Not Another Power Plant v. Connecticut Siting Council

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
NOT ANOTHER POWER PLANT v. CONNECTICUT
SITING COUNCIL ET AL.
(SC 20464)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to statute (§ 16-50k (a)), ‘‘no person shall . . . commence the
construction or supplying of a facility . . . that may, as determined by
the [Connecticut Siting] [C]ouncil, have a substantial adverse environ-
mental effect in the state without having first obtained a certificate of
environmental compatibility and public need . . . issued with respect
to such facility or modification by the council.’’
Pursuant further to statute (§ 16-50p (a) (3) (B)), ‘‘[t]he council shall file,
with its order, an opinion stating in full its reasons for the decision.
The council shall not grant a certificate, either as proposed or as modified
by the council, unless it shall find and determine . . . [t]he nature of
the probable environmental impact of the facility alone and cumulatively
with other facilities, including a specification of every significant adverse
effect . . . .’’
The plaintiff, a nonprofit association formed to promote environmental
conservation in the town of Killingly, appealed to the trial court from
the decision of the defendant council, which approved the application of
the defendant energy company, N Co., for a certificate of environmental
compatibility and public need in connection with an electric generating
facility that N Co. sought to construct in the town. The plaintiff had
intervened in the administrative proceeding pursuant to statute (§ 22a-
19 (a) (1)), claiming that approval of the facility would result in the
unreasonable pollution and impairment of the public trust in the environ-
ment. According to N Co.’s application, the facility would be supplied
with natural gas by E Co., which owns a distribution pipeline that extends
from a mainline to the site of the proposed facility. For the facility to
function, however, E Co. would need to replace approximately two
miles of its existing distribution pipeline with an upgraded pipeline
that would cross or abut wetlands, a river, and certain preserved or
undeveloped lands. The plaintiff moved to dismiss or to stay N Co.’s
application, claiming that the council was required to consider the envi-
ronmental impact of the upgraded pipeline when weighing the public
benefit of the facility against the harm that it would cause to the environ-
ment under § 16-50p (c) (1) of the Public Utility Environmental Standards
Act (act) and that N Co. had neither obtained a commitment as to
the design of the upgraded pipeline from E Co. nor fully assessed the
environmental impact the upgraded pipeline would have. The council
denied the plaintiff’s motion and, after hearings, approved N Co.’s appli-
cation for a certificate, without ever considering the potential environ-
mental effects of the upgraded pipeline. The council found that the
facility was necessary for the reliability of the electric power supply of
the state and, therefore, would be a public benefit, and that the adverse
impacts of the facility were not disproportionate, either alone or cumula-
tively, when compared to the public benefit. On appeal to the trial court,
the plaintiff claimed that the council had improperly segmented the
project into two components, namely, N Co.’s electric generating facility
and E Co.’s upgraded pipeline, to avoid a comprehensive review of the
project’s overall environmental impact. After rejecting N Co.’s special
defense that the plaintiff lacked standing to appeal, the trial court con-
cluded that, although the facility was intertwined with the upgraded
pipeline insofar as the facility, as planned, could not operate without
it, the council reasonably decided to consider them separately because,
under the act, electric generating facilities and fuel transmission lines
are separate facilities to be considered under different provisions and
submitted by two unrelated parties. The court also observed that E Co.
would need to apply for a certificate of environmental compatibility
and public need under § 16-50k (a) to construct the upgraded pipeline
and stated that it would consider the pipeline’s environmental impact
at that time. Further, the trial court concluded that the plaintiff had
neither pointed to any environmental concerns with the facility itself
nor claimed that combining the environmental impact of the facility with
that of the upgraded pipeline would result in an increased environmental
impact. Accordingly, the trial court rejected the plaintiff’s improper
segmentation claim, concluded that the plaintiff failed to establish that
the council had improperly approved N Co.’s application, and rendered
judgment dismissing the plaintiff’s administrative appeal. On the plain-
tiff’s appeal, held:
1. The trial court correctly concluded that the plaintiff had standing to
appeal under § 22a-19 (a) (1) from the council’s decision, the plaintiff
having asserted a colorable claim of potential impairment of or destruc-
tion to the environment by alleging in its complaint that the council’s
improper segmentation of the project into two separate components,
in order to avoid a comprehensive review of the project’s overall impact,
would result in a substantial likelihood of such impairment or destruc-
tion.
2. The plaintiff could not prevail on its claim that the trial court incorrectly
determined that the council’s failure to consider the environmental
impact of E Co.’s future, upgraded pipeline when weighing the public
benefit of the electric generating facility against the harm that it would
cause to the environment was not arbitrary and capricious:
a. Contrary to the council’s claim, the plaintiff did not waive its claim
regarding the council’s refusal to consider the environmental impact of
the upgraded pipeline by failing to challenge the council’s finding that
the facility would provide a public benefit in the trial court; the very
reason that the plaintiff argued that the council was required to consider
the impact of the upgraded pipeline was that, if it had done so, it might
have concluded that the adverse environmental impact of the facility
and the upgraded pipeline together outweighed the public benefit, and
the plaintiff’s counsel expressly raised that argument in the trial court.
b. The council was not prohibited under the act from considering the
environmental impact of E Co.’s future, upgraded pipeline when consider-
ing N Co.’s application for a certificate for the electric generating facility;
the language of § 16-50p (a) (3) (B) specifies the environmental factors
that the council must consider and address in its written decision, a
review of the statutory scheme revealed that the act does not specify
matters that the council may not consider when balancing the public
benefit of the proposed facility against the harm it would cause to the
environment, and this court could perceive no reason why the legislature
would have wanted to prohibit the council from considering any informa-
tion that would be relevant to this balancing process; accordingly, when
determining whether a facility under review will have a public benefit,
the council is authorized to consider the facts that that facility is interde-
pendent with another facility that does not yet exist and that there is a
significant likelihood that the nonexistent facility ultimately may not
be approved because its harmful effects, considered together with the
harmful effects of the facility under review, could outweigh the public
benefit of the facilities considered as a whole; moreover, although the
council cannot, as a practical matter consider the actual environmental
impact of a future project, the nature and scope of which has yet to be
determined, the general notion that the council should weigh the overall
benefits that interdependent projects will provide to the public against
their overall impact on the environment was supported by both common
sense and federal case law disfavoring the use of improper segmentation.
c. The council’s decision not to consider the potential environmental
impact of the upgraded pipeline during the proceedings on N Co.’s appli-
cation for a certificate for the facility was not arbitrary and capricious:
although this court disagreed with the trial court’s determination that
the plaintiff did not claim that combining the environmental impact of
the electric generating facility with that of the upgraded pipeline would
result in an increased environmental impact, the plaintiff having very
clearly claimed that the sum of their effects would be greater than the
effect of either project considered alone and that the cumulative effect
should be weighed against the public benefit, the trial court correctly
determined that the council did not improperly segment the project on
the grounds that the environmental impact of the upgraded pipeline
would necessarily be considered by the council in a future proceeding
and that the risk and cost of failing to obtain approval of the upgraded
pipeline would be borne solely by N Co., which would have to post
a decommissioning bond and to develop a decommissioning plan for
restoring the facility site if the council did not ultimately approve the
upgraded pipeline.
3. The plaintiff could not prevail on its unpreserved claim that the trial court
based its conclusion that the council and N Co. did not improperly
segment the project on the incorrect assumption that, under § 16-50k
(a), E Co. would be required to apply for a certificate of environmental
compatibility and public need in connection with the upgraded pipeline;
to the extent that the plaintiff claimed that the trial court failed to
recognize that E Co. could evade the council’s review by seeking review
of the pipeline by another state or federal agency, the plaintiff made no
such claim in the trial court, where the plaintiff’s counsel expressly
stated that she had every reason to believe that the council would
thoroughly evaluate the environmental impacts of the pipeline and that
her only concern was that the council would not be evaluating the
cumulative impact of the facility and the upgraded pipeline, and, accord-
ingly, any such claim was waived; moreover, any error with respect to
the trial court’s failure to recognize that, under § 16-50k (a), E Co. could
file a petition for a declaratory ruling from the council that the upgraded
pipeline would not have a substantial adverse environmental effect,
rather than applying for a certificate of environmental compatibility and
public need, was harmless, as the statutory and regulatory provisions
governing petitions for a declaratory ruling from the council were not
facially inadequate to ensure that the council would fully and fairly
consider the issue, and any claim that the council would not do so in
the present case was not ripe for review.
(One justice concurring separately; two justices concurring
in part and dissenting in part in one opinion)
Argued September 10, 2020—officially released September 28, 2021*
Procedural History
Appeal from the decision of the named defendant
approving the application by the defendant NTE Con-
necticut, LLC, for the construction of an electric gener-
ating facility, brought to the Superior Court in the judi-
cial district of New Britain and tried to the court,
Cordani, J.; judgment dismissing the appeal, from
which the plaintiff appealed. Affirmed.
Mary Mintel Miller, for the appellant (plaintiff).
Robert L. Marconi, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Clare E. Kindall, solicitor general, for the
appellee (named defendant).
Linda L. Morkan, with whom were Kenneth C. Bal-
dwin, James P. Ray and, on the brief, Emilee Mooney
Scott, for the appellee (defendant NTE Connecticut,
LLC).
Opinion
ROBINSON, C. J. The principal issue in this appeal
is whether the named defendant, the Connecticut Siting
Council (council), properly refused to consider the envi-
ronmental impact of installing a gas pipeline to a pro-
posed electric generating facility when weighing the
public benefit of the facility against its probable envi-
ronmental impact pursuant to the Public Utility Envi-
ronmental Standards Act (act), General Statutes § 16-
50g et seq. The defendant NTE Connecticut, LLC (NTE),
submitted an application to the council seeking a certifi-
cate 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).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 envi-
ronmental 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 administra-
tive appeal. On appeal to this court,2 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.
The record reveals the following facts, which were
found by the council and the trial court or are undis-
puted, and procedural history. On August 17, 2016, NTE
filed with the council an application for a certificate of
environmental compatibility and public need (certifi-
cate) pursuant to General Statutes § 16-50k (a).3 NTE
explained in the application that ‘‘[n]atural gas will be
provided [to the facility] through a firm natural gas fuel
supply contract . . . .’’ The natural gas would be sup-
plied through an upgraded gas pipeline to be con-
structed and owned by Eversource Energy Service
Company (Eversource). Eversource currently owns and
operates an approximately fifty year old distribution
gas pipeline that extends from a mainline located
approximately two miles from the proposed facility site.
Eversource would replace the distribution pipeline with
a new pipeline with a diameter of at least fourteen
inches. NTE further explained that it was seeking autho-
rization to use ultra-low sulfur distillate as a fuel for
the facility for up to 720 hours per year, although actual
use was ‘‘expected to occur on the order of several
hours once every two to three years and only under
the circumstance where natural gas supply is not avail-
able.’’4
The plaintiff successfully sought permission to inter-
vene in the proceeding pursuant to § 22a-19 (a) (1),
claiming that approval of the facility would result in
the unreasonable pollution and impairment of the pub-
lic trust in the environment.5 Thereafter, the plaintiff
filed a motion for a stay and/or to dismiss the applica-
tion, in which it claimed that the council was required
to consider the environmental impact of the future gas
pipeline when weighing the public benefit of the facility
against the harm that it would cause to the environment,
as required by General Statutes § 16-50p.6 The plaintiff
pointed out in the motion that the new pipeline would
cross or abut (1) large wetland areas, (2) open space
and protected land held by the Wyndham Land Trust,
(3) the Bafflin Sanctuary, which is owned by the Con-
necticut Audubon Society, and the Air Line State Park
Trail, (4) a large, undeveloped parcel owned by the
Pomfret Rod and Gun Club, and (5) the Quinebaug
River. The plaintiff also pointed out that NTE had not
obtained a firm commitment as to the design and con-
struction of the new pipeline and had not fully assessed
the environmental impact that it would have. Accord-
ingly, the plaintiff contended that the council should
dismiss NTE’s application or stay proceedings on it
until the council could consider Eversource’s applica-
tion with respect to the pipeline. The council denied
the motion on the ground that ‘‘the application was
deemed complete by the [c]ouncil on September 15,
2016, and the feasibility of the utility interconnections
will be explored during the course of these proceed-
ings.’’
During the hearings on NTE’s application, counsel
for the plaintiff asked counsel for NTE, Mark Mirabito,
whether it was ‘‘fair to say that with respect to th[e]
gas pipeline . . . there’s no evidence in th[e] record
before [the council] for [it] to determine what impacts
. . . installation of this gas pipeline will have . . . on
the wetlands, open space, state park and land trust lands
and the Quinebaug River . . . .’’ Another attorney for
NTE, Kenneth C. Baldwin, objected to the question on
the ground that ‘‘the [c]ouncil has already determined
that it will review those impacts at a future time in an
application filed by the appropriate party, in this case,
Yankee Gas.’’7 The council’s chairman, Robert Silvestri,
stated, ‘‘that is correct.’’ Counsel for the plaintiff then
asked for clarification as to whether the council would
be considering the environmental impact of the new
pipeline. Counsel for the council, Melanie A. Bachman,
stated that, ‘‘throughout the proceeding, [the council
has] had discussions that the pipeline would be the
subject of a petition from Yankee Gas if this application
is approved. . . . However, [the council is] not even
sure if [it is] going to approve the application, or [the
council] may modify it. [It] may move it. [The council]
may be taking components and [putting] them in differ-
ent areas. . . . So, it’s all somewhat premature to dis-
cuss the actual route of the gas lateral . . . . So,
although . . . you’re not prohibited from asking ques-
tions about environmental impact . . . the under-
standing that we have . . . is that . . . those petitions
would be filed by the entities over which they have
contracts. But right now, it’s a little premature not
knowing whether [the council] may decide to modify
the facility or approve it at all.’’
The council found that the proposed facility was ‘‘nec-
essary for the reliability of the electric power supply
of the state’’ and, therefore, that it would be a public
benefit. The council further concluded, without consid-
ering the potential environmental effects of the future
gas pipeline, that the facility would not be ‘‘in conflict
with the policies of the state concerning the natural
environment, ecological balance, public health and
safety, scenic, historic, and recreational values, agricul-
ture, forests and parks, air and water purity, and fish,
aquaculture and wildlife, together with all other envi-
ronmental concerns . . . .’’ Finally, the council con-
cluded that the adverse impacts of the proposed facility
‘‘are not disproportionate either alone or cumulatively
with other effects when compared to [the] public bene-
fit, are not in conflict with [the] policies of the [s]tate
concerning such effects, and are not sufficient reason
to deny the application.’’ Accordingly, it directed that
a certificate be issued to NTE.
The plaintiff brought this administrative appeal from
the council’s decision to the trial court pursuant to
General Statutes § 4-183. The plaintiff contended that
the council had improperly segmented ‘‘the project’’—
namely, the electric generating facility together with
the gas pipeline that would be required to provide fuel
to the facility—into separate projects to avoid a compre-
hensive review of its overall environmental impact. NTE
denied the plaintiff’s substantive claims and raised the
special defense that the plaintiff lacked standing to
bring the administrative appeal. Specifically, NTE con-
tended that, because the council’s decision was related
only to the electric generating facility, and because the
plaintiff made no claim that the construction and opera-
tion of that facility, standing alone, would cause harm
to the environment, the plaintiff lacked statutory stand-
ing under § 22a-19 (a) (1). The council also denied the
plaintiff’s substantive claims.
The trial court rejected NTE’s claim that the plaintiff
lacked standing, concluding that, because the plaintiff
contended that the council should have considered the
electric generating facility and gas pipeline as one proj-
ect, and because it alleged that the gas pipeline was
reasonably likely to have the effect of unreasonably
polluting, impairing or destroying the public trust in
the natural resources of the state, its claims were suffi-
cient to establish statutory standing under § 22a-19 (a)
(1). Addressing the merits of the plaintiff’s claim that
the council had improperly segmented the project, the
trial court concluded that ‘‘[t]he power plant and the
theoretical future pipeline are different ‘facilities’ as
defined in the statute, [they] are to be considered under
different statutory provisions, and [they] are to be sub-
mitted to the council by two unrelated parties. Accord-
ingly, the council . . . reasonably decided to consider
them separately.’’
The trial court acknowledged that the electric gener-
ating facility was ‘‘intertwined with some form of an
upgraded Eversource natural gas pipeline because the
facility cannot function as planned and as approved
without some form of an upgraded pipeline.’’ The court
also concluded, however, that the plaintiff had ‘‘not
pointed to any [environmental] concerns with the facil-
ity itself, [or] any concerns that arise from the combina-
tion of the facility with the upgraded pipeline . . . .’’
The court further observed that the ‘‘upgraded pipeline
will need a certificate from the council, so there is no
doubt that the council will consider the impacts from
any pipeline upgrade, and the council has explicitly
stated that [it] will consider the upgraded pipeline when
it is presented to it by Eversource.’’ Finally, the trial
court noted that, if the council did not approve the
upgraded pipeline, NTE would have to post a decom-
missioning bond and to develop a decommissioning
plan for restoring the site of the facility, and the risk
and cost of the failure to obtain approval of the gas
pipeline would be borne solely by NTE. Accordingly, the
court rejected the plaintiff’s contention that ‘‘improper
segmentation’’ had occurred. Having concluded that the
plaintiff failed to establish that the council had improp-
erly approved NTE’s application for a certificate, the
court rendered judgment dismissing the plaintiff’s
administrative appeal. This appeal followed.
On appeal, the plaintiff claims that the trial court
incorrectly determined that the council was not
required to consider the environmental impact of the
future gas pipeline when weighing the public benefit
of the electric generating facility against the harm that
it would cause to the environment. The plaintiff points
out that, without the gas pipeline, the facility will effec-
tively be inoperable and, therefore, will have no public
benefit. It is therefore clear, the plaintiff contends, that
the council must have considered the public benefit of
the facility and the pipeline together. To this end, the
plaintiff additionally contends that the trial court incor-
rectly concluded that the environmental impact of the
gas pipeline necessarily will be taken into account at
some future point because Eversource will be required
to apply to the council for a separate certificate before
it can install the pipeline. The plaintiff points out that
Eversource could request a declaratory ruling from the
council that the pipeline would not have a substantial
adverse environmental effect, in which case no certifi-
cate would be required. See General Statutes § 16-50k
(a). Accordingly, the plaintiff claims that the council
also should have considered the environmental impact
of the facility and the pipeline together when weighing
the public benefit against the harm to the environment
and that its refusal to do so was arbitrary and capricious.
In response, the council contends that the plaintiff
waived any claim that the council improperly found
that the electric generating facility would provide a
public benefit by failing to claim in the trial court that
the council had improperly balanced the public benefit
of the electric generating facility against the harm to
the environment. The council also claims that, even if
this claim was not waived, it is meritless and that the
trial court correctly determined that the council had
not improperly segmented the project. With respect
to the plaintiff’s claim that the trial court incorrectly
determined that Eversource will be required to apply
for a certificate for the gas pipeline, the council con-
tends that, even if that is the case, the environmental
impact of the pipeline would necessarily be considered
in any proceeding on a request for a declaratory ruling,
and, therefore, any error was harmless. Finally, as an
alternative ground for affirming the judgment of the
trial court, the council raises the claim that the plaintiff
lacked standing to appeal from the council’s decision
because it failed to allege that the decision would result
in the impairment or destruction of the environment.
For its part, NTE claims that the council correctly
determined that the act does not authorize the council
to consider the environmental impact of future facili-
ties, such as the gas pipeline, that have not yet been
proposed or approved. Somewhat inconsistently, NTE
also contends that the decision whether to consider the
environmental impact of the gas pipeline was discre-
tionary and that the council did not abuse its discretion
when it declined to consider it. With respect to the
plaintiff’s second claim, NTE contends that the plaintiff
did not properly preserve for review the issue of
whether NTE will be required to apply for a certificate
because it never raised the claim before the council or
in the trial court. It further contends that the trial court
did not assume that NTE would have to apply for a
certificate, but assumed only that the environmental
impact of the gas pipeline would have to be considered
in some forum. Finally, NTE joins the council in claim-
ing, as an alternative ground for affirmance, that the
plaintiff lacked standing to appeal to the Superior Court.
I
Because it implicates the trial court’s subject matter
jurisdiction, we first address the defendants’ claim that
the plaintiff lacked standing to appeal from the council’s
decision because it made no colorable claim that the
decision would result in the impairment or destruction
of the environment. We disagree.
We begin with the standard of review. ‘‘[I]n ruling on
a motion to dismiss, the trial court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.’’
(Internal quotation marks omitted.) Fort Trumbull Con-
servancy, LLC v. New London, 265 Conn. 423, 432–33,
829 A.2d 801 (2003). ‘‘Because a determination regard-
ing the trial court’s subject matter jurisdiction raises a
question of law, our review is plenary.’’ (Internal quota-
tion marks omitted.) Financial Consulting, LLC v.
Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d
210 (2014).
‘‘This court repeatedly has held that a person who
intervenes in an administrative proceeding pursuant to
§ 22a-19, and who is aggrieved by the agency’s decision,
is entitled to appeal from that decision pursuant to
the statutory provisions governing appeals from the
decisions of that particular agency.’’ Finley v. Inland
Wetlands Commission, 289 Conn. 12, 25–26, 959 A.2d
569 (2008). ‘‘An intervenor pursuant to § 22a-19 has
standing to bring an appeal from an agency’s decision
only to protect the natural resources of the state from
pollution or destruction.’’ (Internal quotation marks
omitted.) Id., 34. ‘‘Although a plaintiff seeking to assert
a claim under § [22a-19] need not prove [its] case in
order to survive a motion to dismiss, [it] nevertheless
must articulate a colorable claim of unreasonable pollu-
tion, impairment or destruction of the environment.’’
(Internal quotation marks omitted.) Windels v. Envi-
ronmental Protection Commission, 284 Conn. 268,
289–90, 933 A.2d 256 (2007). ‘‘A complaint does not
sufficiently allege standing . . . by merely reciting the
provisions of § [22a-19], but must set forth facts to sup-
port an inference that unreasonable pollution, impair-
ment or destruction of a natural resource will probably
result from the challenged activities unless remedial
measures are taken.’’ (Internal quotation marks omit-
ted.) Finley v. Inland Wetlands Commission, supra, 35.
In the present case, the plaintiff alleged in its com-
plaint that the council had impermissibly segmented the
project into two separate projects, namely, the electric
generating facility and the gas pipeline, ‘‘in order to
avoid a comprehensive review of [the] facility . . . .’’
The plaintiff further alleged that ‘‘[s]egmentation is to
be avoided in order to ensure that interrelated projects,
the overall effect of which is environmentally signifi-
cant, not be fractionalized into smaller, less significant
actions.’’ Read in the light most favorable to the pleader,
these allegations necessarily imply that the reason that
segmentation is problematic is that it is more likely that
an agency conducting an environmental impact review
will approve each separate segment of a project than
if the agency considered the project as a whole. In turn,
this necessarily implies that segmentation could result
in an overall adverse impact on the environment that
the agency might well have found to be unreasonable
if it had considered the overall impact. Put differently,
the improper segmentation of the project by the council
would result in a substantial likelihood of the unreason-
able impairment or destruction of the environment. We
conclude, therefore, that the trial court correctly deter-
mined that the plaintiff had standing to bring this appeal.
II
We next address the plaintiff’s claim that the trial
court incorrectly determined that the council’s refusal
to consider the environmental impact of the future gas
pipeline when weighing the public benefit of the electric
generating facility against the harm that it would cause
to the environment was not arbitrary and capricious.
We disagree.
A
As a preliminary matter, we address the council’s
contention that the plaintiff waived this claim by failing
to raise it in the trial court. Specifically, the council
contends that the plaintiff never challenged the coun-
cil’s finding that the facility would provide a public
benefit in the trial court but claimed only that the coun-
cil should have considered the environmental impact
of the future gas pipeline. The very reason that the
plaintiff contended that the council was required to
consider the impact of the pipeline, however, was that,
if it had done so, it might have concluded that the
adverse environmental impact of the facility and the
pipeline, considered as a whole, outweighed the public
benefit. Indeed, the plaintiff expressly made this argu-
ment to the trial court when counsel for the plaintiff
stated that, although she had ‘‘every reason to believe
that [the council] will do a thorough job evaluating what
the environmental impacts are of the pipeline [during
future proceedings before the council] . . . what the
. . . council actually does is a balancing test.’’ Counsel
for the plaintiff further argued that this balancing test
was ‘‘the essence of what [the defendants are] trying
to avoid by segmenting the project . . . .’’ Specifically,
she argued that, because the council assumed that the
pipeline would provide a great public benefit by render-
ing the electric generating facility operable but did not
consider the pipeline’s potentially severe environmental
impact, ‘‘the balancing might [well] be off . . . .’’ In
other words, if the council had declined to presume
that the pipeline would provide a public benefit by
rendering the electric generating facility operable, it
could well have found that the public benefit provided
by the electric generating facility was speculative. We
conclude, therefore, that the plaintiff did not waive
this claim.
B
We turn therefore to the merits of the plaintiff’s claim
that the council had the statutory authority to consider
the environmental impact of the future gas pipeline
when considering NTE’s application for a certificate
for the electric generating facility and that its refusal
to do so was arbitrary and capricious. We begin our
analysis with the standard of review. ‘‘Neither this court
nor the trial court may retry the case or substitute its
own judgment for that of the administrative agency on
the weight of the evidence or questions of fact.’’ (Inter-
nal quotation marks omitted.) Cadlerock Properties
Joint Venture, L.P. v. Commissioner of Environmental
Protection, 253 Conn. 661, 676, 757 A.2d 1 (2000), cert.
denied, 531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d
963 (2001). ‘‘The court shall affirm the decision of the
agency unless the court finds that substantial rights of
the person appealing have been prejudiced because
the administrative findings, inferences, conclusions, or
decisions are . . . arbitrary or capricious or character-
ized by abuse of discretion or clearly unwarranted exer-
cise of discretion.’’ General Statutes § 4-183 (j) (6).
Moreover, ‘‘courts should accord deference to an
agency’s formally articulated interpretation of a statute
when that interpretation is both time-tested and reason-
able.’’ Longley v. State Employees Retirement Commis-
sion, 284 Conn. 149, 166, 931 A.2d 890 (2007). Because
the council’s position that the act prohibits it from con-
sidering facilities, such as the gas pipeline, that are not
currently existing when determining ‘‘[t]he nature of
the probable environmental impact of the facility alone
and cumulatively with other existing facilities’’ pursuant
to § 16-50p (a) (3) (B) is not time-tested, our review is
de novo. See, e.g., Woodrow Wilson of Middletown, LLC
v. Connecticut Housing Finance Authority, 294 Conn.
639, 644, 986 A.2d 271 (2010).
‘‘When construing a statute, [o]ur fundamental objec-
tive 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,
General 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 relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . The test to deter-
mine ambiguity is whether the statute, when read in
context, is susceptible to more than one reasonable
interpretation. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
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 gen-
eral subject matter . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id., 644–45.
Accordingly, we turn to the language of the applicable
statutes. Section 16-50p (a) (3) provides in relevant part:
‘‘The council shall file, with its order, an opinion stating
in full its reasons for the decision. The council shall
not grant a certificate, either as proposed or as modified
by the council, unless it shall find and determine . . .
(B) The nature of the probable environmental impact of
the facility alone and cumulatively with other existing
facilities, including a specification of every significant
adverse effect . . . that, whether alone or cumulatively
with other effects, impact[s] on, and conflict[s] with
the policies of the state concerning the natural environ-
ment . . . (C) Why the adverse effects or conflicts
referred to in subparagraph (B) of this subdivision are
not sufficient reason to deny the application . . . .’’
(Emphasis added.) Section 16-50p (c) (1) provides: ‘‘The
council shall not grant a certificate for a facility described
in subdivision (3) of subsection (a) of section 16-50i,
either as proposed or as modified by the council, unless
it finds and determines a public benefit for the facility
and considers neighborhood concerns with respect to
the factors set forth in subdivision (3) of subsection
(a) of this section, including public safety.’’ Section 16-
50p (c) (3) provides: ‘‘For purposes of this section, a
public benefit exists when a facility is necessary for
the reliability of the electric power supply of the state
or for the development of a competitive market for
electricity and a public need exists when a facility is
necessary for the reliability of the electric power supply
of the state.’’ ‘‘Facility’’ is defined by the act to include
‘‘a fuel transmission facility’’; General Statutes § 16-50i
(a) (2); and ‘‘any electric generating . . . facility
. . . .’’ General Statutes § 16-50i (a) (3).
As we have indicated, NTE claims that these provi-
sion do not authorize the council to consider the poten-
tial environmental impact of a future project—in this
case, the pipeline—when balancing the public benefit
of a proposed facility against its adverse impact on
the environment. Specifically, it contends that, because
§ 16-50p (a) (3) (B) expressly refers to ‘‘the probable
environmental impact of the facility alone and cumula-
tively with other existing facilities’’; (emphasis added);
and because § 16-50i (a) defines electric generating
facilities and fuel transmission lines as separate facili-
ties, notwithstanding the fact that a particular fuel may
be required to render a particular facility operable, the
statutes clearly and unambiguously allowed the council
to consider only the environmental impact of the facility
together with the impact other existing facilities, and
not the impact of a nonexistent fuel transmission line.
We conclude that these statutes did not prohibit the
council from considering the potential impact of the
gas pipeline in the proceedings on NTE’s application
for a certificate for the electricity generating facility.
Section 16-50p (a) (3) (B) imposes an obligation on the
council to ‘‘file . . . an opinion stating in full its rea-
sons for the decision’’ that it has issued, in which it must
‘‘find and determine . . . [t]he nature of the probable
environmental impact of the facility alone and cumula-
tively with other existing facilities . . . .’’ (Emphasis
added.) Thus, the statute specifies the environmental
factors that the council must consider and that it must
expressly address in its written decision. The obvious
intent of these provisions is to ensure that the council
makes fully informed decisions and that it diligently
carries out, and is clearly seen to carry out, its statutory
duty ‘‘to protect the environment and ecology of the
state and to minimize damage to scenic, historic, and
recreational values’’ to the extent reasonably possible,
consistent with the state’s need for ‘‘adequate and reli-
able public utility services at the lowest reasonable cost
to consumers . . . .’’ General Statutes § 16-50g. These
provisions also ensure that there is an adequate record
for judicial review of the council’s decisions. Contrary
to NTE’s claim, the statute does not specify matters
that the council may not consider when balancing the
public benefit of the proposed facility against the harm
that it will cause to the environment. Indeed, we can
perceive no reason why the legislature would have
wanted to prohibit the council from considering any
information that would be relevant to this balancing
process.
We recognize that, as a purely practical matter, the
council cannot consider the actual environmental
impact of a future project, the nature and scope of
which is indeterminate and that has not yet even been
proposed. That does not mean, however, that the coun-
cil is required to ignore the fact that a proposed facility
will depend on the future existence of another facility
that may well have a significant adverse effect on the
environment.8 Cf. Delaware Riverkeeper Network v.
Federal Energy Regulatory Commission, 753 F.3d
1304, 1310 (D.C. Cir. 2014) (‘‘an agency need not foresee
the unforeseeable, but . . . [r]easonable forecasting
and speculation [are] . . . implicit in [the National
Environmental Policy Act (NEPA)], and we must reject
any attempt by agencies to shirk their responsibilities
under NEPA by labeling any and all discussion of future
environmental effects as crystal ball inquiry’’ (internal
quotation marks omitted)). Indeed, we see nothing in
the act that would preclude the council from concluding
under such circumstances that, for example, the public
benefit of the proposed facility is entirely speculative
because there is a significant likelihood that the second,
future facility will not be approved, and then either
(1) staying the proceedings on the application for a
certificate pending approval of the second facility,9 (2)
conditioning the approval of the facility under review
on approval of the second facility; see General Statutes
§ 16-50p (a) (1) and (b) (2) (authorizing council to
impose conditions on approval); or (3) denying the
application for a certificate without prejudice to resub-
mitting it when the second facility has been approved.10
This conclusion finds support in federal case law
addressing the problem of ‘‘segmentation.’’ In Stewart
Park & Reserve Coalition, Inc. v. Slater, 352 F.3d 545,
559–60 (2d Cir. 2003), the plaintiff claimed that the
defendants had improperly attempted to circumvent
NEPA by engaging in segmentation, that is, by breaking
the proposed construction project into smaller projects
and failing to consider the overall impact of the entire
project. The United States Court of Appeals for the
Second Circuit recognized that ‘‘[s]egmentation is to be
avoided in order to [e]nsure that interrelated projects,
the overall effect of which is environmentally signifi-
cant, not be fractionalized into smaller, less significant
actions.’’ (Internal quotation marks omitted.) Id., 559.
‘‘A project is properly segmented if it (1) connects logi-
cal termini and is of sufficient length to address environ-
mental matters of a broad scope; (2) has independent
utility or independent significance; and (3) will not
restrict consideration of alternatives for other reason-
ably foreseeable transportation improvements.’’ Id. ‘‘A
project has been improperly segmented, on the other
hand, if the segmented project has no independent util-
ity, no life of its own, or is simply illogical when viewed
in isolation.’’ Id. Similarly, the court in Delaware Riv-
erkeeper Network v. Federal Energy Regulatory Com-
mission, supra, 753 F.3d 1304, recognized that ‘‘[a]n
agency impermissibly segments NEPA review when it
divides connected, cumulative, or similar federal
actions into separate projects and thereby fails to
address the true scope and impact of the activities that
should be under consideration. The [United States]
Supreme Court has held that, under NEPA, proposals
for . . . actions that will have cumulative or syner-
gistic environmental impact [on] a region . . . pending
concurrently before an agency . . . must be consid-
ered together. Only through comprehensive consider-
ation of pending proposals can the agency evaluate
different courses of action.’’11 (Internal quotation marks
omitted.) Id., 1313, quoting Kleppe v. Sierra Club, 427
U.S. 390, 410, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976).
We recognize that, as the defendants in the present
case contend and as we have already suggested, the
specific rule of Stewart Park & Reserve Coalition, Inc.
v. Slater, supra, 352 F.3d 559, namely, that agencies
must consider the actual environmental impact of inter-
dependent projects, cannot apply when the facility
under review will be interdependent with a nonexistent
facility, the scope and nature of which is then unknown.
We also recognize that these federal cases did not
involve a situation in which the proposals for the inter-
dependent projects will be submitted by different par-
ties. Nevertheless, the general notion that the council
should weigh the overall benefits that interdependent
projects will provide to the public against their overall
impact on the environment is simply a matter of com-
mon sense. As the plaintiff in the present case points
out, if the environmental impact of a future facility that
will be interdependent with the facility under review
is entirely unknown, whether the public benefit of the
facility under review outweighs its environmental
impact must also be unknown. It is possible that the
facility will have no public benefit because it is possible
that the future facility will not be approved. Moreover,
as we have also suggested, there are procedural mecha-
nisms by which the council can overcome the difficul-
ties posed by the facts that the nature and scope of a
future project is currently unknown and a different
party will be seeking approval for the project.
In support of their argument that the act does not
authorize the council to consider an interdependent
facility that does not yet exist when balancing the public
benefit that will be provided by a proposed facility
against the harm that it will cause to the environment,
the defendants cite two Superior Court cases, New
Haven v. Connecticut Siting Council, Docket No. CV-
XX-XXXXXXX-S, 2002 WL 847970 (Conn. Super. April 9,
2002) (New Haven I), and New Haven v. Connecticut
Siting Council, Superior Court, judicial district of New
Britain, Docket No. CV-XX-XXXXXXX-S (August 21, 2002)
(33 Conn. L. Rptr. 187) (New Haven II). In New Haven
I, the plaintiffs, the city of New Haven and the attorney
general, sought a stay pending the trial court’s ruling
on their administrative appeal from the council’s
approval of the installation of an electric transmission
cable under Long Island Sound. See New Haven v. Con-
necticut Siting Council, supra, 2002 WL 847970, *1. The
plaintiffs contended that state environmental law, as
well as NEPA, required the council to consider the
cumulative impact of the cable and other cables when
balancing its public benefit against the harm that it
would cause to the environment. See id. The Superior
Court noted that, under General Statutes (Rev. to 2001)
§ 16-50p (c) (2) (B), the council was required to consider
‘‘ ‘every single adverse and beneficial effect that,
whether alone or cumulatively with other effects, con-
flict[s] with the policies of the state concerning the
natural environment . . . .’ ’’ Id. The court concluded
that the statute required the council to consider only
the effects of the facility under review and not the
effects of other, future facilities. Id., *2. The court fur-
ther concluded that, even if the case law construing
NEPA applied to the act, that case law ‘‘requires that an
entity filing an environmental impact statement address
related proposals only when the project in question has
no ‘independent utility.’ ’’ Id.
In New Haven II, the Superior Court’s decision on
the merits of the plaintiffs’ appeal, the court addressed
these claims again, and it again concluded that the con-
trolling statutory provisions did not require the council
to consider the environmental effects of other facilities
that were planning to seek certificates. See New Haven
v. Connecticut Siting Council, supra, 33 Conn. L. Rptr.
194. The court stated that ‘‘[i]t is entirely logical for an
agency to consider only the environmental impact of
the proposal before it, and then take that impact into
account when evaluating subsequent proposals.’’ Id.With respect to the plaintiffs’ reliance on federal case
law applying NEPA, the court concluded that General
Statutes (Rev. to 2001) § 16-50g, which provided that
one of the purposes of the act is to ‘‘ ‘provide environ-
mental quality standards and criteria for the location,
design, construction and operation of facilities for the
furnishing of public utility services at least as stringent
as the federal environmental quality standards and crite-
ria,’ ’’ does not make every regulation of the federal
Council on Environmental Quality and the United States
Environmental Protection Agency regarding federal
environmental quality standards and criteria applicable
to the council. Id., 196.
We conclude that these cases do not support the
defendants’ position. The court in New Haven I held
only that, even assuming that federal case law applying
NEPA applies to the act, it would not require the council
to consider the environmental impact of future facilities
when those facilities are not interdependent with the
facility under review; see New Haven v. Connecticut
Siting Council, supra, 2002 WL 847970, *2; a conclusion
with which we entirely agree. We also agree with the
court’s conclusion in New Haven II that, if future facili-
ties are not interdependent with the facility under
review, it would make sense for the council to consider
the cumulative effects of the facilities when the future
facilities submit applications for certificates. See New
Haven v. Connecticut Siting Council, supra, 33 Conn.
L. Rptr. 194. Finally, we agree with the Superior Court’s
statement that § 16-50g does not incorporate every regu-
lation and procedural requirement of federal environ-
mental law into the act. See id., 196. As we have already
indicated, however, the federal case law addressing the
segmentation of interdependent projects finds a basis
not only in federal regulations but also in common-
sense notions that are equally applicable to the interpre-
tation and application of the state act. Accordingly, we
conclude that the act did not prohibit the council from
considering an interdependent facility that does not yet
exist when balancing the public benefit that will be
provided by a proposed facility against the harm that
it will cause to the environment.
C
We now turn to the record in the present case to
determine whether the trial court correctly determined
that the council’s refusal to consider the potential envi-
ronmental impact of the gas pipeline during the pro-
ceedings on NTE’s application for a certificate was not
arbitrary and capricious. The trial court concluded that
the electric generating facility and the gas pipeline were
interdependent because the facility would not be able
to operate as intended without the pipeline, and the
defendants do not seriously challenge that conclusion
on appeal. The trial court also concluded, however, that
the council had not improperly segmented the project
into two separate projects because (1) the plaintiff had
not claimed that the combination of the electric generat-
ing facility with the gas pipeline would give rise to
environmental concerns, (2) the council would consider
the environmental impact of the gas pipeline in a future
proceeding, and (3) if the electric generating facility
was unable to operate as intended, NTE would have
posted a decommissioning bond and developed a
decommissioning plan to restore the site of the facility,
and the risk and cost of the failure to obtain approval
for the gas pipeline would be borne solely by NTE, not
by ratepayers.
We do not entirely agree with this analysis. Specifi-
cally, we do not agree with the trial court’s conclusion
that the plaintiff did not claim that combining the envi-
ronmental impact of the electric generating facility with
the impact of the gas pipeline would result in an
increased environmental impact. Although the plaintiff
made no claim that the combination would be syner-
gistic, that is, that the facility and the pipeline together
would produce an effect greater than the sum of their
separate effects, it very clearly claimed that the sum of
their effects would be greater than the effect of either
project considered alone and that the cumulative effect
should be weighed against the public benefit.
Nevertheless, we conclude that the trial court cor-
rectly determined that the council did not improperly
segment the project because the environmental impact
of the gas pipeline must be considered by the council
in a future proceeding and because NTE alone would
bear the cost and risk if the pipeline is not approved.
As we discuss more fully in part III of this opinion,
before it can grant a certificate to Eversource to install
the gas pipeline, the council must find either that the
pipeline will have no significant adverse environmental
effect or that its impact, considered together with the
impact of other existing facilities, is outweighed by the
public benefit that it will provide. If the gas pipeline
will have no significant impact, it follows that the cumu-
lative impact of the facilities will not be significantly
greater than the impact of the electric generating facility
alone. If the pipeline will have a significant adverse
environmental effect, because the impact of the electric
generating facility has already been determined, and
because that impact would clearly be relevant, nothing
would preclude the council from balancing the cumula-
tive impacts of the two facilities against the public bene-
fit that they would provide.12 See General Statutes § 16-
50p (a) (3) (B) (council must consider ‘‘[t]he nature of
the probable environmental impact of the facility alone
and cumulatively with other existing facilities’’).13 If the
council determines in that subsequent proceeding that
the cumulative environmental impact outweighs the
public benefit, the burden of decommissioning any por-
tion of the electric generating facility that has already
been built and restoring the site to its previous condition
would be borne entirely by NTE. We conclude, there-
fore, that the trial court correctly determined that the
council’s refusal to consider the potential environmen-
tal impact of the gas pipeline during the proceedings
on NTE’s application for a certificate was not arbitrary
and capricious.14
III
Finally, we address the plaintiff’s claim that the trial
court’s conclusion that the defendants did not improp-
erly segment the project was based on the incorrect
assumption that Eversource would be required to apply
for a certificate for the gas pipeline. NTE contends that
this claim was waived because the plaintiff raised no
claim in the trial court that Eversource could evade
review by the council of the gas pipeline. We agree with
NTE that the plaintiff failed to preserve for review any
claim that Eversource could evade review by the coun-
cil by seeking another agency’s review. With respect to
the plaintiff’s claim that the trial court failed to recog-
nize that Eversource could seek a declaratory ruling
from the council that the gas pipeline would have no
substantial environmental impact instead of applying
for a certificate, we conclude that any error was harm-
less.
We first address NTE’s claim that the plaintiff waived
this issue. The following additional procedural history
is relevant to our resolution of this claim. The trial court
and counsel for the plaintiff had the following exchange:
‘‘The Court: [I]t seems, at least, from what your com-
plaint says, that [the council is] going to consider what-
ever issues are associated with the pipeline when the
application comes to [it]. So it doesn’t seem like there’s
going to be anything missed. Explain to me why that’s
not right.’’
‘‘[The Plaintiff’s Counsel]: . . . I have every reason
to believe that [the council] will do a thorough job
evaluating what the environmental impacts are of the
pipeline, but what the . . . council actually does is a
balancing test. So [it does not] just look at environmen-
tal impacts. . . . [It’s] not the Department of Environ-
mental Protection. [The council is] not just concerned
about that. [It’s] also concerned about the benefit . . .
to state residents, and [it has] to kind of do a balancing
here. So . . . one of the problems with doing it in this
order is [that the council is] going to say . . . there
are going to be very significant environmental impacts
. . . . [B]ut on the other side, if [the council] allow[s]
this to go in, you have a very big benefit that there’s
going to be this operating national gas plant, and that’s
going to be great for the ratepayers . . . .
***
‘‘And so . . . that is . . . the essence of what [the
defendants are] trying to avoid by segmenting the proj-
ect . . . . [J]ust because we’re not appealing environ-
mental impacts does not mean there weren’t environ-
mental impacts from the power plant. . . . So there
were those impacts plus the impacts from the pipeline
that you’re going to balance on the other side with the
benefit to the state. And so, now, instead of having the
whole picture . . . you’re just looking at the pipeline
where it looks like the upside might be really high
. . . .’’
Thus, the plaintiff made no claim to the trial court
that Eversource could evade review by the council of
the gas pipeline. To the contrary, counsel for the plain-
tiff stated that she had ‘‘every reason to believe that
[the council] will do a thorough job evaluating what
the environmental impacts are of the pipeline . . . .’’
She was concerned only that the council would not be
evaluating the cumulative environmental impacts of
the electric generating facility and the pipeline. We con-
clude, therefore, that, to the extent that the plaintiff
claims on appeal that the trial court failed to recognize
that Eversource could evade review by the council by
seeking review of the pipeline by another state agency,
such as the Department of Energy and Environmental
Protection (department), or the Federal Energy Regula-
tory Commission (commission), any such claim was
not preserved for review. See, e.g., Crawford v. Com-
missioner of Correction, 294 Conn. 165, 203, 982 A.2d
620 (2009) (this court ‘‘will not review a claim unless
it was distinctly raised at trial’’); see also State v. Cruz,
269 Conn. 97, 105, 848 A.2d 445 (2004) (‘‘a party who
induces an error cannot be heard to later complain
about that error’’).
We further note that, even if the issue had been pre-
served for review, the plaintiff has not explained how
Eversource could evade review by the council by sub-
mitting a petition for a declaratory ruling to the depart-
ment when § 16-50k expressly provides that the issue
of whether the proposed facility will cause a substantial
adverse environmental effect must be ‘‘determined by
the council . . . .’’ (Emphasis added.) General Statutes
§ 16-50k (a). In addition, although the plaintiff points
out that the department submitted a document to the
council during the proceedings on NTE’s application
for a certificate in which it inquired whether the council
or the commission will have jurisdiction over the gas
pipeline, and although the council would not have juris-
diction over the facility if the commission had jurisdic-
tion over it; see General Statutes § 16-50k (d) (‘‘[t]his
chapter shall not apply to any matter over which any
agency . . . of the federal government has exclusive
jurisdiction, or has jurisdiction concurrent with that
of the state and has exercised such jurisdiction’’); the
plaintiff points to no evidence that would support a
conclusion that the commission might have jurisdiction
because the pipeline might cross state lines. To the
contrary, although the parameters of the pipeline were
not fully determined at the time of the proceedings on
NTE’s application, the council expressly found that the
new pipeline would be installed adjacent to the existing
pipeline, which does not cross state lines. The plaintiff
also has made no claim that proceedings before the
commission would be inadequate to protect the envi-
ronmental interests that the act was intended to protect.
With respect to the plaintiff’s claim that the trial court
failed to recognize that, as the defendants concede,
Eversource could seek a declaratory ruling from the
council instead of seeking a certificate, we conclude
that any error was harmless. Under § 16-50k (a), an
entity that intends to construct a facility subject to the
act is required to obtain a certificate only if the facility
‘‘may, as determined by the council, have a substantial
adverse environmental effect in the state . . . .’’ An
entity that believes that a facility will not have a substan-
tial adverse environmental effect may file a petition
for a declaratory ruling to that effect with the council
pursuant to General Statutes § 4-176 (a)15 and § 16-50j-39
(a) of the Regulations of Connecticut State Agencies.16
Pursuant to § 16-50j-40 (b) of the regulations,17 the coun-
cil is not required to conduct a hearing on the petition
but may do so if it deems a hearing necessary or helpful.
Pursuant to § 16-50j-40 (c)18 of the regulations, the coun-
cil may issue a decision within sixty days after receiving
the petition or it may decide not to issue a decision,
stating the reasons for its action.
The plaintiff in the present case contends that the
trial court’s assumption that Eversource would be
required to submit an application for a certificate was
harmful because applications for certificates and peti-
tions for declaratory rulings ‘‘require vastly different
levels of preparation and scrutiny.’’ Specifically, it con-
tends that, unlike an application for a certificate, a
petition for a declaratory ruling does not trigger a
requirement for a hearing, does not require the council
to render a decision and does not expressly require the
petitioner to submit specific detailed information about
the proposed project. Cf. General Statutes § 16-50l
(a) (1).19
We are not persuaded. We cannot conclude that the
statutory and regulatory provisions governing petitions
for a declaratory ruling from the council that a proposed
facility will have no substantial adverse environmental
effect for purposes of § 16-50k (a) are facially inade-
quate to ensure that the council will fully and fairly
consider the issue, and any claim that the council will
not do so in the present case is not yet ripe for review.20
See footnote 12 of this opinion. If Eversource seeks a
declaratory ruling and, after full and fair consideration
of the issue, the council determines that the facility
would have no substantial environmental effect, that
would obviate the need for the procedural requirements
applicable to an application for a certificate because
the very purpose of those requirements is to allow the
council to balance substantial harm to the environment
against the public benefit provided by a facility. Accord-
ingly, we conclude that any error by the trial court was
harmless because there is no reasonable likelihood that
the trial court would have reached a different conclu-
sion if it had recognized that Eversource could file a
petition for a declaratory ruling instead of an applica-
tion for a certificate. See Manning v. Michael, 188 Conn.
607, 611, 452 A.2d 1157 (1982) (‘‘[t]he burden of proving
harmful error rests on the party asserting it . . . and
the ultimate question is whether the erroneous action
would likely affect the result’’ (citation omitted)).
The judgment is affirmed.
In this opinion McDONALD, MULLINS and KAHN,
Js., concurred.
* September 28, 2021, 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-19 (a) (1) provides: ‘‘In any administrative, licens-
ing or other proceeding, and in any judicial review thereof made available
by law, the Attorney General, 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 intervene as a party on the filing of a verified pleading asserting
that the proceeding or action for judicial review involves conduct which has,
or which is reasonably likely to have, the effect of unreasonably polluting,
impairing or destroying the public trust in the air, water or other natural
resources of the state.’’
2
The plaintiff appealed to the Appellate Court, and we granted NTE’s
motion to transfer the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-2.
3
General Statutes § 16-50k (a) provides in relevant part: ‘‘Except as pro-
vided in subsection (b) of section 16-50z, no person shall . . . commence
the construction or supplying of a facility . . . that may, as determined by
the council, have a substantial adverse environmental effect in the state
without having first obtained a certificate of environmental compatibility
and public need, hereinafter referred to as a ‘certificate’, issued with respect
to such facility or modification by the council. . . .’’
4
The council initially denied NTE’s application without prejudice on
grounds unrelated to the plaintiff’s claims. Thereafter, NTE filed a motion
to open and modify the council’s decision. The council granted the motion
and recommenced the proceedings on NTE’s application for a certificate.
Consistent with the approach of the parties, we treat the proceedings on
NTE’s application before and after the council granted NTE’s motion to
open as a single, continuous proceeding.
5
The Connecticut Fund for the Environment also intervened in the pro-
ceedings on NTE’s application for a certificate pursuant to § 22a-19 (a) (1),
but it is not a participant in this appeal.
6
General Statutes § 16-50p provides in relevant part: ‘‘(a) (1) In a certifica-
tion proceeding, the council shall render a decision upon the record either
granting or denying the application as filed, or granting it upon such terms,
conditions, limitations or modifications of the construction or operation of
the facility as the council may deem appropriate.
‘‘(2) The council’s decision shall be rendered in accordance with the fol-
lowing:
‘‘(A) Not later than twelve months after the filing of an application for a
facility described in subdivision (1) or (2) of subsection (a) of section 16-50i
or subdivision (4) of said subsection (a) if the application was incorporated
in an application concerning a facility described in subdivision (1) of said
subsection (a); and
‘‘(B) Not later than one hundred eighty days after the filing of an applica-
tion for a facility described in subdivisions (3) to (6), inclusive, of subsection
(a) of section 16-50i, provided the council may extend such period by not
more than one hundred eighty days with the consent of the applicant.
‘‘(3) The council shall file, with its order, an opinion stating in full its
reasons for the decision. The council shall not grant a certificate, either as
proposed or as modified by the council, unless it shall find and determine:
‘‘(A) Except as provided in subsection (b) or (c) of this section, a public
need for the facility and the basis of the need;
‘‘(B) The nature of the probable environmental impact of the facility alone
and cumulatively with other existing facilities, including a specification of
every significant adverse effect, including, but not limited to, (i) electromag-
netic fields that, whether alone or cumulatively with other effects, impact
on, and conflict with the policies of the state concerning the natural environ-
ment, (ii) ecological balance, (iii) public health and safety, (iv) scenic,
historic and recreational values, (v) agriculture, (vi) forests and parks, (vii)
air and water purity, and (viii) fish, aquaculture and wildlife;
‘‘(C) Why the adverse effects or conflicts referred to in subparagraph (B)
of this subdivision are not sufficient reason to deny the application . . . .
***
‘‘(c) (1) The council shall not grant a certificate for a facility described
in subdivision (3) of subsection (a) of section 16-50i [i.e., any electric generat-
ing or storage facility], either as proposed or as modified by the council,
unless it finds and determines a public benefit for the facility and considers
neighborhood concerns with respect to the factors set forth in subdivision
(3) of subsection (a) of this section, including public safety.
***
‘‘(3) For purposes of this section, a public benefit exists when a facility
is necessary for the reliability of the electric power supply of the state or
for the development of a competitive market for electricity and a public
need exists when a facility is necessary for the reliability of the electric
power supply of the state. . . .’’
7
Eversource was formerly known as Yankee Gas Services Company, and
the names ‘‘Eversource’’ and ‘‘Yankee Gas’’ were used interchangeably dur-
ing the proceedings on NTE’s application for a certificate.
8
In this regard, we emphasize that we conclude only that, when determin-
ing whether the facility under review will have a public benefit, the council
is authorized to consider the facts that (1) the facility is interdependent
with another facility that does not yet exist, and (2) there is a significant
likelihood that the nonexistent facility ultimately may not be approved
because the harmful effects of that facility, considered together with the
harmful effects of the facility under review, could outweigh the public benefit
of the facilities considered as a whole.
9
The council’s attorney stated at oral argument before this court that the
council has no authority to defer making a decision on an application for
a certificate until proceedings on an interdependent project are completed.
The council did not dispose of the plaintiff’s motion for a stay and/or to
dismiss NTE’s application pending review of the gas pipeline on the ground
that it had no authority to issue a stay, however, but denied the motion on
its merits.
10
We recognize that, if an application for a facility is not approved because
the council has some doubt that the related second facility will be approved,
that same problem may arise in the proceedings on the application for a
certificate for the second facility, that is, the public benefit of the second
facility might be speculative because the first facility has not been approved.
Thus, it would appear that joint proceedings on interdependent facilities
would be the preferred procedure. Because it is not before us in this appeal,
we leave consideration of this procedural matter to the discretion of the
council in the first instance.
11
NTE contends that the plaintiff ‘‘offers this court no basis on which it
could unilaterally adopt [the federal case law disfavoring segmentation]
based on the language and construct of [the act].’’ NTE further contends
that the act bars the application ‘‘of this extratextual doctrine.’’ We recognize
that, unlike the act, federal law requires an agency conducting an environ-
mental review pursuant to NEPA to consider ‘‘both ‘connected actions’ and
‘similar actions.’ [40 C.F.R. § 1508.25 (a) (1) and (3) (2014)]. Actions are
‘connected’ if they trigger other actions, cannot proceed without previous
or simultaneous actions, or are ‘interdependent parts of a larger action and
depend on the larger action for their justification.’ [Id., § 1508.25 (a) (1)].
And actions are ‘similar’ if, ‘when viewed with other reasonably foreseeable
or proposed agency actions, [they] have similarities that provide a basis for
evaluating their environmental consequences together, such as common
timing or geography.’ [Id., § 1508.25 (a) (3)].’’ Delaware Riverkeeper Network
v. Federal Energy Regulatory Commission, supra, 753 F.3d 1309. We have
already concluded, however, that there is no language in the act that prohib-
its the council from considering any relevant information when balancing
the public benefit of a proposed project against the harm that it will cause
to the environment. Although the existence of connected or similar facilities
may not always be relevant to the council’s statutorily mandated balancing
process under the act, the fact that the facility under review will require
the future installation of an interdependent facility may well be relevant
because, if the future facility is not approved, the facility under review will
provide no public benefit.
12
As the trial court stated, we ‘‘must assume that the council and the
Department of Energy and Environmental Protection [department] will prop-
erly perform their statutory functions when considering any future upgraded
pipeline and will not be improperly pressured, as alleged by [the plaintiff],
because of the council’s prior issuance of the certificate for the [electric
generating] facility.’’ Any claim that the council and the department will be
improperly influenced by the fact that NTE’s application for a certificate
was granted, in the subsequent proceedings on the gas pipeline, whatever
form they may take, is not ripe for adjudication in this appeal.
13
Although the parties do not address the issue, it seems clear that the
term ‘‘existing facilities’’ was intended to include a facility for which a
certificate has been issued, regardless of whether the facility has been fully
constructed, if the existence of the facility would be relevant to the council’s
balancing procedure. Again, we can perceive no reason why the legislature
would have wanted the council to ignore relevant information in making
its determination.
14
The concurring and dissenting opinion concludes that, because ‘‘the
council reached a decision in this matter while laboring under the legally
mistaken understanding that it could not exercise its discretion to deny or
defer consideration of the pending application on the basis of the cumulative
environmental impact of the electric generating facility and the future gas
pipeline on which the operation of that facility will depend,’’ a remand is
necessary so that the council can properly exercise its discretion. We recog-
nize that, ordinarily, an agency’s failure to exercise its discretion because
of a mistaken understanding of the law constitutes an abuse of discretion.
Even if we were to assume, however, that the council believed that it was
statutorily prohibited from considering the facts that the pipeline is an
interdependent facility and that it has not yet been approved when weighing
the public benefit of the electric generating facility against its environmental
impact, we conclude that, under the specific circumstances of the present
case, a remand is not necessary. As the matter now stands, the environmental
impact of the electric generating facility must be considered during the
certificate proceedings for the pipeline, unless Eversource files and the
council grants a petition for a declaratory ruling that the pipeline will have
no substantial adverse environmental effect. See part III of this opinion. If
the pipeline ultimately is not approved and the electric generating plant
cannot operate, NTE has posted a decommissioning bond to restore the
site. If, as the concurring and dissenting opinion urges, the matter were
remanded to the council for further proceedings, the council could stay
the proceedings pending action on the pipeline, approve the certification
conditioned on approval of the pipeline or deny the certificate without
prejudice to reapplying if the pipeline is approved. In any case, the result
would be the functional equivalent of the situation as it now stands: the
cumulative environmental impact of the electric generating facility and the
pipeline would be considered during the proceedings on the pipeline unless
it were determined that the pipeline will have no substantial adverse environ-
mental effect and, if the pipeline were not approved, NTE would be unable
to complete the electric generating plant and the site would be restored.
15
General Statutes § 4-176 (a) provides: ‘‘Any person may petition an
agency, or an agency may on its own motion initiate a proceeding, for a
declaratory ruling as to the validity of any regulation, or the applicability
to specified circumstances of a provision of the general statutes, a regulation,
or a final decision on a matter within the jurisdiction of the agency.’’
16
Section 16-50j-39 (a) of the Regulations of Connecticut State Agencies
provides: ‘‘Any interested person may at any time request a declaratory
ruling of the Council with respect to the applicability to such person of any
statute, or the validity or applicability of any regulation, final decision, or
order enforced, administered, or promulgated by the Council. Such request
shall be addressed to the Council and sent to the principal office of the
Council by mail or delivered in person during normal business hours. The
request shall state clearly and concisely the substance and nature of the
request; it shall identify the statute, regulation, final decision, or order
concerning which the inquiry is made and shall identify the particular aspect
to which the inquiry is directed. The request for a declaratory ruling shall
be accompanied by a statement of any data, facts, and arguments that
support the position of the person making the inquiry. Where applicable,
Sections 16-50j-13 to 16-50j-17, inclusive, of the Regulations of Connecticut
State Agencies govern requests for participation in the proceeding.’’
17
Section 16-50j-40 (b) of the Regulations of Connecticut State Agencies
provides: ‘‘If the Council deems a hearing necessary or helpful in determining
any issue concerning the request for a declaratory ruling, the Council shall
schedule such hearing and give such notice thereof as shall be appropriate.
The contested case provisions of Sections 16-50j-13 to 16-50j-34, inclusive,
of the Regulations of Connecticut State Agencies shall govern the practice
and procedure of the Council in any hearing concerning a declaratory ruling.’’
18
Section 16-50j-40 (c) of the Regulations of Connecticut State Agencies
provides: ‘‘Within 60 days after receipt of a petition for a declaratory ruling,
the Council in writing shall: (1) issue a ruling declaring the validity of a
regulation or the applicability of the provision of the Connecticut General
Statutes, the regulation, or the final decision in question to the specified
proceedings; (2) order the matter set for specified proceedings; (3) agree
to issue a declaratory ruling by a specified date; (4) decide not to issue a
declaratory ruling and initiate regulation-making proceedings, under Section
4-168 of the Connecticut General Statutes, on the subject; or (5) decide not
to issue a declaratory ruling, stating the reasons for its action.’’
19
General Statutes § 16-50l (a) provides in relevant part: ‘‘To initiate a
certification proceeding, an applicant for a certificate shall file with the
council an application, in such form as the council may prescribe . . . .
An application shall contain such information as the applicant may consider
relevant and the council or any department or agency of the state exercising
environmental controls may by regulation require, including the following
information:
‘‘(1) In the case of facilities described in subdivisions (1), (2) and (4) of
subsection (a) of section 16-50i: (A) A description, including estimated costs,
of the proposed transmission line, substation or switchyard, covering, where
applicable underground cable sizes and specifications, overhead tower
design and appearance and heights, if any, conductor sizes, and initial and
ultimate voltages and capacities; (B) a statement and full explanation of
why the proposed transmission line, substation or switchyard is necessary
and how the facility conforms to a long-range plan for expansion of the
electric power grid serving the state and interconnected utility systems, that
will serve the public need for adequate, reliable and economic service; (C)
a map of suitable scale of the proposed routing or site, showing details of
the rights-of-way or site in the vicinity of settled areas, parks, recreational
areas and scenic areas, residential areas, private or public schools, child
care centers, as described in section 19a-77, group child care homes, as
described in section 19a-77, family child care homes, as described in section
19a-77, licensed youth camps, and public playgrounds and showing existing
transmission lines within one mile of the proposed route or site; (D) a
justification for adoption of the route or site selected, including comparison
with alternative routes or sites which are environmentally, technically and
economically practical; (E) a description of the effect of the proposed trans-
mission line, substation or switchyard on the environment, ecology, and
scenic, historic and recreational values; (F) a justification for overhead
portions, if any, including life-cycle cost studies comparing overhead alterna-
tives with underground alternatives, and effects described in subparagraph
(E) of this subdivision of undergrounding; (G) a schedule of dates showing
the proposed program of right-of-way or property acquisition, construction,
completion and operation; (H) an identification of each federal, state,
regional, district and municipal agency with which proposed route or site
reviews have been undertaken, including a copy of each written agency
position on such route or site; and (I) an assessment of the impact of
any electromagnetic fields to be produced by the proposed transmission
line . . . .’’
20
To the extent that the plaintiff contends that the fairness of the council’s
ruling on a petition for a declaratory ruling might never be subject to review
because it is possible that the plaintiff might not participate in the proceed-
ings on any such petition, we conclude that the fact that the plaintiff might
choose not to intervene in the proceedings does not render them inadequate.
If the plaintiff is not permitted to intervene in any such proceedings, or if
it intervenes and believes that the proceedings are unfair, it would be entitled
to appeal. See FairwindCT, Inc. v. Connecticut Siting Council, 313 Conn.
669, 676, 714, 99 A.3d 1038 (2014) (plaintiff intervened in proceedings on
petition for declaratory ruling pursuant to § 22a-19 (a) (1) and had standing
to claim on appeal that council’s procedures deprived it of common-law
right to fundamental fairness).