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Environmental Law

Environmental Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4949

SC20545 - Crouzet v. First Baptist Church of Stonington (Appellate Review; Whether appellate court properly reversed trial court's judgment for defendants in action regarding contamination of neighboring plaintiff's property because (1) trial court committed clear error in finding that secondary source was responsible for contamination and (2) even if there was secondary source, its presence did not mean that plaintiff failed to prove that defendants caused contamination; "The plaintiff, David Crouzet, brought this action against the defendants, First Baptist Church of Stonington and Second Congregational Church of Stonington, alleging that fuel oil had leaked from an underground storage tank that previously had been located on the defendants' property onto the plaintiff's property, thereby contaminating it. The case was tried to the court, which concluded that a "secondary source" for the oil contamination existed on the plaintiff's property and, therefore, that the plaintiff had failed to prove its case. Accordingly, the trial court rendered judgment for the defendants. The plaintiff appealed to the Appellate Court, claiming that the trial court's finding that there was a secondary source for the oil contamination was clearly erroneous and that, even if that finding was supported by the evidence, that would not mean that the plaintiff failed to prove that the oil tank on the defendants' property was the primary source of the contamination. Crouzet v. First Baptist Church of Stonington, 199 Conn. App. 532, 553–54, 239 A.3d 321 (2020). The Appellate Court agreed with the plaintiff and reversed the judgment of the trial court and remanded the case for a new trial. Id., 555, 559–60, 562. We then granted the plaintiff's petition for certification to appeal, limited to the following issue: "Did the Appellate Court, on the record in this case, properly reverse the judgment of the trial court rendered in favor of the defendants on the grounds that (1) the trial court committed clear error in finding that a secondary source was responsible for the contamination of the plaintiff's property, and (2) even if there had been a secondary source of contamination, the presence of that secondary source does not mean that the plaintiff failed to prove that the defendants' oil tank contaminated [the] property?" Crouzet v. First Baptist Church of Stonington, 335 Conn. 979, 241 A.3d 703 (2020). We conclude that certification was improvidently granted and, therefore, dismiss the appeal.")


Administrative Appeal Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4823

AC43834 - Nutmeg State Crematorium, LLC v. Dept. of Energy & Environmental Protection (Administrative appeal; "The plaintiffs, Luke DiMaria and Nutmeg State Crematorium, LLC, appeal from the judgment of the Superior Court dismissing their administrative appeal from the decision of the Commissioner of Energy and Environmental Protection (commissioner), denying the plaintiffs' applications for two new source review air permits (air permits), which had been submitted by the plaintiffs to the defendant Department of Energy and Environmental Protection (department). On appeal, the plaintiffs claim that the trial court erred by (1) concluding that the plaintiffs' cremation system exceeded the maximum allowable stack concentration (MASC) for mercury, (2) interpreting improperly the term "ambient air" to mean all atmosphere external to buildings, (3) adjudicating issues not raised in the administrative appeal, and (4) violating binding legal precedent and General Statutes § 4-183 (j). We affirm the judgment of the court dismissing the plaintiffs' appeal.")


Environmental Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4788

AC44083 - Purnell v. Inland Wetlands & Watercourses Commission (Appeal from decision by defendant inland wetlands and watercourses commission granting permit to conduct regulated activities pursuant to Inland Wetlands and Watercourses Act (§§ 22a-36 through 22a-45); "The plaintiffs, Marguerite Purnell and Matilda Giampietro, appeal from the judgment of the Superior Court dismissing their appeal from the decision of the defendant Inland Wetlands and Watercourses Commission of the Town of Washington (commission) to grant the application of the defendant 101 Wykeham Road, LLC (applicant), for a permit to conduct regulated activities pursuant to the Inland Wetlands and Watercourses Act (act), General Statutes § 22a-36 et seq. On appeal, the plaintiffs claim that the court improperly concluded that (1) the commission did not violate their right to fundamental fairness, (2) the commission applied a correct legal standard in reviewing the permit application, (3) the commission's decision was supported by substantial evidence, and (4) the commission was not required to make a finding that no feasible and prudent alternatives existed. We affirm the judgment of the Superior Court.")

AC44102 - Aldin Associates Ltd. Partnership v. State (Writ of mandamus; sovereign immunity; underground storage tank petroleum clean-up program; "The plaintiff, Aldin Associates Limited Partnership, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, the state of Connecticut and Katie Dykes, the Commissioner of Energy and Environmental Protection (commissioner), claiming that the plaintiff's action seeking a writ of mandamus and money damages was barred by sovereign immunity. On appeal, the plaintiff claims that the court improperly granted the motion to dismiss because (1) sovereign immunity does not bar its claim for mandamus relief, (2) the state either expressly or by force of a necessary implication waived its sovereign immunity under General Statutes § 22a-449g, and (3) the plaintiff alleged a property interest protected under the takings clause of the Connecticut constitution. We conclude that the plaintiff's mandamus claim is not barred by sovereign immunity and, accordingly, reverse in part the judgment of the court.")


Administrative Appeal Supreme Court Slip Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4660

SC20464 - Not Another Power Plant v. Connecticut Siting Council (Administrative Appeal; The plaintiff is a nonprofit association organized for the purpose of conserving the environment and ensuring the thoughtful development of the town of Killingly. The defendant NTE Connecticut, LLC (NTE), is seeking to build an electric generating facility in Killingly; "The principal issue in this appeal is whether the named defendant, the Connecticut Siting Council (council), properly refused to consider the environmental impact of installing a gas pipeline to a proposed electric generating facility when weighing the public benefit of the facility against its probable environmental impact pursuant to the Public Utility Environmental Standards Act (act), General Statutes § 16-50g et seq. The defendant NTE Connecticut, LLC (NTE), submitted an application to the council seeking a certificate of environmental compatibility and public need for the construction of an electric generating facility (facility) in the town of Killingly (town) pursuant to the act. Thereafter, the plaintiff, Not Another Power Plant, a nonprofit association formed to promote environmental conservation in the town, intervened in the proceeding pursuant to General Statutes § 22a-19 (a) (1). After conducting hearings, the council issued a decision approving NTE's application. The plaintiff then appealed from the council's decision to the trial court, claiming that, when weighing the public benefit of the facility against the harm that it would cause to the environment, the council improperly had failed to consider the environmental impact of a gas pipeline that would have to be installed in the future to provide fuel to the facility. The trial court concluded that the council was not required to consider the impact of the gas pipeline and rendered judgment dismissing the plaintiff's administrative appeal. On appeal to this court, the plaintiff claims that the council's refusal to consider the environmental impact of the future gas pipeline was arbitrary and capricious. In response, the defendants disagree and also challenge the plaintiff's standing to bring this administrative appeal. Although we conclude that the plaintiff had standing, we also conclude that the trial court properly dismissed the plaintiff's administrative appeal. Accordingly, we affirm the judgment of the trial court.")


Administrative Appeal Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4585

AC43865 - Nussbaum v. Dept. of Energy & Environmental Protection (Administrative appeal; whether trial court properly dismissed appeal from decision of Commissioner of Energy and Environmental Protection affirming decision of Department of Energy and Environmental Protection denying application for permit to maintain fences on certain real property adjacent to Long Island Sound and ordering removal of fences; "The plaintiffs, Bernard W. Nussbaum (Nussbaum) and the Bernard W. Nussbaum Revocable Trust (trust), appeal from the judgment of the trial court dismissing their administrative appeal from the final decision of the Commissioner of Energy and Environmental Protection (commissioner), denying Nussbaum’s application for a permit for two post and wire fences previously erected on certain shoreline property and ordering that the fences be removed. On appeal, the plaintiffs claim that the court erred in concluding (1) that the commissioner’s final decision was not arbitrary, illegal, or an abuse of discretion, and (2) that the defendant, the Department of Energy and Environmental Protection (department), (a) properly considered that, under Connecticut law, changes to land, either natural or man-made, which amount to reclamation or erosion, may, under certain circumstances, alter the mean high waterline bordering private shoreline property, (b) correctly determined the location of the mean high waterline bordering the plaintiffs’ property, and (c) properly balanced the plaintiffs’ private rights with the public’s interest in land held in trust under the statutes concerning structures, dredging, and fill; General Statutes §§ 22a-359 through 22a-363; and the Coastal Management Act, General Statutes § 22a-90 et seq. We affirm the judgment of the trial court.")


Administrative Appeal Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4287

SC20466 - Burton v. Dept. of Environmental Protection (Environmental Protection; Nuclear Power; Whether Administrative Proceeding Concerning Renewal of Millstone's Wastewater Discharge Permit was Conducted in Violation of Connecticut Environmental Protection Act and Clean Water Act; "This case comes to us for the third time following lengthy and highly contested litigation. The plaintiff, Nancy Burton, brought an action under the Connecticut Environmental Protection Act of 1971 (CEPA), General Statutes § 22a-14 et seq., against the defendants, the Commissioner of Environmental Protection and Dominion Nuclear Connecticut, Inc., and an administrative appeal under General Statutes § 4-183 (a) against the defendants, the Department of Environmental Protection and Dominion. The actions, now consolidated, claim, in part, that the operation of the Millstone Nuclear Power Station (plant), which is owned and operated by Dominion, is causing unreasonable pollution of the waters of the state in violation of CEPA. Specifically, the plaintiff challenged the department's decision to issue a National Pollutant Discharge Elimination System permit to Dominion to authorize the intake and discharge of water by the plant, claiming that the permit renewal proceeding was inadequate to protect the rights recognized by CEPA. The trial court previously dismissed the plaintiff's CEPA action for lack of standing, which this court reversed in Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 970 A.2d 640 (2009) (Burton I). Thereafter, the trial court again dismissed the plaintiff's CEPA action, this time concluding that the action was moot because the permit renewal proceeding had terminated. This court reversed that decision in Burton v. Commissioner of Environmental Protection, 323 Conn. 668, 150 A.3d 666 (2016) (Burton II). On remand from Burton II, the trial court conducted a hearing on the merits of the plaintiff's CEPA claim and administrative appeal and rendered judgments in favor of the defendants. The plaintiff now appeals from those judgments, claiming, among other things, that the trial court incorrectly concluded that she failed to prove that the administrative proceeding was inadequate and the operation of the plant would result in unreasonable pollution.

Although the plaintiff's brief appears to assert six arguments, they are not clearly articulated, and they are more properly distilled into four claims. First, the plaintiff argues that the trial court incorrectly concluded that she failed to establish that the administrative proceeding was inadequate to protect the rights recognized by CEPA. Second, the plaintiff argues that the trial court improperly held that she failed to establish that unreasonable pollution would result from the plant's operation. Third, the plaintiff argues that the trial court incorrectly concluded that the department's BTA determination did not violate the Clean Water Act. Finally, the plaintiff argues that the trial court violated this court's remand order in Burton II by failing to follow the prescribed two step proceeding. The defendants argue that the plaintiff has inadequately briefed all of her claims. They also argue, in the alternative, that the trial court's procedures and substantive holdings were proper. We agree with the defendants that the majority of the plaintiff's claims are inadequately briefed, and we conclude that those claims that are adequately briefed lack merit.

The judgments are affirmed.")


Environmental Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4112

AC42069 - Crouzet v. First Baptist Church of Stonington (Environmental contamination; real property; "The plaintiff, David Crouzet, appeals from the judgment of the trial court rendered in favor of the defendants, First Baptist Church of Stonington and Second Congregational Church of Stonington, following a trial to the court in a factually complex case involving environmental contamination. The question underlying all of the plaintiff's claims on appeal is what was the cause of the oil contamination in and around the plaintiff's residence and, in particular, to what extent fuel oil that leaked from the underground storage tank on the defendants' property migrated onto the plaintiff's property and infiltrated the plaintiff's basement. On appeal, the plaintiff claims that the court's finding of a secondary source of contamination in his basement is clearly erroneous and that the court's decision is based on speculation and is legally unsound. We agree and, accordingly, reverse the judgment of the trial court.")


Environmental Law Appellate Court Opinion

   by Zigadto, Janet

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=827

AC38868 - Recycling, Inc. v. Commissioner of Energy & Enviromental Protection (Administrative appeal; "The plaintiff, Recycling, Inc. (RCI), appeals from the judgment of the trial court dismissing its administrative appeal from the decision of the defendant Commissioner of Energy and Environmental Protection (commissioner), denying its application for an individual permit to construct and operate a volume reduction facility (individual permit) and revoking its general permit to construct and operate certain recycling facilities (general permit). On appeal, RCI claims that the trial court erred in dismissing its appeal because: (1) the denial and revocation was not warranted under the circumstances of this case; (2) the hearing officer violated its rights to a fair hearing by applying an erroneous standard of review; (3) the hearing officer erroneously excluded relevant evidence; and (4) the commissioner engaged in improper conduct during the proceedings. We affirm the judgment of the trial court.")


Administrative Appeal Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=787

AC39496 - Lawrence v. Dept. of Energy & Environmental Protection (Administrative appeal; "The plaintiff, Robert H. Lawrence, Jr., appeals from the judgment of the Superior Court dismissing his administrative appeal from the decision of the Commissioner of Energy and Environmental Protection (commissioner) granting the application of 16 Highgate Road, LLC (Highgate), to construct a residential dock and pier.The plaintiff claims that the court improperly concluded that (1) he was not classically aggrieved by the commissioner's decision, (2) he was statutorily aggrieved under General Statutes § 22a-19 only with respect to his claim of visual degradation, (3) the commissioner's decision was supported by substantial evidence in the record and (4) the commissioner's decision complied with all applicable laws and regulations. We affirm the judgment of the Superior Court.")

  • Appendix - Lawrence v. Dept. of Energy & Environmental Protection


Judicial Branch Now Publishing Headnotes for its Supreme & Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=534

The Judicial Branch has announced that it is now publishing a syllabus (headnote) at the top of each Supreme and Appellate Court opinion:

The Judicial Branch is now posting online headnotes for both Supreme and Appellate Court opinions. These headnotes, which accompany individual Supreme and Appellate Court decisions, include a short summary of the ruling and the procedural history of a case. The Reporter of Judicial Decisions prepares the headnotes, which are not part of the opinion. As such, the opinion alone should be relied upon for the reasoning behind the decision [Emphasis added].

Subscribe to a case law category (or categories) of your choice through our Email Digest or RSS delivery services to receive the latest cases from the Supreme or Appellate Courts delivered directly to your inbox.


Administrative Appeal Supreme Court Opinion

   by Zigadto, Janet

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=507

SC19799 - Middlebury v. Connecticut Siting Council ("This appeal concerns a proviso contained in General Statutes § 16-50p, which precludes the defendant, Connecticut Siting Council, from granting a certificate of environmental compatibility and public need (certificate) for operation of an electric generating or storage facility unless the council, among other things, 'considers neighborhood concerns' with respect to specified factors. The plaintiffs, the town of Middlebury and sixteen residents and entities situated in Middlebury and adjacent towns, appeal from the judgment of the trial court dismissing their appeal from the decision of the council granting the petition of CPV Towantic, LLC (CPV), to open and modify a certificate for an electric generating facility. The plaintiffs' principal claim is that the trial court improperly determined that the council adequately had considered neighborhood concerns, despite the absence of express findings or analysis in its decision addressing the plaintiffs' concerns about adverse impacts from the facility. We affirm the judgment of the trial court.")


Environmental Law Supreme Court Opinion

   by Zigadto, Janet

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=264

SC19620 - Connecticut Energy Marketers Assn. v. Dept. of Energy & Environmental Protection (Declaratory judgment; sovereign immunity; "The issue that we must address in this appeal is whether the issuance of a comprehensive energy strategy by the defendant Department of Energy and Environmental Protection (department), pursuant to a legislative directive, and the subsequent approval of a plan to expand the use of natural gas in this state by the department and the defendant Public Utilities Regulatory Authority (authority) constituted ' "actions which may significantly affect the environment" ' within the meaning of General Statutes § 22a-1c, thereby triggering the requirement for written evaluation of the expansion plan's environmental impact pursuant to General Statutes § 22a-1b (c). The plaintiff, Connecticut Energy Marketers Association, brought this action against the defendants claiming that they violated the Environmental Policy Act (act), General Statutes § 22a-1 et seq., when the department issued a comprehensive energy strategy that contemplated a significant expansion of the use of natural gas in this state, and when both defendants approved a plan for such expansion, without evaluating the environmental impact of, among other things, an increase in the use of natural gas pursuant to § 22a-1b (c). The defendants filed separate motions to dismiss the plaintiff's complaint claiming that only 'individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's' environmental resources; General Statutes § 22a-1c; constitute 'actions which may significantly affect the environment' for purposes of § 22a-1b (c). Because they did not undertake any such activities, the defendants claimed, no environmental impact evaluation was required. The trial court agreed with the defendants and rendered judgment dismissing the complaint. The plaintiff claims on appeal to this court that the trial court improperly determined that the defendants' activities did not constitute 'actions which may significantly affect the environment' for purposes of § 22a-1b (c). We disagree with the plaintiff, and affirm the judgment of the trial court.")

  • SC19620 Dissent - Connecticut Energy Marketers Assn. v. Dept. of Energy & Environmental Protection



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