Not Another Power Plant v. Connecticut Siting Council

[Page 1] Page 2 CONNECTICUT LAW JOURNAL January 18, 2022 762 JANUARY, 2022 340 Conn. 762 Not Another Power Plant v. Connecticut Siting Council 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 environmental 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 environment. 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 environmental impact of the upgraded pipeline when weighing the public benefit of the facility against the harm that it would cause to the environment 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- [Page 2] January 18, 2022 CONNECTICUT LAW JOURNAL Page 3 340 Conn. 762 JANUARY, 2022 763 Not Another Power Plant v. Connecticut Siting Council cation for a certificate, without ever considering the potential environmental 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 cumulatively, 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 concluded 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 plaintiff’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 destruction 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 destruction. 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 [Page 3] Page 4 CONNECTICUT LAW JOURNAL January 18, 2022 764 JANUARY, 2022 340 Conn. 762 Not Another Power Plant v. Connecticut Siting Council 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 considering 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 interdependent 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 application 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 [Page 4] January 18, 2022 CONNECTICUT LAW JOURNAL Page 5 340 Conn. 762 JANUARY, 2022 765 Not Another Power Plant v. Connecticut Siting Council 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, accordingly, 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 generating facility, brought to the Superior Court in the judicial 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- * September 28, 2021, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. [Page 5] Page 6 CONNECTICUT LAW JOURNAL January 18, 2022 766 JANUARY, 2022 340 Conn. 762 Not Another Power Plant v. Connecticut Siting Council 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 environmental impact of installing a gas pipeline to a proposed electric generating facility when weighing the public benefit of the facility against its probable environmental impact pursuant to the Public Utility 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 certificate of environmental compatibility and public need for the construction of an electric generating facility (facility) in the town of Killingly (town) pursuant to the act. Thereafter, the plaintiff, Not Another Power Plant, a nonprofit association formed to promote environmental conservation in the town, intervened in the proceeding pursuant to General Statutes § 22a-19 (a) (1).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 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.’’ [Page 6] January 18, 2022 CONNECTICUT LAW JOURNAL Page 7 340 Conn. 762 JANUARY, 2022 767 Not Another Power Plant v. Connecticut Siting Council that, when weighing the public benefit of the facility against the harm that it would cause to the environment, the council improperly had failed to consider the environmental impact of a gas pipeline that would have to be installed in the future to provide fuel to the facility. The trial court concluded that the council was not required to consider the impact of the gas pipeline and rendered judgment dismissing the plaintiff’s administrative appeal. On appeal to this court,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 (certificate) 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 supplied through an upgraded gas pipeline to be con- structed and owned by Eversource Energy Service 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 provided 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. . . .’’ [Page 7] Page 8 CONNECTICUT LAW JOURNAL January 18, 2022 768 JANUARY, 2022 340 Conn. 762 Not Another Power Plant v. Connecticut Siting Council 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 available.’’4 The plaintiff successfully sought permission to intervene 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 public trust in the environment.5 Thereafter, the plaintiff filed a motion for a stay and/or to dismiss the application, 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 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 proceedings 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 following: ‘‘(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 [Page 8] January 18, 2022 CONNECTICUT LAW JOURNAL Page 9 340 Conn. 762 JANUARY, 2022 769 Not Another Power Plant v. Connecticut Siting Council 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- 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 application 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 environment, (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 generating 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. . . .’’ [Page 9] Page 10 CONNECTICUT LAW JOURNAL January 18, 2022 770 JANUARY, 2022 340 Conn. 762 Not Another Power Plant v. Connecticut Siting Council 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 application 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 proceedings.’’ 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