, Pt. 2, 2002 Sess., p. 000879, remarks of Senator George Gunther. Testimony was also presented that provided documentation of damage incurred during the submarined placement of a gas pipeline ten years ago to one area in Long Island Sound. The area has not yet recovered. See Conn. Joint Standing Committee Hearings, supra, pp. 000881, 000897. The legislature further considered that seven transmission lines currently exist in the seabed, and there are many other applications expected for use of the sea bed. Id., p. 000880. Stated by Senator Gunther: "That bottom out there has taken millions and thousands of years to develop . . . When you take and liquify that bottom . . . [i]t is never restored." 45 S.Proc., Pt 13, 2002 Sess., p. 002205. The legislature acted to approve General Statutes §§ 25-157 through 25-157c, in a nondiscriminatory manner: it included all projects in Long Island Sound and those on land so that planning for future use could be accomplished in a comprehensive and environmentally sound manner. Senator McKinney, in support of the bill, stated: "[W]e are now at the point where we are going to pass a moratorium on Sound projects, a moratorium on overhead transmission lines and developing, hopefully, a statewide energy plan which will help us deal with our real energy needs in an environmentally friendly, and hopefully, consumer friendly way." Id., p. 002213.
The state has a legitimate interest in controlling development in and around its fisheries, seabed and shoreline, to provide healthy food products, clean water along its shoreline, and a reliable, environmentally safe source of energy for its constituents. The legislature did not target the plaintiff specifically, but identified current and future threats to its legitimate interests from several sources and sought to have a long term plan to protect those interests. The one-year moratorium imposed by General Statutes §§ 25-157 through 25-157c halts all new activity related to electrical cable, gas pipeline and telecommunication burials in Long Island Sound, to assess the environmental impact of installing such crossings, and to formulate a plan to protect the fisheries and the environmental, economic and energy interests of the state. It is a temporary, limited prohibition that is rationally related to legitimate state interests in maintaining healthy fisheries, health of the seabed and shore, and energy needs for the health and welfare of the people of the state.
2. Taking Claim
Cross-Sound additionally argues that the moratorium effects an unconstitutional taking of its vested property rights in the permit and raises the constitutional concerns that Governor John G. Rowland cited in his veto of the prior moratorium bill, P.A. 02-7. DEP counters that no taking of the plaintiff's property occurred.
Public Acts 2002, No. 02-7 § 3(b) provided: "Notwithstanding any provision of the general statutes or any approval received pursuant to any other provision of law prior to the effective date of this section, no electrical power line crossing shall be constructed within Long Island Sound for a period of one year to allow for a comprehensive environmental assessment and plan to be completed. Nothing in section 2, 3 or 4 of this act shall be construed to affect projects in the mile-wide corridor across Long Island Sound, from Norwalk to Northport, New York, presently occupied by electric cables that cross the sound." Governor John G. Rowland vetoed Public Act 02-7, in part, because he felt it was unconstitutional in that it retroactively prevented one project from moving forward after receiving all required permits, while selectively allowing another project to proceed. Governor's Veto Message, April 19, 2002, pp. 1-2. The Governor thereafter signed Executive Order No. 26, which provided for the creation of a task force to study environmental impacts of electric and gas crossings in Long Island Sound, and permitted review of projects before state agencies but prohibited those agencies from rendering final determinations until the task force submitted its report on January 15, 2003. See, Executive Order No. 26, April 12, 2002.
"[B]oth the fifth amendment to the United States constitution, as applied to the states through the due process clause of the fourteenth amendment, and article first, § 11, of our state constitution, provide that private property shall not be taken for public use without just compensation." Northeast Connecticut Economic Alliance v. ATC Partnership, 256 Conn. 813, 848, 776 A.2d 1068 (2001). The plaintiff has not provided an independent analysis of its taking claim under the Connecticut state constitution. For purposes of this action, the court will assume, without deciding, that the plaintiff is entitled to the same level of protection under article first, § 11, of the state constitution as it is under the fifth amendment to the federal constitution. See Cohen v. Hartford, 244 Conn. 206, 217 n. 18, 710 A.2d 746 (1998).
"All private property is held subject to the police power of the state . . . and its use may be regulated in the interest of the public health, safety or welfare . . . The concept of the public welfare is broad and inclusive . . . The values it represents are . . . physical [and] aesthetic as well as monetary . . . Thus, the police power properly may be used to promote the economic welfare of the community." (Citations omitted; internal quotation marks omitted.) Cohen v. Hartford, supra, 244 Conn. 218 (municipal regulation limiting street access as part of redevelopment efforts is a legitimate use of police power to advance economic, aesthetic and safety-related goals). Moreover, "enforceable rights sufficient to support a taking claim cannot arise in . . . an area [subject to pervasive government control because] when a citizen voluntarily enters such an area, the citizen cannot be said to possess the right to exclude." Mitchell Arms, Inc. v. United States, supra, 7 F.3d 212.
A threshold matter in determining a takings claim is whether the plaintiff enjoys a constitutionally protected property interest. The court has already decided that the plaintiff has failed to establish such a property interest in its permit, collateral benefits to that permit, or any reasonable investment-backed expectation of modifying the permit. Further, the granting of permits for dredging and burying cable in Long Island Sound is an area that is subject to pervasive governmental control. The court finds that the plaintiff has failed to meet the threshold requirement for a sufficient takings claim under the federal and state constitutions.
Furthermore, this court notes that Governor Rowland's veto message, raised by Cross-Sound, is not a binding legal authority on this issue. Also, Cross-Sound's contention that the present moratorium gives rise to objections raised by Governor Rowland is misplaced because those objections were raised against a separate and distinct bill. It was certainly within the Governor's power to raise those same objections against the current moratorium, had those issues remained a concern; yet, the Governor did not do so.
3. Equal Protection Claim
The plaintiff next argues that the moratorium imposed by General Statutes § 25-157, on its face and as applied, violates its rights to equal protection under the fourteenth amendment to the United States constitution. The plaintiff contends that the moratorium "specifically exempts [the Connecticut Light and Power Co.] cable replacement project . . . while "purporting to impose a moratorium on the permitting of other cable crossings," resulting in disparate treatment of the plaintiff compared to similarly situated entities with no rational basis to further a legitimate government objective. The defendant responds that the "legitimate government purpose to the legislation inheres in the very text of the moratorium: it is explicitly designed to protect the public health, safety and welfare from uncontrolled and incompletely-vetted energy projects under Long Island Sound by calling for the preparation of a comprehensive environmental assessment and plan prior to issuance of any further approvals." The defendant contends further that the imposition of the moratorium is "a completely rational legislative balancing of competing needs and goals."
The fourteenth amendment of the United States constitution provides in pertinent part that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."
"[T]he challenge of a statute on constitutional grounds always imposes a difficult burden on the challenger . . . [E]very statute is presumed to be constitutional . . ." (Internal quotation marks omitted.) Donahue v. Southington, 259 Conn. 783, 794, 792 A.2d 76 (2002). "The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). "When social or economic legislation is at issue, the Equal Protection Clause allows States wide latitude . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." (Citations omitted.) Id.
"When a statute is challenged on equal protection grounds, whether under the United States constitution or the Connecticut constitution, the reviewing court must first determine the standard by which the challenged statute's constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest . . . If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge." (Internal quotation marks omitted.) Donahue v. Southington, supra, 794.
In the present case, the moratorium legislation does not create a suspect classification, nor does it impinge upon a fundamental right. Therefore, the analysis of this constitutional challenge to General Statutes § 25-157 must be performed under the rational basis test.
Under a rational basis analysis, the court "must decide whether the classification and disparate treatment inherent in [the] statute bear a rational relationship to a legitimate state end and are based on reasons related to the accomplishment of that goal . . . In general, the Equal Protection Clause is satisfied so long as there is plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decision maker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational." (Citations omitted; internal quotation marks omitted.) Donahue v. Southington, supra, 259 Conn. 795. "[A] classification neither involving fundamental rights nor proceedings along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose." (Internal quotation marks omitted.) Central State University v. American Assn of University Professors, 526 U.S. 124, 127-28, 119 S.Ct. 1162, 143 L.Ed.2d 227 (1999).
As noted, General Statutes § 25-157 imposes on all state agencies a moratorium prohibiting the consideration of, or final decision on, any application relating to electric power line, gas pipeline, or telecommunications crossings of Long Island Sound. The legislation exempts applications relating solely to the maintenance, repair or replacement necessary for the repair of existing lines or facilities currently in use to provide service to customers residing off the Connecticut coast, and exempts the repair project for the existing electrical power line crossing from Norwalk, Connecticut, to Northport, New York. Additionally, P.A. 02-95 § 2, codified as General Statutes § 16-244j imposes a moratorium on final decisions for any applications relating to electric transmission lines on land from Bethel, Connecticut, to Norwalk, Connecticut.
See footnote 1.
General Statutes § 16-244j provides in part:
Notwithstanding any other provision of the general statutes, no state agency . . . shall render a final decision for any applications relating to electric transmission lines from Bethel to Norwalk including, but not limited to, applications that are pending or received on and after June 3, 2002, until February 1, 2003. During such interim period, the Institute for Sustainable Energy shall chair and convene a working group . . . and develop a comprehensive assessment and report on: (A) The economic considerations and environmental preferences and appropriateness of installing such transmission lines underground or overhead; (B) the feasibility of meeting all or part of the electric power needs of the region through distributive generation; and (C) the electric reliability, operational and safety concerns of the region's transmission system and the technical and economic feasibility of addressing those concerns with currently available electric transmission system equipment . . . Any applicant that elects to proceed with its application for an electric transmission line from Bethel to Norwalk before any state agency . . . during the interim period . . . shall accrue no legal rights or financial entitlements by proceeding with its application.
The statutory language of § 25-157 establishes that the exemptions to the moratorium are applicable only to established crossings and facilities that are currently supplying customers. In the present case, although Cross-Sound placed a cable beneath Long Island Sound, it has not done so in compliance with the burial depth requirements of its permit. Therefore, it is not qualified or approved to supply customers by the very terms of its permit. The plaintiff is not similarly situated to those entities that have met their permit requirements, received approval for operation, and desire further permission for necessary maintenance, repair or replacement of their existing lines.
Additionally, as discussed earlier, the Legislature has identified legitimate state interests in protecting its waters, seabed and coastline of Long Island Sound for environmental, economic, health and safety reasons, and identified damage that has been incurred by those resources as a result of the prior installation of other crossings. The moratorium placed on future or pending applications relating to electrical, gas or telecommunication crossings of Long Island Sound and their transmission facilities for a one year duration to create a task force to study environmental impacts on these types of installations and to develop standardized criteria for granting permits bears a rational relationship to a legitimate state goal of protecting Connecticut's valuable resources; it is based on methods related to accomplishing that protection.
The moratorium imposed by General Statutes § 25-157 does not violate the equal protection clause of the fourteenth amendment to the United States constitution.
4. Commerce Clause Claim
Cross-Sound claims that the moratorium as applied to its cable project affects interstate commerce because it results in the inability of it to operate its cable to bring electricity to Long Island. Since the moratorium bill affects interstate commerce, Cross-Sound argues that upon a balancing of burdens, the scales tip in its favor operation of the cable because it does not produce any environmental harm, while providing energy needed by the public. Conversely, it is plaintiff's position that the moratorium imposes a burden on the plaintiff, an out-of-state economic interest, while alleviating any burden on Connecticut Light Power Co. (CLP), an instate economic interest, without a legitimate basis to do so. Finally, the plaintiff argues that if all states enacted the same legislation, the aggregate effects of such legislation would place an undue burden on interstate commerce.
DEP asserts that the moratorium is not discriminatory, and that whatever burdens it places on interstate commerce are not clearly excessive in relation to the statute's public benefits. The defendant further argues that the commerce clause protects the interstate market, not particular interstate firms, such as the plaintiff, from prohibitive or burdensome regulations. Finally, since the moratorium bill applied to all cable and pipeline applications proposed across Long Island Sound, whether interstate or intrastate, and regardless of ownership interests, the commerce clause has not been violated.
"The Commerce Clause provides that `[t]he Congress shall have Power . . . [t]o regulate Commerce . . . among the several States.'" Oregon Waste Systems, Inc. v. Dept. of Environmental Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). "Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a `negative' aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce." (Internal quotation marks omitted.) Id.
"[T]he first step in analyzing any law subject to judicial scrutiny under the negative Commerce Clause is to determine whether it regulates evenhandedly with only incidental effects on interstate commerce, or discriminates against interstate commerce . . . [D]iscrimination simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." (Citations omitted; internal quotation marks omitted.) Id., 99. "State laws discriminating against interstate commerce on their face are virtually per se invalid." (Emphasis in original; internal quotation marks omitted.) Camps Newfound/Owatonna, Inc. v. Harrison, 520 U.S. 564, 575, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997). In such situations, "the dormant Commerce Clause [requires] justifications for discriminatory restrictions on commerce [to] pass the strictest scrutiny." (Internal quotation marks omitted.) Fulton Corp. v. Faulkner, 516 U.S. 325, 345, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) "A state statute that clearly discriminates against interstate commerce is . . . unconstitutional unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism." (Internal quotation marks omitted.) Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353, 359, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992). "By contrast, nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." (Internal quotation marks omitted.) Oregon Waste Systems, Inc. v. Dept. of Environmental Quality, supra, 99.
"In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when conferring upon Congress the regulation of commerce, . . . never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country." (Internal quotation marks omitted.) Huron Cement Co. v. Detroit, 362 U.S. 440, 443-44, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960).
It is undisputed that the transportation of electricity from Connecticut to Long Island Sound constitutes interstate commerce that falls under the protection of the commerce clause. As stated earlier, the moratorium imposed by P.A. 02-95, codified in pertinent part in General Statutes § 25-157 and § 16-244j, prohibits consideration of, and final decisions on, any applications related to electrical, gas, or telecommunications crossings beneath Long Island Sound, and on final decisions for any application related to electric transmission lines on land from Bethel, Connecticut to Norwalk, Connecticut. The moratorium exempts electrical, gas or telecommunications crossings that currently supply service to customers, allowing those entities to repair, replace as needed for repair, and maintain the existing cables; and specifically exempts a project to replace existing electrical cables that cross the sound from Norwalk, Connecticut to Northport, New York. On its face, the statute is not discriminatory. It prohibits consideration and final determination of any application related to electric, gas or telecommunication crossings, regardless of whether the applicant is in-state or foreign. Moreover, the exemptions do not apply only to in-state entities or those serving only in-state customers. The exemptions in the statute broadly cover any existing service lines. Had the plaintiff installed its cable in compliance with its permit and begun operation prior to the imposition of the moratorium, it too, would be exempt as to repairs, replacement for repairs or maintenance projects. The moratorium does not prevent Cross-Sound from operating the cable within the terms of its permit, upon laying the cable to required depth. The moratorium was not imposed for economic protectionism. The state was acting within its police powers to protect the health, safety and welfare of its citizens to assess the environmental impact such utility crossings beneath Long Island Sound have on the state's fisheries and shellfish beds, and to develop a plan to protect those resources while maintaining a viable supply of energy to its citizens. "[S]tate regulations which affect interstate commerce are presumptively valid where they are exercises of traditional police powers." Blue Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 267-68, 493 A.2d 908 (1985), aff'd 203 Conn. 14, 523 A.2d 467 (1987).
See footnote 1, footnote 7.
See footnote 1.
Although the moratorium prevents the installation of new crossings and development of new services by any entity having a pending application or submitting a new application related to electrical, gas or telecommunications crossings, it does so for a limited temporary time, which terminates on June 3, 2003. Moreover, the moratorium does not interrupt current service. The protection of the shellfish beds and fisheries, on the other hand, provide significant benefits for the welfare of the state that project well into the future. Maintaining a healthy seabed provides clean water, and healthy fisheries and shellfish beds, which in turn provide a safe food source and environment, and a viable job market for the welfare of the state's citizens. The court finds that the burden imposed on interstate commerce is not "clearly excessive in relation to the putative local benefits." See Oregon Waste Systems, Inc. v. Dept. of Environmental Quality, supra, 99. The moratorium imposed by General Statutes § 25-157 and § 16-244j do not violate the commerce clause of the United States constitution.
Cross-Sound has failed to establish its clear legal right to a writ of mandamus. Cross-Sound has not met its burden of proof that the moratorium bill as applied to its application for a COP before the DEP is unconstitutional in any of the respects claimed. Accordingly, the application for writ of mandamus is denied.
Munro, J.