Opinion
SC 19620
12-29-2016
CONNECTICUT ENERGY MARKETERS ASSOCIATION v. DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION et al.
Alphonse M. Alfano, pro hac vice, with whom were Calvin K. Woo, Westport and, on the brief, Karen A. Mignone, Westport, for the appellant (plaintiff). Robert D. Snook, Hartford and Robert L. Marconi, assistant attorneys general, Hartford, with whom, on the brief, were George Jepsen, attorney general, Hartford, and Clare E. Kindall, assistant attorney general, Hartford, for the appellees (defendants).
Alphonse M. Alfano, pro hac vice, with whom were Calvin K. Woo, Westport and, on the brief, Karen A. Mignone, Westport, for the appellant (plaintiff).
Robert D. Snook, Hartford and Robert L. Marconi, assistant attorneys general, Hartford, with whom, on the brief, were George Jepsen, attorney general, Hartford, and Clare E. Kindall, assistant attorney general, Hartford, for the appellees (defendants).
Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
ROBINSON, J. The issue that we must address in this appeal is whether the issuance of a comprehensive energy strategy by the defendant Department of Energy and Environmental Protection (department), pursuant to a legislative directive, and the subsequent approval of a plan to expand the use of natural gas in this state by the department and the defendant Public Utilities Regulatory Authority (authority) constituted " ‘actions which may significantly affect the environment’ " within the meaning of General Statutes § 22a–1c, thereby triggering the requirement for written evaluation of the expansion plan's environmental impact pursuant to General Statutes § 22a–1b (c). The plaintiff, Connecticut Energy Marketers Association, brought this action against the defendants claiming that they violated the Environmental Policy Act (act), General Statutes § 22a–1 et seq., when the department issued a comprehensive energy strategy that contemplated a significant expansion of the use of natural gas in this state, and when both defendants approved a plan for such expansion, without evaluating the environmental impact of, among other things, an increase in the use of natural gas pursuant to § 22a–1b (c). The defendants filed separate motions to dismiss the plaintiff's complaint claiming that only "individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's" environmental resources; General Statutes § 22a–1c ; constitute "actions which may significantly affect the environment" for purposes of § 22a–1b (c). Because they did not undertake any such activities, the defendants claimed, no environmental impact evaluation was required. The trial court agreed with the defendants and rendered judgment dismissing the complaint. The plaintiff claims on appeal to this court that the trial court improperly determined that the defendants' activities did not constitute "actions which may significantly affect the environment" for purposes of § 22a–1b (c). We disagree with the plaintiff, and affirm the judgment of the trial court.
General Statutes § 22a–1c provides: "As used in sections 22a–1 to 22a–1i, inclusive, ‘actions which may significantly affect the environment’ means individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's land, water, air, historic structures and landmarks as defined in section 10–410, existing housing, or other environmental resources, or could serve short term to the disadvantage of long term environmental goals. Such actions shall include but not be limited to new projects and programs of state agencies and new projects supported by state contracts and grants, but shall not include (1) emergency measures undertaken in response to an immediate threat to public health or safety; or (2) activities in which state agency participation is ministerial in nature, involving no exercise of discretion on the part of the state department, institution or agency."
General Statutes § 22a–1b (c) provides in relevant part: "Each state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment shall in the case of each such proposed action make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action ...."
Although § 22a–1b (c) was the subject of a technical amendment in 2014; see Public Acts 2014, No. 14–122, § 130; that amendment has no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.
The plaintiff appealed from the judgment of dismissal to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51–199 (c) and Practice Book § 65–1.
The record reveals the following facts, which are undisputed or were found by the trial court, and procedural history. In 2011, the legislature enacted General Statutes § 16a–3d, which directs the Commissioner of Energy and Environmental Protection to prepare a comprehensive energy strategy for the state every three years. See Public Acts 2011, No. 11–80, § 51. Pursuant to this directive, the department issued a document entitled "2013 Comprehensive Energy Strategy for Connecticut" (comprehensive energy strategy) on February 19, 2013. As part of the comprehensive energy strategy, the department recommended a significant expansion of the use of natural gas in the state. This proposal would require the expansion of natural gas pipeline capacity into the state, regulatory changes to enable certain customers to have their connections financed by the state's gas companies, the construction of approximately 900 miles of gas mains to provide access to consumers, and incentives for the state's gas companies to "ramp–up the required construction quickly ...."
General Statutes § 16a–3d provides: "(a) On or before October 1, 2016, and every three years thereafter, the Commissioner of Energy and Environmental Protection shall prepare a Comprehensive Energy Strategy. Said strategy shall reflect the legislative findings and policy stated in section 16a–35k and shall incorporate (1) an assessment and plan for all energy needs in the state, including, but not limited to, electricity, heating, cooling, and transportation, (2) the findings of the Integrated Resources Plan, (3) the findings of the plan for energy efficiency adopted pursuant to section 16–245m, (4) the findings of the plan for renewable energy adopted pursuant to section 16–245n, and (5) the Energy Assurance Plan developed for the state of Connecticut pursuant to the American Recovery and Reinvestment Act of 2009, P.L. 111–5, or any successor Energy Assurance Plan developed within a reasonable time prior to the preparation of any Comprehensive Energy Strategy. Said strategy shall further include, but not be limited to, (A) an assessment of current energy supplies, demand and costs, (B) identification and evaluation of the factors likely to affect future energy supplies, demand and costs, (C) a statement of progress made toward achieving the goals and milestones set in the preceding Comprehensive Energy Strategy, (D) a statement of energy policies and long-range energy planning objectives and strategies appropriate to achieve, among other things, a sound economy, the least-cost mix of energy supply sources and measures that reduce demand for energy, giving due regard to such factors as consumer price impacts, security and diversity of fuel supplies and energy generating methods, protection of public health and safety, environmental goals and standards, conservation of energy and energy resources and the ability of the state to compete economically, (E) recommendations for administrative and legislative actions to implement such policies, objectives and strategies, (F) an assessment of the potential costs savings and benefits to ratepayers, including, but not limited to, carbon dioxide emissions reductions or voluntary joint ventures to repower some or all of the state's coal-fired and oil-fired generation facilities built before 1990, and (G) the benefits, costs, obstacles and solutions related to the expansion and use and availability of natural gas in Connecticut. If the department finds that such expansion is in the public interest, it shall develop a plan to increase the use and availability of natural gas.
"(b) In adopting the Comprehensive Energy Strategy, the Commissioner of Energy and Environmental Protection shall conduct a proceeding that shall not be considered a contested case under chapter 54, but shall include not less than one public meeting and one technical meeting at which technical personnel shall be available to answer questions. Such meetings shall be transcribed and posted on the department's Internet web site. Said commissioner shall give not less than fifteen days' notice of such proceeding by electronic publication on the department's Internet web site. Not later than fifteen days prior to any such public meeting and not less than thirty days prior to any such technical meeting, the commissioner shall publish notice of either such meeting and post the text of the proposed Comprehensive Energy Strategy on the department's Internet web site. Notice of such public meeting or technical meeting may also be published in one or more newspapers having state-wide circulation if deemed necessary by the commissioner. Such notice shall state the date, time, and place of the meeting, the subject matter of the meeting, the manner and time period during which comments may be submitted to said commissioner, the statutory authority for the proposed strategy and the location where a copy of the proposed strategy may be obtained or examined in addition to posting the proposed strategy on the department's Internet web site. Said commissioner shall provide a time period of not less than sixty days from the date the notice is published on the department's Internet web site for public review and comment. During such time period, any person may provide comments concerning the proposed strategy to said commissioner. Said commissioner shall consider fully all written and oral comments concerning the proposed strategy after all public meetings and technical meetings and before approving the final strategy. Said commissioner shall (1) notify by electronic mail each person who requests such notice, and (2) post on the department's Internet web site the electronic text of the final strategy and a report summarizing all public comments and the changes made to the final strategy in response to such comments and the reasons therefor. The Public Utilities Regulatory Authority shall comment on the strategy's impact on natural gas and electric rates.
"(c) The Commissioner of Energy and Environmental Protection shall submit the final Comprehensive Energy Strategy electronically to the joint standing committees of the General Assembly having cognizance of matters relating to energy and the environment.
"(d) The Commissioner of Energy and Environmental Protection may modify the Comprehensive Energy Strategy in accordance with the procedures outlined in subsections (b) and (c) of this section."
We note that § 16a–3d has since been amended by No. 13–298, § 23, of the 2013 Public Acts.
The parties refer to the Commissioner of Energy and Environmental Protection, the department's internal Bureau of Energy and Technology Policy and the department itself interchangeably. Because the department is the named defendant, for the purpose of consistency, we refer to each of these entities as the department.
The department also recommended that the state's gas companies submit a detailed conversion plan to the department and the authority. The department would then review the plan for consistency with the goals of the comprehensive energy strategy and the authority would assess the plan's potential impact on ratepayers. In June, 2013, the legislature enacted General Statutes § 16–19ww, adopting the department's recommendations. See Public Acts 2013, No. 13–298, § 51.
We note that § 16–19ww has since been amended by No. 14–94, § 51, of the 2014 Public Acts.
Thereafter, Southern Connecticut Gas Company, Connecticut Natural Gas Corporation, and Yankee Gas Services Company (local distribution companies) submitted to the defendants a Joint Natural Gas Infrastructure Expansion Plan (expansion plan). The department found the expansion plan "to be generally consistent with the [comprehensive energy strategy] goals," but recommended several modifications. The local distribution companies made the recommended modifications and resubmitted the modified expansion plan to the defendants, at which time the authority commenced a contested case to investigate the plan's impact on ratepayers pursuant to § 16–19ww (c). During the course of that proceeding, two parties submitted letters to the authority contending that the authority was required to prepare an environmental impact evaluation pursuant to § 22a–1b (c). In response, the authority issued a notice of request for written comments on that issue. The department submitted a letter to the authority contending that an environmental impact evaluation was not required because the authority was not the sponsoring agency for the proposed expansion of the natural gas distribution system, it was not funding the proposed expansion, it was not performing the proposed expansion and it would have no ownership interest in the proposed facilities. The authority issued a final decision approving the expansion plan without requiring an environmental impact evaluation.
General Statutes § 16–19ww (c) provides: "In the event that the commissioner determines that the plan is consistent with the Comprehensive Energy Strategy pursuant to subsection (b) of this section, the Public Utilities Regulatory Authority shall, in a contested proceeding during which the authority shall hold a public hearing, approve or modify the plan not later than one hundred twenty days after such plan is submitted to the authority."
The plaintiff, a trade association of more than 500 energy marketers who sell gasoline and heating fuel to residential and commercial customers throughout the state, then brought this action pursuant to General Statutes § 22a–16 in 2014 claiming that the expansion plan would increase the amount of natural gas escaping into the atmosphere, thereby exacerbating global warming, and that it would also have other negative impacts on the state's environmental resources. The plaintiff sought a declaratory judgment that the defendants had violated the act by failing to conduct an assessment of environmental significance or to prepare an environmental impact evaluation pursuant to § 22a–1b (c). The plaintiff also sought an injunction requiring the defendants to perform those acts.
General Statutes § 22a–16 provides in relevant part: "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 maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction ...."
According to the plaintiff, natural gas is composed primarily of methane, which "is more than [twenty] times as effective as carbon dioxide at trapping heat in the atmosphere ...."
The department filed a motion to dismiss or to strike the plaintiff's complaint claiming, among other things, that the department had not undertaken any " ‘actions which may significantly affect the environment,’ " as that term is defined in § 22a–1c, that would require the preparation of an environmental impact evaluation pursuant to § 22a–1b (c). The authority filed a separate motion to dismiss raising the same claim. The trial court concluded that, because the defendants were merely acting pursuant to the legislative directives contained in §§ 16a–3d and 16–19ww, their conduct did not come within the definition set forth in § 22a–1c and they were not required to prepare an environmental impact evaluation. Accordingly, the trial court concluded that the plaintiff had failed to state a claim pursuant to the act and rendered judgment dismissing the complaint on the ground that it lacked subject matter jurisdiction under the doctrine of sovereign immunity. This appeal followed.
The trial court relied on this court's decision in Stotler v. Dept. of Transportation, 313 Conn. 158, 185, 96 A.3d 527 (2014), for the proposition that, if a plaintiff fails to state a claim pursuant to a statute waiving sovereign immunity, the plaintiff's complaint is subject to dismissal, rather than to being stricken. See id. ("[W]e conclude that the Appellate Court properly determined that the plaintiff's complaint fails to state a claim under [General Statutes] § 13a–144. Therefore, the plaintiff's claim is barred by the doctrine of sovereign immunity and should have been dismissed by the trial court."). Ordinarily, a motion to strike is the proper procedural vehicle for challenging the legal sufficiency of a complaint. See In re Michael D., 58 Conn.App. 119, 122, 752 A.2d 1135 ("[t]he purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted" [internal quotation marks omitted] ), cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). Although the plaintiff contends that the motions to dismiss filed by the defendants should have been treated as motions to strike, it does not claim that the trial court's interpretation of Stotler was incorrect and, therefore, even if the trial court properly determined that the defendants were not subject to the requirements of § 22a–1c, the judgment should still be reversed because the complaint was improperly dismissed instead of stricken. Cf. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003) (when trial court improperly granted motion to dismiss claim that was properly subject to motion to strike, error was harmless when plaintiff did not claim that it could amend complaint to state legally sufficient claim).
We have serious questions as to whether § 22a–16 confers standing on the plaintiff to challenge the failure of the state to prepare an environmental impact evaluation pursuant to § 22a–1b, as the plaintiff alleges in its complaint. Whether the failure to prepare a report constitutes a claim of "unreasonable pollution" is, at best debatable. See id., 805 (to have standing to bring action pursuant to § 22a–16, plaintiff is required "to make a colorable claim of unreasonable pollution"). Nevertheless, because the parties have not raised nor briefed this question, we resolve today's issue on an alternative jurisdictional basis that was raised and briefed. See Stotler v. Dept. of Transportation, supra, 313 Conn. at 158, 96 A.3d 527.
The plaintiff contends that the trial court incorrectly concluded that the department's preparation of the comprehensive energy strategy and the approval of the expansion plan by both the department and the authority were not " ‘actions which may significantly affect the environment’ "; General Statutes § 22a–1c ; requiring an environmental impact evaluation pursuant to § 22a–1b. We disagree.
The question of whether the trial court properly dismissed the plaintiff's complaint turns on the proper interpretation of the phrase " ‘actions which may significantly affect the environment’ " as used in § 22a–1c, which is an issue of statutory interpretation that presents a question of law. Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc. , 310 Conn. 797, 808–809, 82 A.3d 602 (2014). "[A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.... We have determined, therefore, that the traditional deference accorded to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency's time-tested interpretation ...." (Citations omitted; internal quotation marks omitted.) Longley v. State Employees Retirement Commission , 284 Conn. 149, 163, 931 A.2d 890 (2007). Conversely, "courts should accord deference to an agency's formally articulated interpretation of a statute when that interpretation is both time-tested and reasonable." Id.
In the present case, the defendants make no claim that their interpretation of § 22a–1c as excluding the department's preparation of the comprehensive energy strategy and the defendants' approval of the local distribution companies' expansion plan is time-tested, and this interpretation has not previously been subject to judicial scrutiny. Accordingly, our review is plenary.
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, 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." (Internal quotation marks omitted.) Fairchild Heights Residents Assn., Inc. v. Fairchild Heights, Inc. , supra, 310 Conn. at 809, 82 A.3d 602.
We begin our analysis with the language of the relevant statutes. Section 22a–1b (c) provides in relevant part that "[e]ach state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment shall in the case of each such proposed action make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action ...." Section 22a–1c provides in relevant part that, "[a]s used in sections 22a–1 to 22a–1i, inclusive, ‘actions which may significantly affect the environment’ means individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's land, water, air, historic structures and landmarks as defined in section 10–410, existing housing, or other environmental resources, or could serve short term to the disadvantage of long term environmental goals...."
Thus, § 22a–1c provides that, to constitute " ‘actions which may significantly affect the environment’ " for purposes of § 22a–1b (c), activities must both (1) be "proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state," and (2) potentially "have a major impact on the state's" environmental resources. The most natural reading of the phrase "proposed to be undertaken by an agency or agencies" is that the proposed or initiated activity that will allegedly have a major impact on the state's environment ultimately must "be undertaken by an agency or agencies. " (Emphasis added.) See Royce v. Heneage , 170 Conn. 387, 392, 365 A.2d 1109 (1976) ("[t]he words of a statute should be interpreted in their natural and usual meaning"). Thus, activities that are proposed by state actors, but which are ultimately performed by private entities, do not constitute "actions which may significantly affect the environment" for purposes of § 22a–1b (c). This interpretation is supported by the legislative genealogy of the act. When the legislature originally enacted the act in 1973, the legislation provided that "[a]ctions which may significantly affect the environment shall include those projects directly undertaken by state departments, institutions or agencies , or funded in whole or in part by the state ...." (Emphasis added.) Public Acts 1973, No. 73–562, § 3 (P.A. 73–562). The legislative history of P.A. 73– 562 indicates that the purpose of the legislation was to "[put] our state government and [its] agencies on the same footing in responsibility as our public and private industries." 16 H.R. Proc., Pt. 14, 1973 Sess., p. 7182, remarks of Representative Harold G. Harlow. Thus, the legislature believed that, when the proposed activities are to be undertaken by private entities, there would be no reason to apply the act to the activities because private entities are already held responsible for the environmental impact of their activities under other laws.
Similarly, the plaintiff also contends that, under the language of § 22a–1b (c), any action that is initiated or proposed by a state agency and that may have a major impact on the state's environmental resources is an "[action] which may significantly affect the environment." See General Statutes § 22a–1b (c) (referring to "initiation of actions" and "proposed action"). The plaintiff contends that, because the defendants initiated or proposed the expansion plan under the ordinary meaning of those words, the defendants were required to conduct an environmental impact study pursuant to that statute. This argument is unavailing. Regardless of the meaning of the words "initiation" and "proposed," § 22a–1b (c) applies only to initiated or proposed activities that are to be "undertaken by state departments, institutions or agencies, or funded in whole or in part by the state ...." General Statutes § 22a–1c.
The dissenting justice contends that this interpretation renders the language "proposed to be undertaken by state departments, institutions or agencies" in § 22a–1c superfluous because all actions taken by a state actor are funded by the state. We disagree. We do not believe that it was simply redundant for the legislature to make it clear that an environmental impact assessment is required either when a state actor undertakes the activity or when a private actor undertakes the activity, but the activity is funded by the state. In any event, it is far from clear that the state funds all activities by state actors, in whole or in part. We note, for example, that the federal government frequently funds state programs and projects, and, without having performed a comprehensive review of those activities, we are not prepared to say that the state contributes funding to all of them.
Representative Harlow further stated that "[w]hat this bill does is [to direct] to the fullest extent possible [that] each state department, institution and agency be responsible for providing an environmental impact statement in terms of any activity on behalf of the state of Connecticut. This bill brings to complete circle the need for private industry, the public and state government to provide impact statements in terms of significant activity with regard to our environment." 16 H.R. Proc., supra, p. 7182.
See Conn. Joint Standing Committee Hearings, Environment, Pt. 2, 1973 Sess., p. 480 (testimony from legislative assistant acknowledging that private entities are subject to wide array of environmental laws and zoning regulations, but arguing that, because those laws are not adequate to protect environment, provisions of act should be expanded to apply to private developers); compare Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265, 292, 105 A.3d 857 (2015) (assuming that entity that is found to be "arm of the state" would be "entitled to share the state's sovereign immunity" to actions to enforce zoning regulations).
In 1977, the legislature amended the act by replacing the phrase "shall include those projects directly" with the phrase "are defined for the purposes of section 22a–1b as individual activities or a sequence of planned activities proposed to be ...." Public Acts 1977, No. 77–514, § 3 (P.A. 77–514). It is reasonable to conclude that the purpose of this amendment was to clarify that, if a state actor is considering whether it should undertake activities that could have a major impact on the state's environmental resources, the state actor should prepare an environmental impact evaluation before actually undertaking the activities. Indeed, at the same time that the legislature amended this portion of the act, it amended the portion now codified as § 22a–1b (c) to provide that state actors must prepare an environmental impact evaluation "before deciding whether to undertake or approve" activities that may significantly affect the environment. (Emphasis added.) P.A. 77–514, § 2 (b). Nothing in the legislative history of P.A. 77–514 suggests that the legislature's intent was to substantially change the primary purpose of the 1973 legislation by making it applicable to proposed activities that are to be undertaken by private actors. Cf. Doe v. Doe , 244 Conn. 403, 434, 710 A.2d 1297 (1998) ( "[w]e ordinarily do not infer a legislative intent to change [long-standing] and fundamental legislative policies without a clear indication of such an intent").
We note that, during the legislative debate on P.A. 73–562, concerns about the timing of the agency's preparation of an environmental impact evaluation were raised. See Conn. Joint Standing Committee Hearings, Environment, Pt. 2, 1973 Sess., p. 475, remarks of Rita Boulby on behalf of the Commissioner of Environmental Protection (representing department's belief that "the real intent and the goal of the policy act is to ... encourage and require agencies and institutions to develop within their planning process at a very early stage, environmental considerations").
In the present case, the defendants have not proposed to undertake or to fund the activities that the plaintiff alleges will have a major impact on the state's environmental resources, namely, the construction of new gas pipelines in the state resulting in the increased discharge of methane gas into the atmosphere. Rather, these activities will be undertaken and funded by the local distribution companies, which are private entities. Accordingly, we conclude that the trial court properly granted the defendants' motions to dismiss on the ground that the requirement of an environmental impact evaluation in § 22a–1b (c) does not apply to their activities in the present case. In support of its claim to the contrary, the plaintiff relies on § 22a–1a–1 (2) of the Regulations of Connecticut State Agencies, which defines an "action," as that word is used in General Statutes § 22a–1b (c), as an "individual activity or a sequence of planned activities initiated or proposed to be undertaken by an agency or agencies, or funded in whole or in part by the state." (Emphasis added.) Regs., Conn. State Agencies § 22a–1a–1 (2). The plaintiff contends that, under this regulation, an agency engages in an "action" when it initiates or proposes an activity that will be undertaken by any entity. Thus, the plaintiff contends that § 22a–1a–1 (2) of the regulations, and, by extension, General Statutes § 22a–1c, should be interpreted to apply to an individual activity or a sequence of planned activities to be undertaken by any person or entity that is initiated or proposed by an agency. Because the department proposed the expansion of the use of natural gas in the state when it prepared the comprehensive energy strategy, the plaintiff argues, the local distribution companies' expansion plan was subject to the requirements of General Statutes § 22a–1b (c). We disagree. The plaintiff's interpretation would both require the insertion of words such as "to be undertaken by any person or entity" into § 22a–1a–1 (2) of the regulations and General Statutes § 22a–1c and render the existing phrase "to be undertaken" superfluous. See Giaimo v. New Haven , 257 Conn. 481, 494, 778 A.2d 33 (2001) ("we may not read into clearly expressed legislation provisions which do not find expression in its words" [internal quotation marks omitted] ); Hopkins v. Pac , 180 Conn. 474, 476, 429 A.2d 952 (1980) ("[it is] well established ... that statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant").
Specifically, the plaintiff states in its reply brief to this court that "[t]he words ‘by an agency or agencies' [as used in § 22a–1a–1 (2) of the regulations ] is a prepositional phrase which modifies both ‘initiated’ and ‘proposed to be undertaken.’ An agency engages in an ‘action,’ therefore, when it proposes that an activity or activities be undertaken."
The plaintiff also relies on the language of § 22a–1a–1 (2) of the regulations providing that an "action" for purposes of General Statutes § 22a–1b (c) includes any "activity for which an agency exercises judgment or discretion as to the propriety of that action." Regs., Conn. State Agencies § 22a–1a–1 (2). Because the department exercised judgment in preparing the comprehensive energy strategy, and because both defendants exercised judgment in approving the expansion plan, the plaintiff contends, those activities were " ‘action[s]’ " subject to § 22a–1b (c). Again, we disagree. This portion of the regulation was intended to implement the portion of § 22a–1c providing that § 22a–1b (c) does not apply to "activities in which state agency participation is ministerial in nature, involving no exercise of discretion on the part of the state department, institution or agency." General Statutes § 22a–1c. That language provides an exemption to the portion of § 22a–1c providing that "[s]uch actions shall include but not be limited to new projects and programs of state agencies and new projects supported by state contracts and grants ...." In turn, "[s]uch actions," as used in this portion of § 22a–1c, refers back to "activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state ...." Thus, § 22a–1a–1 (2) of the regulations applies only to activities that will be undertaken or funded by a state actor. Because the activities that the plaintiff alleges will cause major pollution will be undertaken by private parties, the defendants' activities in proposing and approving those activities do not fall within this definition regardless of whether they are discretionary or ministerial.
Specifically, the plaintiff contends that an "agency's approval of an activity or sequence of proposed activities constitutes an ‘action’ under the regulations if the activity may significantly affect the environment."
The plaintiff contends that, to the contrary, this portion of § 22a–1a–1 (2) of the regulations derives from the portion of § 22a–1b (c) requiring "[e]ach state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment ... in the case of each such proposed action [to] make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action." We disagree. The language of the regulation clearly tracks the language of § 22a–1c. In any event, even if the plaintiff were correct, the word "actions" and the phrase "such action" as used in this portion of § 22a–1b (c) refer to "activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state"; General Statutes § 22a–1c ; and we have concluded that this language refers to activities that ultimately will be undertaken by a state actor. This interpretation does not render the phrase "or approve" as used in § 22a–1b (c) superfluous, because that portion of the statute contemplates the situation in which a state actor conducts proceedings to determine whether it is authorized to and, if so, whether it should undertake certain activities before actually undertaking the activities.
To the extent that the plaintiff contends that § 22a–1a–1 (2) of the regulations broadens the definition of " ‘actions which may significantly affect the environment’ " set forth in General Statutes § 22a–1c, we disagree. For the reasons that we have already explained, we do not believe that the language of the regulation is broader than the statute. Indeed, all of the specific examples of "actions" subject to § 22a–1b (c) set forth in § 22a–1a–1 (2) of the regulations involve actions to be undertaken or funded by state actors.
Section 22a–1a–1 (2) of the Regulations of Connecticut State Agencies provides in relevant part: "Actions include, but are not limited to, capital improvements, alterations, repairs, or additions to the real property of the state; acquisition of real property for the purpose of capital improvements; [and] lease/purchase agreements; grants-in-aid or financial assistance for housing, business, industry, restoration or demonstration projects ...."
Citing this court's decision in Manchester Environmental Coalition v. Stockton , 184 Conn. 51, 63, 441 A.2d 68 (1981), overruled in part on other grounds by Waterbury v. Washington , 260 Conn. 506, 556, 800 A.2d 1102 (2002), the plaintiff also contends that we should construe §§ 22a–1b (c) and 22a–1c consistently with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq. See Manchester Environmental Coalition v. Stockton , supra, at 63, 441 A.2d 68 (Connecticut's act was modeled on NEPA); id., at 67, 441 A.2d 68n.20 (relying on NEPA to determine standard of review of agency's determination that no environmental impact statement is required). The plaintiff points out that "there is ‘[f]ederal action’ within the meaning of [NEPA] not only when an agency proposes to build a facility itself, but also whenever an agency makes a decision which permits action by other parties which will affect the quality of the environment. NEPA's impact statement procedure has been held to apply where a federal agency approves a lease of land to private parties, grants licenses and permits to private parties, or approves and funds state highway projects." (Footnotes omitted.) Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission , 481 F.2d 1079, 1088 (D.C. Cir. 1973). Even if we were to assume, however, that the act was generally modeled on NEPA; see footnote 21 of this opinion; there are significant differences between the two statutes. Of particular relevance here, NEPA does not define "[f]ederal actions," as that term is used in 42 U.S.C § 4332 (2)(C), as "activities proposed to be undertaken by" federal actors. Compare General Statutes § 22a–1c. Rather, the implementing regulations for NEPA define "[f]ederal actions" broadly to "include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals ." (Emphasis added.) 40 C.F.R. § 1508.18. We conclude, therefore, that the scope of the "[f]ederal actions" that are subject to NEPA is broader than the scope of activities by state actors that are subject to the act. If the legislature had intended for the term "actions which may significantly affect the environment" to have the same meaning under the act as the term "[f]ederal actions" has under NEPA, it easily could have expressly provided so in § 22a–1c.
In Manchester Environmental Coalition, this court relied on the remarks of Senator Philip N. Costello, Jr., during the legislative hearings on P.A. 73–562 to support its statement that the act was modeled on NEPA. See Manchester Environmental Coalition v. Stockton, supra, 184 Conn. at 63 n.13, 441 A.2d 68 ; Conn. Joint Standing Committee Hearings, Environment, Pt. 3, 1973 Sess., p. 1031, remarks of Senator Costello ("[t]he bill was modeled after [NEPA]"). The "bill" that Senator Costello was referring to, however, was not P.A. 73–562, but a previous version of the act that the legislature had passed in 1972. See Conn. Joint Standing Committee Hearings, supra, p. 1031; see also Public Acts 1972, No. 72–153 (P.A. 72–153). Governor Thomas J. Meskill vetoed that legislation on the ground that "it would require too much paper work and expense on the part of the state agencies ...." Conn. Joint Standing Committee Hearings, supra, p. 846, remarks of Senator Costello; see also Office of Legislative Research, Legislative History of the Connecticut Environmental Policy Act, January 30, 2008, 2008–R–0079, pp. 1–2 ("[t]he governor said [that P.A. 72–153] would overlap existing federal and state requirements, be too costly, and be onerous to administer"). After Governor Meskill vetoed P.A. 72–153, he issued an executive order "to achieve the vetoed act's ‘essential purposes.’ " Office of Legislative Research Report No. 2008–R–0079, supra, p. 2. In 1973, the legislature enacted P.A. 73–562, which generally tracked the language of Governor Meskill's executive order. See Office of Legislative Research, supra, p. 2. Senator Costello characterized P.A. 73–562 as "less in scope than [P.A. 72–153]." Conn. Joint Standing Committee Hearings, supra, p. 847; see also 16 S. Proc., Pt. 7, 1973 Sess., p. 3261, remarks of Senator Costello (characterizing P.A. 73–562 as "weaker than many would wish"); 16 H.R. Proc., supra, p. 7184, remarks of Representative Francis W. Ciampi ("[t]here are a number of areas in this bill which are much weaker than the vetoed act"); 16 H.R. Proc., supra, p. 7187, remarks of Representative Marilyn Pearson ("this is a weak bill"). Thus, while there are similarities between the act and NEPA, the act was not intended to have the same scope and meaning as NEPA in all respects.
Title 42 of the United States Code, § 4332, provides in relevant part: "The Congress authorizes and directs that, to the fullest extent possible ... (2) all agencies of the [f]ederal [g]overnment shall ... (C) include in every recommendation or report on proposals for legislation and other major [f]ederal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... (i) the environmental impact of the proposed action ...."
The plaintiff further contends that, because the act is remedial in nature, we should construe it liberally. See Manchester Environmental Coalition v. Stockton , supra, 184 Conn. at 57, 441 A.2d 68 ("[s]tatutes such as the [Connecticut Environmental Protection Act] are remedial in nature and should be liberally construed to accomplish their purpose"). The defendants contend that, to the contrary, "[w]hen the state waives sovereign immunity by statute ... a party who wishes to sue under the legislative waiver must come clearly within its provisions because [s]tatutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed." (Internal quotation marks omitted.) Duguay v. Hopkins , 191 Conn. 222, 232, 464 A.2d 45 (1983) ; see also White v. Burns , 213 Conn. 307, 312, 567 A.2d 1195 (1990) ("[w]here there is any doubt about their meaning or intent [statutes] are given the effect which makes the least rather than the most change in sovereign immunity"). These principles come into play, however, only when there is doubt about the meaning of the statute under review after this court has engaged in the full process of statutory interpretation. Cf. State v. Courchesne , 262 Conn. 537, 555, 816 A.2d 562 (2003) (rules of lenient or strict construction of criminal statutes come into play only when, "after the court has engaged in the full process of statutory interpretation, there is nonetheless a reasonable doubt about [the] statute's intended scope" [internal quotation marks omitted] ). Because we have no residual doubt about the meaning of § 22a–1c, we need not determine here which of these principles applies when they are in conflict.
The judgment is affirmed.
In this opinion PALMER, ZARELLA, and McDONALD, Js., concurred.
EVELEIGH, J., dissenting.
I respectfully dissent from the majority opinion, which affirms the judgment of the trial court dismissing the claims brought by the plaintiff, Connecticut Energy Marketers Association, against the defendants, the Department of Energy and Environmental Protection (department) and the Public Utilities Regulatory Authority (authority). First, respectfully, in my view, this is not an issue of sovereign immunity and the case should not have been dismissed on that basis. If, in fact, the case did not state a cause of action, as held by the trial court, the matter should have been subject to a motion to strike for failure to state a cause of action. I would return the matter to the trial court for further consideration on a motion to strike. Second, in my view, this case does state a cause of action. The trial court held that an environmental impact evaluation was only required "for activities funded by or proposed to be undertaken by the state. The [2013 Comprehensive Energy Strategy for Connecticut (comprehensive energy strategy) issued by the department] was neither." The court further held that "[b]ecause approval of the [comprehensive energy strategy] is not an action which may significantly affect the environment, as that phrase is defined in [General Statutes] §§ 22a–1b (c) and 22a–1c, the plaintiff has failed to state a claim under the [Environmental Policy Act (policy act), General Statutes § 22a–1 et seq. ]." Section 22a–1a–1 (2) of the Regulations of Connecticut State Agencies, however, defines "action" as, inter alia, "other proposed activity for which an agency exercises judgment or discretion as to the propriety of that action." This language is derived from § 22a–1b (c), which requires an agency to make a detailed written evaluation of any environmental impact "before deciding whether to undertake or approve such action." Thus, the agency's approval of an activity or sequence of proposed activities constitutes an "action" under the regulations if the activity may significantly affect the environment. Therefore, in my opinion, the present case does state a cause of action and should not have been dismissed. Rather, I would remand the matter to the trial court for a determination of whether the activity may significantly affect the environment. Therefore, I respectfully dissent.
The majority maintains in footnote 13 of its opinion that "[w]e do not believe that it was simply redundant for the legislature to make it clear that an environmental impact assessment is required either when a state actor undertakes the activity or when a private actor undertakes the activity, but the activity is funded by the state. In any event, it is far from clear that the state funds all activities by state actors, in whole or in part. We note, for example, that the federal government frequently funds state programs and projects, and, without having performed a comprehensive review of those activities, we are not prepared to say that the state contributes funding to all of them." (Emphasis in original.)
I continue to maintain, respectfully, that pursuant to § 22a–1a–1 (2) of the regulations, the word "action" includes "other proposed activity for which an agency exercises judgment or discretion as to the propriety of that action." The definition does not state that ultimate action must be undertaken by an agency or agencies.
The majority accurately highlights one of the problems in this case. The record is inadequate to determine the nature of the funding in this case. See footnote 13 of the majority opinion. Certainly, in the sense that the state is involved, the state funds payment for its employees reviewing the projects and any experts whom the state may consult. Although the record reflects the private funding of the project, we do not know if the state was being reimbursed for the costs in reviewing the project. This issue relates to the issues discussed in part I of this dissenting opinion. In my view, the matter should be returned for a factual hearing regarding the full nature of the funding in this matter. Otherwise, we are resorting to speculation regarding the true nature of this project and how facts that are developed at a hearing may relate to the appropriate interpretation of the statute.
I
I will not repeat the facts and procedural history since they are accurately reflected in the majority opinion. I will only reference the facts as they may relate to this dissenting opinion.
The trial court held that since the complaint did not state a cause of action under the policy act, "[t]herefore, the state's sovereign immunity remains undisturbed, and the court lacks subject matter jurisdiction. Consequently, the plaintiff's complaint is dismissed." (Footnote omitted.) A determination of the trial court's subject matter jurisdiction presents a question of law. Rocky Hill v. SecureCare Realty, LLC , 315 Conn. 265, 276, 105 A.3d 857 (2015). This court reviews de novo a trial court's ruling on a motion to dismiss. Id., at 276–77, 105 A.3d 857. "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Byrne v. Avery Center for Obstetrics & Gynecology, P.C. , 314 Conn. 433, 447, 102 A.3d 32 (2014).
The policy act is a supplement to the Connecticut Environmental Protection Act, General Statutes § 22a–14 et seq.Manchester Environmental Coalition v. Stockton , 184 Conn. 51, 66, 441 A.2d 68 (1981), overruled in part on other grounds by Waterbury v. Washington , 260 Conn. 506, 556, 800 A.2d 1102 (2002). The policy act contains the procedural requirements for ensuring that state actions receive a "thoughtful and meaningful consideration of environmental factors." Id., at 68, 441 A.2d 68. It provides in relevant part that agencies responsible for the primary recommendation or initiation of actions that may significantly affect the environment make a written evaluation of the environmental consequences of the proposed action. See General Statutes § 22a–1b (c). "[A]n impact statement is required whenever the project will arguably damage the environment." Manchester Environmental Coalition v. Stockton , supra, at 67, 441 A.2d 68. "The determination of whether an action may significantly affect the environment is a legal issue, involving the interpretation of [§§ 22a–1b and 22a–1c ], which can be decided by a court." (Internal quotation marks omitted.) Id., at 68 n.20, 441 A.2d 68.
The complaint in the present case asserts jurisdiction "pursuant to [General Statutes] § 22a–16." The defendants have conceded that this provision confers standing on any person in a case brought under the policy act, irrespective of whether such person is classically aggrieved for the purpose of standing. As we stated in Manchester Environmental Coalition v. Stockton , supra, 184 Conn. at 64 n.15, 441 A.2d 68, the policy act does "not require aggrievement as a prerequisite to challenging the preparation, or lack of preparation, of an impact statement." Because the policy act is " ‘[i]n furtherance of and pursuant to’ " §§ 22a–1 and 22a–15, and because it was intended to be supplemental to the Connecticut Environmental Protection Act, standing to raise the procedural issues governed by the policy act is conferred by § 22a–16, and it is granted to the same persons on whom standing is conferred to raise substantive issues under the Connecticut Environmental Protection Act. (Internal quotation marks omitted.) Id., at 65–66, 441 A.2d 68. That is, " ‘any person’ " has standing to bring an action under the policy act to challenge a failure to prepare an environmental impact evaluation. Id., at 57, 441 A.2d 68. By conferring standing on "any person" to challenge the failure of an agency to prepare an impact statement, § 22a–16 stands as an explicit waiver of sovereign immunity with respect to such actions. In my view, therefore, it was incorrect for the trial court to grant the motion to dismiss on the basis of sovereign immunity. I would, therefore, remand the case to the trial court in order to consider the matter under the proper standard.
Although the defendants conceded in the trial court that § 22a–16 waives sovereign immunity for a policy act violation, they contended, nonetheless, that sovereign immunity is waived only for claims properly cognizable under the policy act, and not for claims that fail to state a legally sufficient policy act claim. Thus, they styled their motions as motions to dismiss, challenging the jurisdiction of the trial court on sovereign immunity grounds. The gravamen of the motions, however, are assertions that the complaint fails to state a claim under the policy act on which relief can be granted, which is properly the subject of a motion to strike. In reviewing the motion to strike, a court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc. , 277 Conn. 113, 117, 889 A.2d 810 (2006). If the facts set forth in the complaint "would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id., at 117–18, 889 A.2d 810. Moreover, the "pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership , 309 Conn. 342, 350, 71 A.3d 480 (2013). Therefore, the policy act specifically waives sovereign immunity. The question is not one of jurisdiction, but rather whether the complaint stated a cause of action.
II
In my view, the complaint does state a claim under the policy act on which relief can be granted. The standard of review of a trial court's conclusions on a matter of law is de novo. Id. Section 22a–1b (c) provides in relevant part that "[e]ach state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment shall in the case of each such proposed action make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action ...." Section 22a–1c, in turn, defines " ‘actions which may significantly affect the environment’ " as "individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state, which could have a major impact on the state's land, water, air ... or other environmental resources, or could serve short term to the disadvantage of long term environmental goals...." The majority holds that "for purposes of § 22a–1b (c), activities must both (1) be ‘proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state,’ and (2) potentially ‘have a major impact on the state's' environmental resources. The most natural reading of the phrase ‘proposed to be undertaken by an agency or agencies' is that the proposed or initiated activity that will allegedly have a major impact on the state's environment ultimately must ‘be undertaken by an agency or agencies.’ ... Thus, activities that are proposed by state actors, but which are ultimately performed by private entities, do not constitute ‘actions which may significantly affect the environment’ for purposes of § 22a–1b (c)." (Citation omitted; emphasis omitted.) While I concede that the majority's interpretation of the statute is a reasonable one, I find equally persuasive the interpretation of the plaintiff that once the state engages in an action that may potentially affect the environment, said action will require an environmental impact evaluation. The definition of the terms "action" and "proposed or initiated activity" are therefore crucial to the inquiry. In other words, does the proposed or initiated activity ultimately have to be performed by a state agency and thus, necessarily meet the requirements of the statute, or is it enough to meet those requirements that the state initiates the mechanism by which the acts are ultimately performed by a private entity? I would conclude that, in light of the two reasonable interpretations, the statute is ambiguous. Therefore, I would resort to extratextual sources, including the regulations, which is appropriate under General Statutes § 1–2z. Although not expressly stating in the opinion that the statute is ambiguous, the majority's reliance upon legislative history and the regulations would suggest that it also finds the statute to be ambiguous.
Shortly after the policy act was enacted, the department promulgated regulations that drew upon §§ 22a– 1b (c) and 22a–1c to define in greater depth the type of "actions which may significantly affect the environment." General Statutes § 22a–1b (c). I respectfully disagree with the majority's position that "[t]hus, activities that are proposed by state actors, but which are ultimately performed by private entities, do not constitute ‘actions which may significantly affect the environment’ for purposes of § 22a–1b (c)." If that were the case, there would have been no need for the phrase "activities proposed to be undertaken by state [actors] ...." General Statutes § 22a–1c. The legislature could have merely stated that if the state is not paying for the project in whole or in part, any other actions of state departments are not actions which affect the environment. Instead, the legislature used the additional phrase of "activities proposed to be undertaken by state [actors] ...." General Statutes § 22a–1c. If the interpretation of the statute is the one proposed by the majority, this statutory language is superfluous because, according to both the majority and the trial court, unless the activity is funded in whole or in part by the state, it does not affect the environment and, therefore, an environmental impact evaluation is not necessary. The use of the word "or" in § 22a–1c belies this interpretation. Rather, as I view the relevant language in § 22a–1c, the definition of " ‘actions which may significantly affect the environment’ " should be read to include those projects either funded in whole or in part by the state, or those in which state actors proposed action. The department's regulatory definition, is set forth in § 22a–1a–1 (2) of the regulations, which provides in relevant part that "[a]ction means an individual activity or a sequence of planned activities initiated or proposed to be undertaken by an agency or agencies, or funded in whole or in part by the state...." Thus, under the applicable regulatory definition, an "action" is an "activity" or "a sequence of planned activities" that are "initiated" or "funded" by an agency. Regs., Conn. State Agencies § 22a–1a–1 (2). The "proposed to be undertaken" language in § 22a–1a–1 (2) of the regulations is taken from § 22a–1c. The "initiated" language in § 22a–1a–1 (2) of the regulations is taken from the "initiation of actions" language of § 22a–1b (c).
Section 22a–1a–1 (2) of the regulations also includes within the applicable definition of "action" any "other proposed activity for which an agency exercises judgment or discretion as to the propriety of that action." This language is derived from General Statutes § 22a–1b (c), which requires an agency to make a detailed written evaluation of environmental impact "before deciding whether to undertake or approve such action." Thus, an agency's approval of an activity or sequence of proposed activities constitutes an "action" under the regulations if the activity may significantly affect the environment.
The essence of an "action," therefore, is an activity or sequence of planned activities that may have a significant impact on the environment. But the activity or sequence of activities must be triggered by an act of a state department, institution or agency. Under the department's regulations, activities are triggered by state action when an agency proposes the activity or sequence of activities, when an agency initiates the activities by an authorizing act of approval or by other acts of implementation, or when an agency funds the activity, in whole or in part. See Regs., Conn. State Agencies § 22a–1a–1 (2).
The majority claims that such a reading "would both require the insertion of words such as ‘to be undertaken by any person or entity’ into § 22a–1a–1 (2) of the regulations and General Statutes § 22a–1c and render the existing phrase ‘to be undertaken’ superfluous." I respectfully disagree. In my view, the regulations inform the meaning of the word action and the activity necessary for the requirement of an environmental impact evaluation to be instituted. If the state agency is the entity proposing the plan and exercising judgment over the plan, the regulations make it clear that an environmental impact evaluation should be completed regardless of what entity, public or private, ends up paying for the project. I further disagree with the majority's position that § 22a–1a–1 (2) of the regulations"applies only to activities that will be undertaken or funded by a state actor." The majority further concludes that "because the activities that the plaintiff alleges will cause major pollution will be undertaken by private parties, the defendants' activities in proposing and approving those activities do not fall within this definition regardless of whether they are discretionary or ministerial." Thus, my disagreement with the majority is regarding the "activities proposed to be undertaken by [the] state" language in General Statutes § 22a–1c. The majority views the activities as the actual project, whereas, in my view, the activities are the review and preparation of the plan upon which the ultimate project may be commenced. Indeed, as I have suggested previously in this opinion, if a state agency is involved in the project it obviously is either funded in whole or in part by the state. The majority's interpretation renders the "activities proposed to be undertaken by [the] state" language in § 22a–1c superfluous.
Moreover, I do not believe that the department's regulations run afoul of our jurisprudence by extending beyond the bounds of the statute. Rather, in my view, the regulations promulgated by the department inform the meanings of the relevant statutory provisions. Otherwise, the phrase "individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies" in General Statutes § 22a–1c becomes irrelevant, because all actions of the state are funded in whole or in part by the state. The language is superfluous unless "activities" and "sequence of planned activities" means the initiation of a plan that may be carried out by either the state or private entities. One of our fundamental rules of statutory construction is that we should construe relevant provisions so as to give meaning and purpose to every word in the statute. Respectfully, in my view, the majority's interpretation of this environmental statute does not adhere to that tenet.
The defendants are bound by validly enacted regulations in deciding whether to prepare an environmental impact evaluation. "Administrative regulations have the full force and effect of statutory law and are interpreted using the same process as statutory construction, namely, under the well established principles of ... § 1–2z." (Internal quotation marks omitted.) Sarrazin v. Coastal, Inc. , 311 Conn. 581, 603, 89 A.3d 841 (2014). "[R]egulations are presumed valid and, unless they are shown to be inconsistent with the authorizing statute, they have the force and effect of a statute." Travelers Ins. Co. v. Kulla , 216 Conn. 390, 399, 579 A.2d 525 (1990).
Because the term "initiated" is not defined in the relevant statute or in the department's regulations, it is to be given its plain and ordinary meaning under the rules of statutory construction. "In interpreting the language of a statute, the words must be given their plain and ordinary meaning and their natural and usual sense unless the context indicates that a different meaning was intended." (Internal quotation marks omitted.) Blumenthal v. Barnes , 261 Conn. 434, 460 n.37, 804 A.2d 152 (2002).
The plain meaning of the word "initiate" is "to cause or facilitate the beginning of" or "set going ...." Merriam–Webster's Collegiate Dictionary (11th Ed. 2011).
An entity initiates an activity, therefore, when it takes action to set a process in motion.
All agency action, of course, is authorized or directed in one way or another by the legislature. As echoed by the trial court in the present case, "an administrative agency possesses no inherent power. Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function." (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission , 259 Conn. 131, 155, 788 A.2d 1158 (2002). Legislative directives, however, cannot usually be implemented in the absence of discretionary determinations by the agencies. When an agency acts on its legislative authority to authorize or implement activities that may have a significant impact on the environment, the authorization or implementation of such activities is an "action" under the policy act and its implementing regulations.
The state agency or department initiates an action by providing the requisite authorization or approval of the activity or by engaging in other acts of implementation necessary for the activity or activities to be undertaken. If the activity or activities cannot be undertaken in the absence of such agency approval or implementation, the acts of approval and implementation are, in my view, acts of initiation.
Likewise, the word "proposed" is not defined in the statute or in the department's regulations. The plain meaning of the word "propose," however, is "to form or put forward a plan or intention" or "to set forth for acceptance or rejection ...." Merriam–Webster's Collegiate Dictionary, supra. A proposal, therefore, is in the nature of a recommendation. Indeed, the department's regulations indicate that the "agency responsible for the primary recommendation or initiation of actions is considered [the] sponsoring agency ...." Regs., Conn. State Agencies § 22a–1a–2. The word "propose" in General Statutes § 22a–1c does not mean to mandate or require. A "proposal" is the "act of putting forward or stating something for consideration ...." Webster's Collegiate Dictionary, supra. As aptly stated in New Haven v. Pac , Superior Court, judicial district of New Haven, Docket No. CV–83–0279985–S, 1991 WL 273130 (December 16, 1991) (5 Conn. L. Rptr. 356, 360 ), "[a]n environmental impact statement is required from the state when it initiates or recommends the action; the state must be the proponent." (Emphasis in original.) Moreover, by its very nature, a proposal is a recommendation made to another person or entity. In the context of the regulations quoted previously in this opinion, it may be made by the proponent to another agency or instrumentality of government, to the public, to the governor, or to the legislature. There is nothing in the policy act to suggest that agency proposals or recommendations made to the legislature are exempt from policy act coverage. As long as the state agency's recommendation to the legislature requests authority to initiate, approve, or implement an activity or activities that may significantly affect the environment, it is a recommendation or proposal to undertake or initiate an "action" within the meaning of the policy act.
We have construed environmental protection statutes liberally. See Keeney v. Old Saybrook , 237 Conn. 135, 157, 676 A.2d 795 (1996). Such statutes are "remedial in nature and should be liberally construed to accomplish their purpose." Manchester Environmental Coalition v. Stockton , supra, 184 Conn. at 57, 441 A.2d 68. The purpose of the policy act cannot be fulfilled if activities that will adversely affect the environment are attributed to the legislature, and not to the agencies that propose them for legislative approval. Thus, when an agency proposes an activity or sequence of planned activities that may significantly affect the environment, it must perform an environmental impact evaluation to accompany the proposal. "An environmental impact evaluation shall be prepared as close as possible to the time an agency proposes an action. The evaluation shall be prepared early enough so that it can practically serve as an important contribution to the decision-making process ...." Regs., Conn. State Agencies § 22a–1a–7 (b).
The trial court's memorandum of decision in the present case contains no discussion of what constitutes an action by an administrative agency or executive department that may "significantly affect the environment." Instead, the trial court focused on the act of the legislature approving the comprehensive energy strategy. It held that such legislative approval is not an "action" under the policy act. In substance, the trial court concluded that, "[u]ltimately, the [p]olicy [a]ct only requires an [environmental impact evaluation] for activities funded by or proposed to be undertaken by the state. The [comprehensive energy strategy] was neither. Because approval of the [comprehensive energy strategy] is not an action which may significantly affect the environment, as that phrase is defined in §§ 22a–1b (c) and 22a–1c, the plaintiff has failed to state a claim under the [p]olicy [a]ct." The discussion of the trial court preceding this holding suggests that the department, through the authority, played no role in formulating and proposing a natural gas conversion energy strategy, initiating the strategy through a series of discretionary determinations, approving and modifying the expansion plan, and issuing orders necessary for its implementation. According to the trial court, "the defendants simply followed the legislative duties imposed upon them."
The trial court proceeds as if the department performed a series of ministerial duties directed by the legislature with no authorization to make discretionary determinations, especially determinations crucial to whether a natural gas conversion plan would ever by implemented. Implicit in the trial court's holding is that the broad statement of objectives enunciated by the legislature could be translated into a concrete natural gas conversion plan, and be implemented, in the absence of discretionary determinations by an agency or agencies. I disagree with this interpretation. The department conceived of and implemented the natural gas conversion program in a way that is different only in form, but not in substance, from the way that administrative agencies normally formulate and implement programs authored by the legislature. Typically, the legislature devises a program by stating broad goals, objectives, and strategies, and it delegates to one or more agencies the authority to fashion a program that is consistent with the legislative objectives. The authority of the agency to implement the program is usually contained in the same legislation. Here, the legislature proceeded along the same path, but it did so in two separate pieces of legislation rather than one. In 2011, the legislature delegated to the department the authority to: (1) develop a plan setting forth the essential elements of a program to convert energy users to natural gas; and (2) recommend legislative and administrative actions to implement the plan. See Public Acts 2011, No. 11–80, § 51; see also General Statutes § 16a–3d. The department developed a natural gas conversion plan with specific elements and recommendation for implementation. In 2013, the legislature approved the department's plan and the administrative steps proposed to implement it, and it delegated to the department the authority to implement the plan as proposed. See Public Acts 2013, No. 13–298, § 51 (c); see also General Statutes § 16–19ww (d). Although the legislature proceeded in two steps rather than one, it nevertheless delegated to the department the authority to make discretionary determinations. Without these determinations, the program would neither have been developed nor would it have been implemented. I disagree with the trial court's analysis because, in my view, the trial court focused on the acts of the legislature and not on the discretionary determinations and other implementation activities of the department. The conversions to natural gas that are at the heart of this case could not have been implemented without the department's actions. Therefore, I would conclude, unlike the trial court, that the department initiated the proposed plan and had wide discretion in both the acceptance and administration of the plan. Consequently, the actions of the department were far from ministerial and should have required the court to evaluate any potential impact on the environment.
The trial court classified the department's actions as ministerial acts of adherence to strict and narrowly tailored legislative commands. In my view, the record shows otherwise. The legislature had neither the technical expertise nor the inclination to make the types of determinations it delegated to the department. As is customary, it relied on the expertise of the administrative agencies to make the determinations necessary to implement a natural gas conversion program. The determinations of the department, acting through the authority, were essential prerequisites to implementation of the plan and, as such, they were acts of "initiation" within the meaning of § 22a–1b (c).
The majority concludes that "[i]n the present case, the defendants have not proposed to undertake or to fund the activities that the plaintiff alleges will have a major impact on the state's environmental resources, namely, the construction of new gas pipelines in the state resulting in the increased discharge of methane gas into the atmosphere. Rather, these activities will be undertaken and funded by the local distribution companies, which are private entities. Accordingly, we conclude that the trial court properly granted the defendants' motions to dismiss on the ground that the requirement of an environmental impact evaluation in § 22a–1b (c) does not apply to their activities in the present case." I respectfully disagree. The difference in opinion is that the majority reads the statute to require that the state either undertake or fund the activities. I am not sure how the word undertake is different from the word funding because, in either event, the state is going to pay for the project. In my view, the statute requires an environmental impact evaluation where, as here, the state has made a proposal to a private entity or group of entities, and has used its discretion to determine how the ultimate project is to be constructed. Any other construction would render the term "initiated" in § 22a–1b (c) superfluous.
In 2011, the legislature mandated that the department propose a comprehensive energy strategy for the state. See Public Acts 2011, No. 11–80, § 51 (a); see also General Statutes § 16a–3d. As part of that comprehensive energy strategy, the department proposed the elements and contours of a natural gas conversion plan, and it proposed a series of administrative actions that placed the department at the center of the implementation process.
The department's proposal requested authority to review the plan from private gas companies, to determine its consistency with the comprehensive energy strategy, to modify the plan it had received, and, through the authority, to make the changes to the regulatory structure necessary to ensure the plan's feasibility and, ultimately, to approve it. In short, the department proposed a sequence of activities leading to performance of the conversions by private gas companies. This sequence of activities was first proposed by the department. None of the activities were mandated, or even mentioned, by the legislature in 2011. See Public Acts 2011, No. 11–80, § 51. Had the department not fashioned a natural gas conversion plan, and had the department not proposed the administrative steps to implement it, there would have been no plan for the legislature to approve or endorse. In 2013, the legislature gave the department discretion to review the plan it received from the gas companies in order to determine whether it was consistent with the comprehensive energy strategy. The department approved the plan only after the gas companies made numerous revisions that were directed by the department. Much of the gas companies' plan is the work of the department. If the department had not made the consistency determination, the plan would not have moved forward to final approval by the authority. Number 13–298, § 51 (c), of the 2013 Public Acts provides in relevant part that "[i]n the event that the commissioner determines that the [gas companies'] plan is consistent with the [c]omprehensive [e]nergy [s]trategy ... the [authority] shall ... approve or modify the plan ...." There would have been no plan to "approve or modify" had the department not made the threshold determination of consistency. Moreover, the legislative delegation to the authority to "approve or modify" the plan was extremely broad. The authority had almost unfettered discretion to condition its approval on modifications by the gas companies to their natural gas conversion plan. An agency's power to approve conditionally is inherent in the power to approve or disapprove. See Connecticut Fund for the Environment, Inc. v. Environmental Protection Agency , 672 F.2d 998, 1006 (2d Cir.), cert. denied sub nom. Manchester Environmental Coalition v. Environmental Protection Agency , 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982). This broad discretion provided the authority with the power to influence and shape the gas companies' plan and the activities necessary to implement it. Thereafter, the authority approved and modified the gas companies' plan. It also made a series of discretionary determinations to change the rate structure in ways that were necessary to the plan's feasibility, including determinations to lower the hurdle rate for recoupment of costs by the gas companies. Had the authority not approved the gas companies' plan as modified, and had the authority not made these other determinations, the gas companies' conversion plan could never have been implemented. The authority's actions, as effectuated in twenty-two separate orders, were a major part of the implementation plan. Thus, the department proposed the primary recommendation for activities that may significantly affect the environment, making it the "sponsoring agency" for purposes of § 22a–1a–2 of the Regulations of Connecticut State Agencies. It also initiated the activities, after legislative approval, by making discretionary determinations that were essential to permitting the gas companies to carry out their plan. The department's actions, through the authority, were "actions" within the meaning of the policy act and its implementing regulations. In my view, the department's consistency determination is much the same as the determination made by the Department of Planning and Energy Policy in Manchester Environmental Coalition v. Stockton , supra, 184 Conn. at 54–55, 441 A.2d 68. In that case, the Department of Planning and Energy Policy was required to determine that the project at issue "is not inimical to any statewide program objectives." Id., at 55, 441 A.2d 68. That determination was a prerequisite to the approval of the project by the Commissioner of Commerce. Here, the department's consistency determination was a prerequisite for approval of the gas companies' plan by the authority. Therefore, I would conclude that the defendants' involvement in the gas project constituted "action" within the meaning of the policy act.
III
The complaint alleges that if the defendants had performed an environmental assessment, they would have determined that the natural gas expansion plan will have a significant effect on the environment. The complaint also alleges that the plan, which proposes to convert 300,000 additional homes to natural gas and to build 900 miles of new gas lines, will significantly increase the amount of methane, a greenhouse gas, that is emitted each year by Connecticut's gas companies. Currently, it is alleged, the natural gas distribution system in Connecticut is leaking more than 200,000 metric tons of methane per year while serving 415,000 customers. Since the department's plan would almost double the number of gas customers, increased methane emissions, it is alleged, would result and their extent should have been assessed and, if necessary, moderated.
As alleged in the complaint, the impact of methane is considerably more serious than that of carbon dioxide. The United States Environmental Protection Agency has concluded that methane is more than twenty times as effective as carbon dioxide in trapping heat in the atmosphere. For this reason, Connecticut has established targets for decreased greenhouse gas emissions in the state's Global Warming Solutions Act. See Public Acts 2008, No. 08–98, § 2.
The complaint also alleges that the department's plan to build 900 miles of new gas lines requires construction activities that will adversely impact the state's freshwater wetlands, soils, water, groundwater aquifers, trees and wildlife habitat. The complaint states that these consequences, like the increased methane emissions, should also have been assessed and, if necessary, moderated.
All of these activities were undertaken with no environmental impact evaluation. As a result of the majority decision today, the state will be able to avoid an environmental review of future projects by following the same process it followed in the present case. Such a result is not contemplated by the policy act. The policy act was designed to ensure a thoughtful and meaningful consideration of environmental issues. The procedures mandated by the policy act should have been invoked in this case.
In my view, therefore, the decision of the trial court dismissing the complaint for lack of subject matter jurisdiction should be reversed. The matter should be remanded to the trial court with instructions consistent with a determination that the defendants proposed and initiated an "action" within the meaning of the policy act and for further proceedings to determine whether this "action" will arguably have a significant effect on the environment.
Accordingly, I respectfully dissent.