Connecticut Energy Marketers Assn. v. Dept. of Energy & Environmental Protection ( 2017 )

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CONNECTICUT ENERGY MARKETERS
ASSOCIATION v. DEPARTMENT OF
ENERGY AND ENVIRONMENTAL
PROTECTION ET AL.
(SC 19620)
Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued October 14—officially released December 29, 2016*
Alphonse M. Alfano, pro hac vice, with whom were
Calvin K. Woo and, on the brief, Karen A. Mignone,
for the appellant (plaintiff).
Robert D. Snook and Robert L. Marconi, assistant
attorneys general, with whom, on the brief, were George
Jepsen, attorney general, and Clare E. Kindall, assistant
attorney general, for the appellees (defendants).
Opinion
ROBINSON, J. 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,1 thereby trig-
gering the requirement for written evaluation of the
expansion plan’s environmental impact pursuant to
General Statutes § 22a-1b (c).2 The plaintiff, Connecti-
cut 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 expan-
sion 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 pursu-
ant 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 depart-
ments, 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 evalua-
tion was required. The trial court agreed with the defen-
dants and rendered judgment dismissing the complaint.
The plaintiff claims on appeal3 to this court that the
trial court improperly determined that the defendants’
activities did not constitute ‘‘actions which may signifi-
cantly affect the environment’’ for purposes of § 22a-
1b (c). We disagree with the plaintiff, and affirm the
judgment of the trial court.
The record reveals the following facts, which are
undisputed or were found by the trial court, and
procedural history. In 2011, the legislature enacted
General Statutes § 16a-3d, which directs the Commis-
sioner of Energy and Environmental Protection to
prepare a comprehensive energy strategy for the state
every three years.4 See Public Acts 2011, No. 11-80,
§ 51.5 Pursuant to this directive, the department6 issued
a document entitled ‘‘2013 Comprehensive Energy Strat-
egy for Connecticut’’ (comprehensive energy strategy)
on February 19, 2013. As part of the comprehensive
energy strategy, the department recommended a signifi-
cant expansion of the use of natural gas in the state.
This proposal would require the expansion of natural
gas pipeline capacity into the state, regulatory changes
to enable certain customers to have their connections
financed by the state’s gas companies, the construction
of approximately 900 miles of gas mains to provide
access to consumers, and incentives for the state’s gas
companies to ‘‘ramp-up the required construction
quickly . . . .’’
The department also recommended that the state’s
gas companies submit a detailed conversion plan to the
department and the authority. The department would
then review the plan for consistency with the goals of
the comprehensive energy strategy and the authority
would assess the plan’s potential impact on ratepayers.
In June, 2013, the legislature enacted General Statutes
§ 16-19ww, adopting the department’s recommenda-
tions. See Public Acts 2013, No. 13-298, § 51.7
Thereafter, Southern Connecticut Gas Company,
Connecticut Natural Gas Corporation, and Yankee Gas
Services Company (local distribution companies) sub-
mitted to the defendants a Joint Natural Gas Infrastruc-
ture Expansion Plan (expansion plan). The department
found the expansion plan ‘‘to be generally consistent
with the [comprehensive energy strategy] goals,’’ but
recommended several modifications. The local distribu-
tion companies made the recommended modifications
and resubmitted the modified expansion plan to the
defendants, at which time the authority commenced
a contested case to investigate the plan’s impact on
ratepayers pursuant to § 16-19ww (c).8 During the
course of that proceeding, two parties submitted letters
to the authority contending that the authority was
required to prepare an environmental impact evaluation
pursuant to § 22a-1b (c). In response, the authority
issued a notice of request for written comments on
that issue. The department submitted a letter to the
authority contending that an environmental impact
evaluation was not required because the authority was
not the sponsoring agency for the proposed expansion
of the natural gas distribution system, it was not funding
the proposed expansion, it was not performing the pro-
posed expansion and it would have no ownership inter-
est in the proposed facilities. The authority issued a
final decision approving the expansion plan without
requiring an environmental impact evaluation.
The plaintiff, a trade association of more than 500
energy marketers who sell gasoline and heating fuel to
residential and commercial customers throughout the
state, then brought this action pursuant to General Stat-
utes § 22a-169 in 2014 claiming that the expansion plan
would increase the amount of natural gas escaping into
the atmosphere, thereby exacerbating global warming,10
and that it would also have other negative impacts on
the state’s environmental resources. The plaintiff
sought a declaratory judgment that the defendants had
violated the act by failing to conduct an assessment of
environmental significance or to prepare an environ-
mental impact evaluation pursuant to § 22a-1b (c). The
plaintiff also sought an injunction requiring the defen-
dants to perform those acts.
The department filed a motion to dismiss or to strike
the plaintiff’s complaint claiming, among other things,
that the department had not undertaken any ‘‘ ‘actions
which may significantly affect the environment,’ ’’ as
that term is defined in § 22a-1c, that would require the
preparation of an environmental impact evaluation pur-
suant to § 22a-1b (c). The authority filed a separate
motion to dismiss raising the same claim. The trial court
concluded that, because the defendants were merely
acting pursuant to the legislative directives contained
in §§ 16a-3d and 16-19ww, their conduct did not come
within the definition set forth in § 22a-1c and they were
not required to prepare an environmental impact evalu-
ation. Accordingly, the trial court concluded that the
plaintiff had failed to state a claim pursuant to the act
and rendered judgment dismissing the complaint on the
ground that it lacked subject matter jurisdiction under
the doctrine of sovereign immunity.11 This appeal
followed.
The plaintiff contends that the trial court incorrectly
concluded that the department’s preparation of the
comprehensive energy strategy and the approval of the
expansion plan by both the department and the author-
ity were not ‘‘ ‘actions which may significantly affect
the environment’ ’’; General Statutes § 22a-1c; requiring
an environmental impact evaluation pursuant to § 22a-
1b. We disagree.
The question of whether the trial court properly dis-
missed the plaintiff’s complaint turns on the proper
interpretation of the phrase ‘‘ ‘actions which may signifi-
cantly affect the environment’ ’’ as used in § 22a-1c,
which is an issue of statutory interpretation that pre-
sents a question of law. Fairchild Heights Residents
Assn., Inc. v. Fairchild Heights, Inc., 310 Conn. 797,
808–809, 82 A.3d 602 (2014). ‘‘[A]n agency’s factual and
discretionary determinations are to be accorded consid-
erable weight by the courts. . . . Cases that present
pure questions of law, however, invoke a broader stan-
dard of review than is ordinarily involved in deciding
whether, in light of the evidence, the agency has acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . . We have determined, therefore, that the
traditional deference accorded to an agency’s interpre-
tation of a statutory term is unwarranted when the
construction of a statute . . . has not previously been
subjected to judicial scrutiny [or to] . . . a governmen-
tal agency’s time-tested interpretation . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.)
Longley v. State Employees Retirement Commission,
284 Conn. 149, 163, 931 A.2d 890 (2007). Conversely,
‘‘courts should accord deference to an agency’s formally
articulated interpretation of a statute when that inter-
pretation is both time-tested and reasonable.’’ Id.In the present case, the defendants make no claim
that their interpretation of § 22a-1c as excluding the
department’s preparation of the comprehensive energy
strategy and the defendants’ approval of the local distri-
bution companies’ expansion plan is time-tested, and
this interpretation has not previously been subject to
judicial scrutiny. Accordingly, our review is plenary.
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case, including the question
of whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we 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, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
Fairchild Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., supra, 310 Conn. 809.
We begin our analysis with the language of the rele-
vant statutes. Section 22a-1b (c) provides in relevant
part that ‘‘[e]ach state department, institution or agency
responsible for the primary recommendation or initia-
tion of actions which may significantly affect the envi-
ronment shall in the case of each such proposed action
make a detailed written evaluation of its environmental
impact before deciding whether to undertake or
approve such action . . . .’’ Section 22a-1c provides in
relevant part that, ‘‘[a]s used in sections 22a-1 to 22a-
1i, inclusive, ‘actions which may significantly affect the
environment’ means 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 land, water, air, historic structures
and landmarks as defined in section 10-410, existing
housing, or other environmental resources, or could
serve short term to the disadvantage of long term envi-
ronmental goals. . . .’’
Thus, § 22a-1c provides that, to constitute ‘‘ ‘actions
which may significantly affect the environment’ ’’ for
purposes of § 22a-1b (c), activities must both (1) be
‘‘proposed to be undertaken by state departments, insti-
tutions or agencies, or funded in whole or in part by
the state,’’ and (2) potentially ‘‘have a major impact on
the state’s’’ environmental resources. The most natural
reading of the phrase ‘‘proposed to be undertaken by
an agency or agencies’’ is that the proposed or initiated
activity that will allegedly have a major impact on the
state’s environment ultimately must ‘‘be undertaken by
an agency or agencies.’’12 (Emphasis added.) See Royce
v. Heneage, 170 Conn. 387, 392, 365 A.2d 1109 (1976)
(‘‘[t]he words of a statute should be interpreted in their
natural and usual meaning’’). Thus, activities that are
proposed by state actors, but which are ultimately per-
formed by private entities, do not constitute ‘‘actions
which may significantly affect the environment’’ for
purposes of § 22a-1b (c).13
This interpretation is supported by the legislative
genealogy of the act. When the legislature originally
enacted the act in 1973, the legislation provided that
‘‘[a]ctions which may significantly affect the environ-
ment shall include those projects directly undertaken
by state departments, institutions or agencies, or
funded in whole or in part by the state . . . .’’ (Empha-
sis added.) Public Acts 1973, No. 73-562, § 3 (P.A. 73-
562). The legislative history of P.A. 73-562 indicates that
the purpose of the legislation was to ‘‘[put] our state
government and [its] agencies on the same footing in
responsibility as our public and private industries.’’ 16
H.R. Proc., Pt. 14, 1973 Sess., p. 7182, remarks of Repre-
sentative Harold G. Harlow.14 Thus, the legislature
believed that, when the proposed activities are to be
undertaken by private entities, there would be no rea-
son to apply the act to the activities because private
entities are already held responsible for the environ-
mental impact of their activities under other laws.15
In 1977, the legislature amended the act by replacing
the phrase ‘‘shall include those projects directly’’ with
the phrase ‘‘are defined for the purposes of section 22a-
1b as individual activities or a sequence of planned
activities proposed to be . . . .’’ Public Acts 1977, No.
77-514, § 3 (P.A. 77-514). It is reasonable to conclude
that the purpose of this amendment was to clarify that, if
a state actor is considering whether it should undertake
activities that could have a major impact on the state’s
environmental resources, the state actor should prepare
an environmental impact evaluation before actually
undertaking the activities.16 Indeed, at the same time
that the legislature amended this portion of the act, it
amended the portion now codified as § 22a-1b (c) to
provide that state actors must prepare an environmental
impact evaluation ‘‘before deciding whether to under-
take or approve’’ activities that may significantly affect
the environment. (Emphasis added.) P.A. 77-514, § 2
(b). Nothing in the legislative history of P.A. 77-514
suggests that the legislature’s intent was to substantially
change the primary purpose of the 1973 legislation by
making it applicable to proposed activities that are to
be undertaken by private actors. Cf. Doe v. Doe, 244
Conn. 403, 434, 710 A.2d 1297 (1998) (‘‘[w]e ordinarily
do not infer a legislative intent to change [long-standing]
and fundamental legislative policies without a clear
indication of such an intent’’).
In the present case, the defendants have not proposed
to undertake or to fund the activities that the plaintiff
alleges will have a major impact on the state’s environ-
mental resources, namely, the construction of new gas
pipelines in the state resulting in the increased dis-
charge of methane gas into the atmosphere. Rather,
these activities will be undertaken and funded by the
local distribution companies, which are private entities.
Accordingly, we conclude that the trial court properly
granted the defendants’ motions to dismiss on the
ground that the requirement of an environmental impact
evaluation in § 22a-1b (c) does not apply to their activi-
ties in the present case.
In support of its claim to the contrary, the plaintiff
relies on § 22a-1a-1 (2) of the Regulations of Connecti-
cut State Agencies, which defines an ‘‘action,’’ as that
word is used in General Statutes § 22a-1b (c), as an
‘‘individual activity or a sequence of planned activities
initiated or proposed to be undertaken by an agency
or agencies, or funded in whole or in part by the state.’’
(Emphasis added.) Regs., Conn. State Agencies § 22a-
1a-1 (2). The plaintiff contends that, under this regula-
tion, an agency engages in an ‘‘action’’ when it initiates
or proposes an activity that will be undertaken by any
entity.17 Thus, the plaintiff contends that § 22a-1a-1 (2)
of the regulations, and, by extension, General Statutes
§ 22a-1c, should be interpreted to apply to an individual
activity or a sequence of planned activities to be under-
taken by any person or entity that is initiated or pro-
posed by an agency. Because the department proposed
the expansion of the use of natural gas in the state
when it prepared the comprehensive energy strategy,
the plaintiff argues, the local distribution companies’
expansion plan was subject to the requirements of Gen-
eral Statutes § 22a-1b (c). We disagree. The plaintiff’s
interpretation would both require the insertion of words
such as ‘‘to be undertaken by any person or entity’’ into
§ 22a-1a-1 (2) of the regulations and General Statutes
§ 22a-1c and render the existing phrase ‘‘to be under-
taken’’ superfluous. See Giaimo v. New Haven, 257
Conn. 481, 494, 778 A.2d 33 (2001) (‘‘we may not read
into clearly expressed legislation provisions which do
not find expression in its words’’ [internal quotation
marks omitted]); Hopkins v. Pac, 180 Conn. 474, 476,
429 A.2d 952 (1980) (‘‘[it is] well established . . . that
statutes must be construed, if possible, such that no
clause, sentence or word shall be superfluous, void
or insignificant’’).
The plaintiff also relies on the language of § 22a-1a-
1 (2) of the regulations providing that an ‘‘action’’ for
purposes of General Statutes § 22a-1b (c) includes any
‘‘activity for which an agency exercises judgment or
discretion as to the propriety of that action.’’ Regs.,
Conn. State Agencies § 22a-1a-1 (2). Because the depart-
ment exercised judgment in preparing the comprehen-
sive energy strategy, and because both defendants
exercised judgment in approving the expansion plan,
the plaintiff contends, those activities were
‘‘ ‘action[s]’ ’’ subject to § 22a-1b (c).18 Again, we dis-
agree. This portion of the regulation was intended to
implement the portion of § 22a-1c providing that § 22a-
1b (c) does not apply to ‘‘activities in which state agency
participation is ministerial in nature, involving no exer-
cise of discretion on the part of the state department,
institution or agency.’’19 General Statutes § 22a-1c. That
language provides an exemption to the portion of § 22a-
1c providing that ‘‘[s]uch actions shall include but not
be limited to new projects and programs of state agen-
cies and new projects supported by state contracts and
grants . . . .’’ In turn, ‘‘[s]uch actions,’’ as used in this
portion of § 22a-1c, refers back to ‘‘activities proposed
to be undertaken by state departments, institutions or
agencies, or funded in whole or in part by the state
. . . .’’ Thus, § 22a-1a-1 (2) of the regulations applies
only to activities that will be undertaken or funded by
a state actor. Because the activities that the plaintiff
alleges will cause major pollution will be undertaken
by private parties, the defendants’ activities in propos-
ing and approving those activities do not fall within this
definition regardless of whether they are discretionary
or ministerial.
To the extent that the plaintiff contends that § 22a-
1a-1 (2) of the regulations broadens the definition of
‘‘ ‘actions which may significantly affect the environ-
ment’ ’’ set forth in General Statutes § 22a-1c, we dis-
agree. For the reasons that we have already explained,
we do not believe that the language of the regulation
is broader than the statute. Indeed, all of the specific
examples of ‘‘actions’’ subject to § 22a-1b (c) set forth
in § 22a-1a-1 (2) of the regulations involve actions to
be undertaken or funded by state actors.20
Citing this court’s decision in Manchester Environ-
mental Coalition v. Stockton, 184 Conn. 51, 63, 441
A.2d 68 (1981), overruled in part on other grounds by
Waterbury v. Washington, 260 Conn. 506, 556, 800 A.2d
1102 (2002), the plaintiff also contends that we should
construe §§ 22a-1b (c) and 22a-1c consistently with the
National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4331 et seq. See Manchester Environmental Coalition
v. Stockton, supra, 63 (Connecticut’s act was modeled
on NEPA); id., 67 n.20 (relying on NEPA to determine
standard of review of agency’s determination that no
environmental impact statement is required).21 The
plaintiff points out that ‘‘there is ‘[f]ederal action’ within
the meaning of [NEPA] not only when an agency pro-
poses to build a facility itself, but also whenever an
agency makes a decision which permits action by other
parties which will affect the quality of the environment.
NEPA’s impact statement procedure has been held to
apply where a federal agency approves a lease of land
to private parties, grants licenses and permits to private
parties, or approves and funds state highway projects.’’
(Footnotes omitted.) Scientists’ Institute for Public
Information, Inc. v. Atomic Energy Commission, 481
F.2d 1079, 1088 (D.C. Cir. 1973). Even if we were to
assume, however, that the act was generally modeled
on NEPA; see footnote 21 of this opinion; there are
significant differences between the two statutes. Of par-
ticular relevance here, NEPA does not define ‘‘[f]ederal
actions,’’ as that term is used in 42 U.S.C § 4332 (2)
(C),22 as ‘‘activities proposed to be undertaken by’’ fed-
eral actors. Compare General Statutes § 22a-1c. Rather,
the implementing regulations for NEPA define ‘‘[f]ed-
eral actions’’ broadly to ‘‘include new and continuing
activities, including projects and programs entirely or
partly financed, assisted, conducted, regulated, or
approved by federal agencies; new or revised agency
rules, regulations, plans, policies, or procedures; and
legislative proposals.’’ (Emphasis added.) 40 C.F.R.
§ 1508.18. We conclude, therefore, that the scope of the
‘‘[f]ederal actions’’ that are subject to NEPA is broader
than the scope of activities by state actors that are
subject to the act. If the legislature had intended for
the term ‘‘actions which may significantly affect the
environment’’ to have the same meaning under the act
as the term ‘‘[f]ederal actions’’ has under NEPA, it easily
could have expressly provided so in § 22a-1c.
The plaintiff further contends that, because the act
is remedial in nature, we should construe it liberally.
See Manchester Environmental Coalition v. Stockton,
supra, 184 Conn. 57 (‘‘[s]tatutes such as the [Connecti-
cut Environmental Protection Act] are remedial in
nature and should be liberally construed to accomplish
their purpose’’). The defendants contend that, to the
contrary, ‘‘[w]hen the state waives sovereign immunity
by statute . . . a party who wishes to sue under the
legislative waiver must come clearly within its provi-
sions because [s]tatutes in derogation of sovereignty
should be strictly construed in favor of the state, so
that its sovereignty may be upheld and not narrowed
or destroyed.’’ (Internal quotation marks omitted.)
Duguay v. Hopkins, 191 Conn. 222, 232, 464 A.2d 45(1983); see also White v. Burns, 213 Conn. 307, 312,
567 A.2d 1195 (1990) (‘‘[w]here there is any doubt about
their meaning or intent [statutes] are given the effect
which makes the least rather than the most change in
sovereign immunity’’). These principles come into play,
however, only when there is doubt about the meaning
of the statute under review after this court has engaged
in the full process of statutory interpretation. Cf. State
v. Courchesne, 262 Conn. 537, 555, 816 A.2d 562 (2003)
(rules of lenient or strict construction of criminal stat-
utes come into play only when, ‘‘after the court has
engaged in the full process of statutory interpretation,
there is nonetheless a reasonable doubt about [the]
statute’s intended scope’’ [internal quotation marks
omitted]). Because we have no residual doubt about
the meaning of § 22a-1c, we need not determine here
which of these principles applies when they are in
conflict.
The judgment is affirmed.
In this opinion PALMER, ZARELLA, and McDONALD,
Js., concurred.
* December 29, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 22a-1c provides: ‘‘As used in sections 22a-1 to 22a-1i,
inclusive, ‘actions which may significantly affect the environment’ means
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
land, water, air, historic structures and landmarks as defined in section 10-
410, existing housing, or other environmental resources, or could serve short
term to the disadvantage of long term environmental goals. Such actions
shall include but not be limited to new projects and programs of state
agencies and new projects supported by state contracts and grants, but
shall not include (1) emergency measures undertaken in response to an
immediate threat to public health or safety; or (2) activities in which state
agency participation is ministerial in nature, involving no exercise of discre-
tion on the part of the state department, institution or agency.’’
2
General Statutes § 22a-1b (c) provides in relevant part: ‘‘Each state
department, institution or agency responsible for the primary recommenda-
tion or initiation of actions which may significantly affect the environment
shall in the case of each such proposed action make a detailed written
evaluation of its environmental impact before deciding whether to undertake
or approve such action . . . .’’
Although § 22a-1b (c) was the subject of a technical amendment in 2014;
see Public Acts 2014, No. 14-122, § 130; that amendment has no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
3
The plaintiff appealed from the judgment of dismissal to the Appellate
Court and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
General Statutes § 16a-3d provides: ‘‘(a) On or before October 1, 2016, and
every three years thereafter, the Commissioner of Energy and Environmental
Protection shall prepare a Comprehensive Energy Strategy. Said strategy
shall reflect the legislative findings and policy stated in section 16a-35k and
shall incorporate (1) an assessment and plan for all energy needs in the
state, including, but not limited to, electricity, heating, cooling, and transpor-
tation, (2) the findings of the Integrated Resources Plan, (3) the findings of
the plan for energy efficiency adopted pursuant to section 16-245m, (4) the
findings of the plan for renewable energy adopted pursuant to section 16-
245n, and (5) the Energy Assurance Plan developed for the state of Connecti-
cut pursuant to the American Recovery and Reinvestment Act of 2009,
P.L. 111-5, or any successor Energy Assurance Plan developed within a
reasonable time prior to the preparation of any Comprehensive Energy
Strategy. Said strategy shall further include, but not be limited to, (A) an
assessment of current energy supplies, demand and costs, (B) identification
and evaluation of the factors likely to affect future energy supplies, demand
and costs, (C) a statement of progress made toward achieving the goals
and milestones set in the preceding Comprehensive Energy Strategy, (D) a
statement of energy policies and long-range energy planning objectives and
strategies appropriate to achieve, among other things, a sound economy,
the least-cost mix of energy supply sources and measures that reduce
demand for energy, giving due regard to such factors as consumer price
impacts, security and diversity of fuel supplies and energy generating meth-
ods, protection of public health and safety, environmental goals and stan-
dards, conservation of energy and energy resources and the ability of the
state to compete economically, (E) recommendations for administrative and
legislative actions to implement such policies, objectives and strategies, (F)
an assessment of the potential costs savings and benefits to ratepayers,
including, but not limited to, carbon dioxide emissions reductions or volun-
tary joint ventures to repower some or all of the state’s coal-fired and oil-
fired generation facilities built before 1990, and (G) the benefits, costs,
obstacles and solutions related to the expansion and use and availability
of natural gas in Connecticut. If the department finds that such expansion
is in the public interest, it shall develop a plan to increase the use and
availability of natural gas.
‘‘(b) In adopting the Comprehensive Energy Strategy, the Commissioner
of Energy and Environmental Protection shall conduct a proceeding that
shall not be considered a contested case under chapter 54, but shall include
not less than one public meeting and one technical meeting at which techni-
cal personnel shall be available to answer questions. Such meetings shall
be transcribed and posted on the department’s Internet web site. Said com-
missioner shall give not less than fifteen days’ notice of such proceeding
by electronic publication on the department’s Internet web site. Not later
than fifteen days prior to any such public meeting and not less than thirty
days prior to any such technical meeting, the commissioner shall publish
notice of either such meeting and post the text of the proposed Comprehen-
sive Energy Strategy on the department’s Internet web site. Notice of such
public meeting or technical meeting may also be published in one or more
newspapers having state-wide circulation if deemed necessary by the com-
missioner. Such notice shall state the date, time, and place of the meeting,
the subject matter of the meeting, the manner and time period during which
comments may be submitted to said commissioner, the statutory authority
for the proposed strategy and the location where a copy of the proposed
strategy may be obtained or examined in addition to posting the proposed
strategy on the department’s Internet web site. Said commissioner shall
provide a time period of not less than sixty days from the date the notice
is published on the department’s Internet web site for public review and
comment. During such time period, any person may provide comments
concerning the proposed strategy to said commissioner. Said commissioner
shall consider fully all written and oral comments concerning the proposed
strategy after all public meetings and technical meetings and before approv-
ing the final strategy. Said commissioner shall (1) notify by electronic mail
each person who requests such notice, and (2) post on the department’s
Internet web site the electronic text of the final strategy and a report summa-
rizing all public comments and the changes made to the final strategy in
response to such comments and the reasons therefor. The Public Utilities
Regulatory Authority shall comment on the strategy’s impact on natural gas
and electric rates.
‘‘(c) The Commissioner of Energy and Environmental Protection shall
submit the final Comprehensive Energy Strategy electronically to the joint
standing committees of the General Assembly having cognizance of matters
relating to energy and the environment.
‘‘(d) The Commissioner of Energy and Environmental Protection may
modify the Comprehensive Energy Strategy in accordance with the proce-
dures outlined in subsections (b) and (c) of this section.’’
5
We note that § 16a-3d has since been amended by No. 13-298, § 23, of
the 2013 Public Acts.
6
The parties refer to the Commissioner of Energy and Environmental
Protection, the department’s internal Bureau of Energy and Technology
Policy and the department itself interchangeably. Because the department
is the named defendant, for the purpose of consistency, we refer to each
of these entities as the department.
7
We note that § 16-19ww has since been amended by No. 14-94, § 51, of
the 2014 Public Acts.
8
General Statutes § 16-19ww (c) provides: ‘‘In the event that the commis-
sioner determines that the plan is consistent with the Comprehensive Energy
Strategy pursuant to subsection (b) of this section, the Public Utilities Regu-
latory Authority shall, in a contested proceeding during which the authority
shall hold a public hearing, approve or modify the plan not later than one
hundred twenty days after such plan is submitted to the authority.’’
9
General Statutes § 22a-16 provides in relevant part: ‘‘The Attorney Gen-
eral, any political subdivision of the state, any instrumentality or agency
of the state or of a political subdivision thereof, any person, partnership,
corporation, association, organization or other legal entity may maintain an
action in the superior court for the judicial district wherein the defendant
is located, resides or conducts business, except that where the state is the
defendant, such action shall be brought in the judicial district of Hartford,
for declaratory and equitable relief against the state, any political subdivision
thereof, any instrumentality or agency of the state or of a political subdivision
thereof, any person, partnership, corporation, association, organization or
other legal entity, acting alone, or in combination with others, for the protec-
tion of the public trust in the air, water and other natural resources of the
state from unreasonable pollution, impairment or destruction . . . . ’’
10
According to the plaintiff, natural gas is composed primarily of methane,
which ‘‘is more than [twenty] times as effective as carbon dioxide at trapping
heat in the atmosphere . . . .’’
11
The trial court relied on this court’s decision in Stotler v. Dept. of
Transportation, 313 Conn. 158, 185, 96 A.3d 527 (2014), for the proposition
that, if a plaintiff fails to state a claim pursuant to a statute waiving sovereign
immunity, the plaintiff’s complaint is subject to dismissal, rather than to
being stricken. See id. (‘‘[W]e conclude that the Appellate Court properly
determined that the plaintiff’s complaint fails to state a claim under [General
Statutes] § 13a-144. Therefore, the plaintiff’s claim is barred by the doctrine
of sovereign immunity and should have been dismissed by the trial court.’’).
Ordinarily, a motion to strike is the proper procedural vehicle for challenging
the legal sufficiency of a complaint. See In re Michael D., 58 Conn. App.
119, 122, 752 A.2d 1135 (‘‘[t]he purpose of a motion to strike is to challenge
the legal sufficiency of the allegations of a complaint for failure to state a
claim on which relief can be granted’’ [internal quotation marks omitted]),
cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). Although the plaintiff
contends that the motions to dismiss filed by the defendants should have
been treated as motions to strike, it does not claim that the trial court’s
interpretation of Stotler was incorrect and, therefore, even if the trial court
properly determined that the defendants were not subject to the require-
ments of § 22a-1c, the judgment should still be reversed because the com-
plaint was improperly dismissed instead of stricken. Cf. Fort Trumbull
Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003) (when
trial court improperly granted motion to dismiss claim that was properly
subject to motion to strike, error was harmless when plaintiff did not claim
that it could amend complaint to state legally sufficient claim).
We have serious questions as to whether § 22a-16 confers standing on
the plaintiff to challenge the failure of the state to prepare an environmental
impact evaluation pursuant to § 22a-1b, as the plaintiff alleges in its com-
plaint. Whether the failure to prepare a report constitutes a claim of ‘‘unrea-
sonable pollution’’ is, at best debatable. See id., 805 (to have standing to
bring action pursuant to § 22a-16, plaintiff is required ‘‘to make a colorable
claim of unreasonable pollution’’). Nevertheless, because the parties have
not raised nor briefed this question, we resolve today’s issue on an alternative
jurisdictional basis that was raised and briefed. See Stotler v. Dept. of Trans-
portation, supra, 315 Conn. 158.
12
Similarly, the plaintiff also contends that, under the language of § 22a-
1b (c), any action that is initiated or proposed by a state agency and that
may have a major impact on the state’s environmental resources is an
‘‘[action] which may significantly affect the environment.’’ See General Stat-
utes § 22a-1b (c) (referring to ‘‘initiation of actions’’ and ‘‘proposed action’’).
The plaintiff contends that, because the defendants initiated or proposed
the expansion plan under the ordinary meaning of those words, the defen-
dants were required to conduct an environmental impact study pursuant to
that statute. This argument is unavailing. Regardless of the meaning of the
words ‘‘initiation’’ and ‘‘proposed,’’ § 22a-1b (c) applies only to initiated
or proposed activities that are to be ‘‘undertaken by state departments,
institutions or agencies, or funded in whole or in part by the state . . . .’’
General Statutes § 22a-1c.
13
The dissenting justice contends that this interpretation renders the lan-
guage ‘‘proposed to be undertaken by state departments, institutions or
agencies’’ in § 22a-1c superfluous because all actions taken by a state actor
are funded by the state. We disagree. We do not believe that it was simply
redundant for the legislature to make it clear that an environmental impact
assessment is required either when a state actor undertakes the activity or
when a private actor undertakes the activity, but the activity is funded by
the state. In any event, it is far from clear that the state funds all activities
by state actors, in whole or in part. We note, for example, that the federal
government frequently funds state programs and projects, and, without
having performed a comprehensive review of those activities, we are not
prepared to say that the state contributes funding to all of them.
14
Representative Harlow further stated that ‘‘[w]hat this bill does is [to
direct] to the fullest extent possible [that] each state department, institution
and agency be responsible for providing an environmental impact statement
in terms of any activity on behalf of the state of Connecticut. This bill
brings to complete circle the need for private industry, the public and state
government to provide impact statements in terms of significant activity
with regard to our environment.’’ 16 H.R. Proc., supra, p. 7182.
15
See Conn. Joint Standing Committee Hearings, Environment, Pt. 2, 1973
Sess., p. 480 (testimony from legislative assistant acknowledging that private
entities are subject to wide array of environmental laws and zoning regula-
tions, but arguing that, because those laws are not adequate to protect
environment, provisions of act should be expanded to apply to private
developers); compare Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265,
292, 105 A.3d 857 (2015) (assuming that entity that is found to be ‘‘arm of
the state’’ would be ‘‘entitled to share the state’s sovereign immunity’’ to
actions to enforce zoning regulations).
16
We note that, during the legislative debate on P.A. 73-562, concerns
about the timing of the agency’s preparation of an environmental impact
evaluation were raised. See Conn. Joint Standing Committee Hearings, Envi-
ronment, Pt. 2, 1973 Sess., p. 475, remarks of Rita Boulby on behalf of
the Commissioner of Environmental Protection (representing department’s
belief that ‘‘the real intent and the goal of the policy act is to . . . encourage
and require agencies and institutions to develop within their planning pro-
cess at a very early stage, environmental considerations’’).
17
Specifically, the plaintiff states in its reply brief to this court that ‘‘[t]he
words ‘by an agency or agencies’ [as used in § 22a-1a-1 (2) of the regulations]
is a prepositional phrase which modifies both ‘initiated’ and ‘proposed to
be undertaken.’ An agency engages in an ‘action,’ therefore, when it proposes
that an activity or activities be undertaken.’’
18
Specifically, the plaintiff contends that an ‘‘agency’s approval of an
activity or sequence of proposed activities constitutes an ‘action’ under the
regulations if the activity may significantly affect the environment.’’
19
The plaintiff contends that, to the contrary, this portion of § 22a-1a-1
(2) of the regulations derives from the portion of § 22a-1b (c) requiring
‘‘[e]ach state department, institution or agency responsible for the primary
recommendation or initiation of actions which may significantly affect the
environment . . . in the case of each such proposed action [to] make a
detailed written evaluation of its environmental impact before deciding
whether to undertake or approve such action.’’ We disagree. The language
of the regulation clearly tracks the language of § 22a-1c. In any event, even
if the plaintiff were correct, the word ‘‘actions’’ and the phrase ‘‘such action’’
as used in this portion of § 22a-1b (c) refer to ‘‘activities proposed to be
undertaken by state departments, institutions or agencies, or funded in
whole or in part by the state’’; General Statutes § 22a-1c; and we have
concluded that this language refers to activities that ultimately will be under-
taken by a state actor. This interpretation does not render the phrase ‘‘or
approve’’ as used in § 22a-1b (c) superfluous, because that portion of the
statute contemplates the situation in which a state actor conducts proceed-
ings to determine whether it is authorized to and, if so, whether it should
undertake certain activities before actually undertaking the activities.
20
Section 22a-1a-1 (2) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘Actions include, but are not limited to, capital
improvements, alterations, repairs, or additions to the real property of the
state; acquisition of real property for the purpose of capital improvements;
[and] lease/purchase agreements; grants-in-aid or financial assistance for
housing, business, industry, restoration or demonstration projects . . . .’’
21
In Manchester Environmental Coalition, this court relied on the
remarks of Senator Philip N. Costello, Jr., during the legislative hearings on
P.A. 73-562 to support its statement that the act was modeled on NEPA.
See Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 63n.13; Conn. Joint Standing Committee Hearings, Environment, Pt. 3, 1973
Sess., p. 1031, remarks of Senator Costello (‘‘[t]he bill was modeled after
[NEPA]’’). The ‘‘bill’’ that Senator Costello was referring to, however, was
not P.A. 73-562, but a previous version of the act that the legislature had
passed in 1972. See Conn. Joint Standing Committee Hearings, supra, p.
1031; see also Public Acts 1972, No. 72-153 (P.A. 72-153). Governor Thomas
J. Meskill vetoed that legislation on the ground that ‘‘it would require too
much paper work and expense on the part of the state agencies . . . .’’
Conn. Joint Standing Committee Hearings, supra, p. 846, remarks of Senator
Costello; see also Office of Legislative Research, Legislative History of the
Connecticut Environmental Policy Act, January 30, 2008, 2008-R-0079, pp.
1–2 (‘‘[t]he governor said [that P.A. 72-153] would overlap existing federal
and state requirements, be too costly, and be onerous to administer’’). After
Governor Meskill vetoed P.A. 72-153, he issued an executive order ‘‘to
achieve the vetoed act’s ‘essential purposes.’ ’’ Office of Legislative Research
Report No. 2008-R-0079, supra, p. 2. In 1973, the legislature enacted P.A.
73-562, which generally tracked the language of Governor Meskill’s executive
order. See Office of Legislative Research, supra, p. 2. Senator Costello charac-
terized P.A. 73-562 as ‘‘less in scope than [P.A. 72-153].’’ Conn. Joint Standing
Committee Hearings, supra, p. 847; see also 16 S. Proc., Pt. 7, 1973 Sess.,
p. 3261, remarks of Senator Costello (characterizing P.A. 73-562 as ‘‘weaker
than many would wish’’); 16 H.R. Proc., supra, p. 7184, remarks of Represen-
tative Francis W. Ciampi (‘‘[t]here are a number of areas in this bill which
are much weaker than the vetoed act’’); 16 H.R. Proc., supra, p. 7187, remarks
of Representative Marilyn Pearson (‘‘this is a weak bill’’). Thus, while there
are similarities between the act and NEPA, the act was not intended to have
the same scope and meaning as NEPA in all respects.
22
Title 42 of the United States Code, § 4332, provides in relevant part:
‘‘The Congress authorizes and directs that, to the fullest extent possible
. . . (2) all agencies of the [f]ederal [g]overnment shall . . . (C) include in
every recommendation or report on proposals for legislation and other major
[f]ederal actions significantly affecting the quality of the human environment,
a detailed statement by the responsible official on . . . (i) the environmental
impact of the proposed action . . . .’’