Berkshire-Litchfield Environmental Council, Inc. v. Esty ( 2016 )

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BERKSHIRE-LITCHFIELD ENVIRONMENTAL
COUNCIL, INC. v. DANIEL ESTY,
COMMISSIONER OF ENERGY
AND ENVIRONMENTAL
PROTECTION ET AL.
(AC 37044)
Lavine, Alvord and Mihalakos, Js.
Argued October 14, 2015—officially released January 19, 2016
(Appeal from Superior Court, judicial district of
Hartford, Land Use Litigation Docket, Berger, J.)
Nicholas J. Harding, with whom was Mary Mintel
Miller, for the appellant (plaintiff).
Sharon M. Seligman, assistant attorney general, with
whom were Matthew Levine, assistant attorney general,
and, on the brief, George Jepsen, attorney general, and
Kimberly P. Massicotte, assistant attorney general, for
the appellees (defendants).
Opinion
PER CURIAM. The plaintiff, Berkshire-Litchfield
Environmental Council, Inc., appeals from the judgment
of the trial court dismissing its declaratory judgment
action seeking to have the court invalidate a consent
order entered into between the Department of Energy
and Environmental Protection (department) and BNE
Energy, Inc. (BNE Energy),1 concerning remediation
plans for the Canaan Mountain Wilderness Natural Area
Preserve. The court found that the plaintiff lacked
standing to bring the action pursuant to General Stat-
utes § 22a-16.2 On appeal, the plaintiff claims that the
court improperly concluded that it lacked subject mat-
ter jurisdiction. The court had concluded that it lacked
subject matter jurisdiction because the plaintiff failed to
allege specific instances of unreasonable environmental
harm caused by the defendants’ having entered into a
consent order with BNE Energy rather than referring
the issue of BNE Energy’s destruction of more than 332
trees located in Canaan Mountain Wilderness Natural
Area Preserve to the attorney general3 for enforcement
pursuant to General Statutes § 52-560a.4 We affirm the
judgment of the trial court.
In ruling on the defendants’ motion to dismiss, the
court issued a memorandum of decision that concisely
and thoughtfully states the facts and applicable law.
See Berkshire-Litchfield Environmental Council, Inc.
v. Esty, 162 Conn. App. 481, A.3d (2014) (appen-
dix). After examining the record and the briefs and
considering the arguments of the parties on appeal, we
are persuaded that the court correctly determined that it
lacked subject matter jurisdiction. We, therefore, adopt
the court’s thorough and well reasoned memorandum
of decision as the proper statement of the relevant facts,
issues and applicable law. See id. No useful purpose
would be served by repeating that discussion here. See,
e.g., Council 4, AFSCME, AFL-CIO v. State Ethics Com-
mission, 304 Conn. 672, 673, 41 A.3d 656 (2012); Girola-
metti v. Rizzo Corp., 144 Conn. App. 77, 79, 70 A.3d
1162 (2013); Tuite v. Hospital of Central Connecticut,
141 Conn. App. 573, 575, 61 A.3d 1187 (2013).
The judgment is affirmed.
1
The defendants in the present appeal are the department; Daniel Esty,
then commissioner of the department; and Susan Whalen, a deputy commis-
sioner of the department. The attorney general, George Jepsen, was a defen-
dant in the underlying action. The trial court granted the motion to dismiss
him as a party defendant, and the plaintiff has not challenged that determina-
tion on appeal. BNE Energy was not a party to the underlying action and
is not a party to the present appeal.
2
General Statutes § 22a-16 provides in relevant part: ‘‘[A]ny person, part-
nership, 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 . . . for declaratory and
equitable relief against the state, any political subdivision thereof, any instru-
mentality or agency of the state or of a political subdivision thereof . . .
for the protection of the public trust in the air, water and other natural
resources of the state from unreasonable pollution, impairment or destruc-
tion . . . .’’
3
The plaintiff asserts that it is not arguing that the court could order the
defendants to refer the matter to the attorney general, but rather is arguing
only that the consent order was invalid, and that the trial court misunder-
stood its argument. To the contrary, the plaintiff alleged in its complaint
that the defendants ‘‘should have referred the matter to the Attorney General
for enforcement . . . .’’ Its claim of environmental damage is premised on
the assertion that if the defendants had not entered into a consent order,
the attorney general would have brought suit under General Statutes § 52-
560a seeking to have the land restored to its condition prior to the clear-
cutting, and been successful. We agree with the trial court’s understanding
of the plaintiff’s claims, and its resolution of those claims.
4
General Statutes § 52-560a provides in relevant part: ‘‘(b) No person may
encroach or cause another person to encroach on open space land or on
any land for which the state, a political subdivision of the state or a nonprofit
land conservation organization holds a conservation easement interest, with-
out the permission of the owner of such open space land or holder of such
conservation easement or without other legal authorization.
‘‘(c) Any owner of open space land or holder of a conservation easement
subject to the provisions of subsection (b) of this section or the Attorney
General may bring an action in the superior court for the judicial district
where the land is located against any person who violates the provisions
of said subsection with respect to such owner’s land or land subject to such
conservation easement. The court shall order any person who violates the
provisions of subsection (b) of this section to restore the land to its condition
as it existed prior to such violation or shall award the landowner the costs
of such restoration, including reasonable management costs necessary to
achieve such restoration. In addition, the court may award reasonable attor-
ney’s fees and costs and such injunctive or equitable relief as the court
deems appropriate. . . .’’