NANCY BURTON v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al., SC 18173

Judicial District of Hartford

 Environment; Nuclear Power; Statutory Aggrievement; Whether Plaintiff has Standing Under General Statutes § 22a-16; Whether General Statutes § 22a-20 Provides an Independent Cause of Action.  The plaintiff brought this action against the state department of environmental protection (DEP) and Dominion Nuclear Connecticut, Inc., the owner and operator of Millstone Nuclear Power Plant in Waterford.  She alleged that Millstone's "once-through" cooling system, which draws large volumes of seawater from Niantic Bay and discharges it into Long Island Sound, is damaging the environment.  She also alleged that Millstone's permit to operate the cooling system expired in 1997, that Millstone has since operated pursuant to illegal "emergency authorizations," and that an ongoing DEP permit proceeding concerning the power plant has been corrupted by conflicts of interest and collusion.  The plaintiff sought, among other things, an order that Millstone be converted to a closed cooling system prior to 2010 and a determination that the DEP's administrative and regulatory procedures are inadequate to protect the public trust in the environment.  The plaintiff asked that the pending permit proceeding be stayed and that the court assume authority over the permit process.  The trial court granted the defendants' motions to dismiss the action, finding that the plaintiff lacked standing to sue because she was not statutorily aggrieved under the Connecticut Environmental Protection Act (CEPA).  The court first determined that the plaintiff lacked standing under § 22a-16 of CEPA, which permits any person to bring an action seeking the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.  The court noted that the plaintiff's single count complaint was premised on issues surrounding Millstone's permit and that Connecticut Supreme Court precedent has firmly established that § 22a-16 does not confer standing to challenge the DEP's permitting procedure or the validity of an existing permit or authorization.  The court also rejected the plaintiff's claim that General Statutes § 22a-20 afforded her standing to sue, noting that, in contrast to § 22a-16, that statute does not expressly provide a right to bring an action.  The plaintiff appeals.  She claims that the trial court mischaracterized her complaint as being premised solely on permitting issues and that she has standing under § 22a-16 because she raises allegations of direct harm to the environment.  The plaintiff also contends that § 22a-20 both expressly and impliedly confers standing to bring an action in Superior Court seeking, among other things, a determination that existing administrative and regulatory procedures do not adequately protect the state's environment.