Opinion
No. X03 CV 03 0522643 S
July 28, 2004
MEMORANDUM OF DECISION MOTION TO DISMISS
The plaintiffs, Town of Middlebury, Preservation Middlebury, Citizens for the Defense of Oxford, William Stowell and Mira Schachne, filed this appeal from a decision of the defendant, Department of Environmental Protection ("department") granting seven new source air permits to the defendant Towantic Energy, LLC ("Towantic") in connection with Towantic's construction and operation of a combined cycle gas turbine power plant in Oxford. The department issued the permits pursuant to § 22a-174 of the General Statutes and § 22a-174-3a of the Regulations of Connecticut State Agencies. The plaintiffs filed this appeal pursuant to General Statutes § 4-183. Towantic filed a motion to dismiss the plaintiffs' appeal for lack of subject matter jurisdiction on the ground that the department's decision is not a "final decision" in a "contested case" entitling the plaintiff to judicial review under the Uniform Administrative Procedure Act ("UAPA"), because the hearing the department held was not "required by statute." The department joined in the motion filed by Towantic.
General Statutes § 22a-174(c) provides, in relevant part: "The commissioner shall have the power, in accordance with the regulations adopted by him, (1) to require that a person, before undertaking the construction, installation, enlargement or establishment of a new air CT Page 9515-ar contaminant source specified in the regulations adopted under subsection (a), submit to him plans, specifications and such information as he deems reasonably necessary relating to the construction, installation, enlargement, or establishment of such new air contaminant source; (2) to issue a permit approving such plans and specifications and permitting the construction, installation, enlargement or establishment of the new air contaminant source in accordance with such plans . . ."
Effective March 15, 2002, the permitting requirements of § 22a-174-3 were codified as § 22a-174-3a of the Regulations of Connecticut State Agencies and captioned "Permit to Construct and Operate Stationary Sources."
"There is no absolute right of appeal to the courts from a decision of an administrative agency." Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993). Judicial review of an administrative agency's decision is governed by General Statutes § 4-183(a), which limits the right to an administrative appeal to a "final decision." General Statutes § 4-166(3) provides that a "final decision" means "(A) the agency decision in a contested case . . ." Section 4-166(2) defines "contested case" as "a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . ." "By now it is well established that one requirement for a final decision in a contested case, upon which the jurisdiction of the trial court rests in a UAPA appeal, is that any hearing held be required CT Page 9515-am by statute, not merely by agency rule, regulation or policy. Lewis v. Gaming Policy Board, 224 Conn. 693, 704-05, 620 A.2d 780 (1993); see also Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 800-01, 629 A.2d 367 (1993)." (Emphasis in original.) Morel v. Commissioner of Public Health, 262 Conn. 222, 234, 811 A.2d 1256 (2002).
The permits issued by the department to Towantic that are the subject of this appeal are permits to construct and operate stationary sources governed by § 22a-174-3a of the Regulations of Connecticut State Agencies. The department held a public hearing on the permit applications pursuant to section 22a-174-2a(c) of the Regulations of Connecticut State Agencies, which provides that the commissioner shall hold a public informational hearing concerning the issuance of a permit for a new stationary source following the receipt of a written request for such a hearing. 42 U.S.C. § 7475(a)(2) provides that no major emitting facility may be constructed unless a public hearing has been held.
The plaintiffs do not contest the defendants' description of the permits at issue here as permits to construct and operate stationary sources, not general permits or "Title V" permits, for which General Statutes § 22a-174 specifically provides a right of appeal. See General Statutes § 22a-174-(l) and (m). (See Towantic's Memorandum in Support of Motion to Dismiss, pp. 2-3.)
Effective March 15, 2002, the procedural requirements of § 22a-174-3 were codified as 22a-174-2a of the Regulations of Connecticut State Agencies, which is captioned "Procedural Requirements for new source review and Title V permitting."
42 U.S.C. § 7475(a)(2) provides, in relevant part: "No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless . . . (2) the proposed permit has been subject to a review in accordance with this section, the required analysis has been conducted in accordance with regulations promulgated by the Administrator, and a public hearing has been held with opportunity for interested persons including representatives of the Administrator to appear and submit written or oral presentations on the air quality impact of such source, alternatives thereto, control technology requirements, and other appropriate considerations."
The plaintiffs rely on General Statutes §§ 22a-171 and 22a-174(a)(1), the regulations cited above, and 42 U.S.C. § 7475, as the bases for finding that the department's decision was a "final decision." Section 22a-171 provides, in relevant part: "The commissioner shall . . . adopt, amend, repeal and enforce regulations as provided in section 22a-174 and do any other act necessary to enforce the provisions of this chapter . . ." Section 22a-174(a)(1) provides, in relevant part: "The commissioner . . . shall have the power to formulate, adopt, amend and repeal regulations to control and prohibit air pollution throughout the state or in such areas of the state as are affected thereby, which regulations shall be consistent with the federal Air Pollution Control Act . . ." The plaintiffs claim that a reasonable interpretation of the federal and state statutes and regulations referenced above, including their history and operation, leads to the conclusion that the department's action was appealable under the UAPA as a final decision in a contested case because Towantic's permit applications were required to be determined by the agency only after opportunity for a public hearing, which was in fact held.
The defendants argue that agency hearings held pursuant to a federal statute mandating a public hearing do not qualify for "contested case" status pursuant to the Supreme Court's reasoning in Morel v. Commissioner of Public Health, supra, 262 Conn. 222. In Morel, the Supreme Court concluded that a decision following a hearing required by federal regulations did not constitute a "final decision" in a "contested case." The defendants argue that the reasoning in Morel applies to federal CT Page 9515-an statutes as well as federal regulations. The defendants further argue that state statutes authorizing the commissioner to enact regulations and requiring those regulations to be consistent with the federal Air Pollution Control Act do not indicate an intent by the legislature to create a right of judicial review of decisions made pursuant to those regulations. The defendants point out that in enacting 42 U.S.C. § 7475, the United States Congress expressed no intent to create a right of judicial review. The defendants argue that where Congress intends to mandate judicial review of a state agency decision, it expressly states its intent, as it did with respect to the issuance of "Title V" permits, by providing specifically that procedures involving those permits include "an opportunity for judicial review in State court of the final permit action . . ." 42 U.S.C. § 7661a(b)(6). The defendants claim that the legislature's enactment of General Statutes § 22a-174(m) specifically providing for judicial review in response to this federal requirement evidences the legislature's awareness that simply referencing a federal requirement is not sufficient to create a right of judicial review in state court.
General Statutes § 22a-174(m) provides: "In any proceeding on an application for a permit which is required under 42 U.S.C. § 7661a, the applicant, and any other person entitled under said section to obtain judicial review of the commissioner's final action on such application may appeal such action in accordance with the provisions of section 4-183."
The issue of whether a hearing held pursuant to a federal statutory hearing requirement is sufficient to constitute a "contested case" entitling the plaintiff to appeal pursuant to the UAPA has not been decided by the Supreme or Appellate courts. See Morel v. Commissioner of Public Health, supra, 262 Conn. 222, 235 n. 13 ("Indeed we never have decided whether a hearing required by a federal statute would satisfy the definition of a `contested case' under the UAPA"); Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 803 n. 14, 629 A.2d 367 (1993). Only one superior court case has ever addressed this issue. Richards v. Alibozek, Superior Court, judicial district of New Britain, Docket No. 0510286 (June 26, 2002) ( 32 Conn.L.Rptr. 588) (a decision of the State Board of Education for Services to the Blind made after a hearing required by the Federal Rehabilitation Act of 1973, 29 U.S.C. § 722(c)(1), did not constitute a final decision in a contested case). Based upon the plain wording of the statute and the public policy behind the contested case rule as articulated in Lewis and Morel discussed below, the court finds that a hearing held pursuant to a federal statute, without a state statutory provision for hearing or judicial review, does not meet the definition of a hearing required by statute.
In Lewis v. Gaming Policy Board, supra, 224 Conn. 693, the Supreme Court held that proceedings in which only an agency rule, regulation or policy requires a determination of rights after a hearing will not qualify for contested case status. In interpreting the meaning of "required by statute," the Court looked at both the plain meaning of the words and the CT Page 9515-ao legislative history of the UAPA. "[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent . . . The intent of the legislature . . . is to be found not in what the legislature meant to say, but in the meaning of what it did say." (Citation omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, supra, 224 Conn. 706. In light of these rules of statutory construction, the Court concluded: "The `required by statute' language in 4-166(2), if construed according to its commonly approved usage, can only mean that before a proceeding qualifies as an contested case, an agency must be obligated by an act promulgated by the legislature to determine the legal rights, duties or privileges of a party." (Emphasis added.) Id. The court further articulated the public policy behind the contested case rule: "Although 4-166 excludes a large class of agency decision-making from contested case status, it nonetheless provides that the legislature, rather than the agencies, has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which class of cases qualify for contested case status reflects an important matter of public policy and the primary responsibility for formulating public policy must remain with the legislature." (Internal quotation marks omitted.) Id., 709.
In Morel v. Commissioner of Public Health, supra, 262 Conn. 222, the Supreme Court found that a hearing mandated by federal regulation did not constitute a hearing "required by statute" under the UAPA. In Morel, the federal regulations governing the special supplemental nutrition program for women, infants and children ("WIC") required an administrative hearing before a vendor may be disqualified from participation in the program based upon a violation of its provisions. The state statute, General Statutes § 19a-59c, authorized the department of public health to administer the WIC program in accordance with the federal law and regulations, and authorized the commissioner of public health to adopt regulations necessary to administer the program. The Court found that "[t]he source of the hearing requirement in the present case was the federal regulation, not the state statute. Put another way, the state statute that required compliance with federal regulations, which in turn required a hearing, did not mandate a hearing within the meaning of § 4-166(2). That two step process is simply too slim a statutory reed to support a conclusion that the hearing is statutorily required under the UAPA." Id., 236-37.
The Court in Morel reiterated the public policy purpose of the contested case rule it had recognized in Lewis, stating that its CT Page 9515-ap conclusion was "supported by the purpose underlying the requirement of the statutory requirement for a hearing in order to be a final decision in a contested case. That purpose rests on `the desirability of ensuring that the legislature, rather than the agencies, has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which class of case qualify[ies] for contested case status reflects an important matter of public policy and the primary responsibility for formulating public policy must remain with the legislature . . . Thus, in the present case, the legislature has authorized participation in the WIC program in accordance with federal law and regulations. That authorization merely refers to the requirement of governing federal law in any event, and . . . the federal government could at any time amend those regulations to eliminate the requirement for such a hearing. Under these circumstances, we do not read the broad, general language of § 19a-59c as evidencing the kind of legislative policy choice, informing our UAPA, that lies behind the hearing requirement at issue." (Citations omitted.) Id., 238-39; see Lewis v. Gaming Policy Board, supra 224 Conn. 709. The Court in Morel noted the contrast between § 19a-59c and other statutes that use specific statutory language to require the agency to provide a hearing before taking adverse licensure action and concluded that the contrast between § 19a-59c and those statutes "is pervasive evidence of a lack of a similar legislative purpose to impose by statute a hearing requirement for vendors in the WIC program." Id., 239-40.
The reasoning in Morel regarding federal regulations and the public policy purpose behind the contested case rule would apply equally to federal statutes. As the court stated in Richards v. Alibozek, decided before the Morel case: "Although Congress is certainly a `legislature,' and the Lewis [ v. Gaming Policy Board, supra, 224 Conn. 693] court did not explicitly limit its analysis to the `Connecticut legislature,' it is hard to imagine that the court had Congress in mind when it emphasized that the `legislature' should have the primary role in deciding which administrative proceedings qualify for judicial review. The apparent point of the language in Lewis is that the Connecticut General Assembly, because it is elected by the voters in Connecticut, should decide Connecticut public policy . . . It would have been illogical for the court to have suggested that the Congress of the United States should decide an important issue of state public policy." Richards v. Alibozek, Superior Court, judicial district of New Britain, Docket No. CV 01 0510286 (June 26, 2002) ( 32 Conn.L.Rptr. 588).
The Supreme Court in both Lewis and Morel emphasized the role of the "legislature" as the entity entrusted with formulating the important CT Page 9515-aq public policy regarding which cases qualify for judicial review under the UAPA. In both of those cases, the "legislature" to which the Court is referring is the Connecticut legislature. In light of the analysis in those cases, to construe the phrase "required by statute" in the definition of contested case as including federal statutes, would be to take the public policy function of determining whether certain cases are entitled to review out of the hands of the Connecticut legislature. The discussions in Lewis and Morel regarding the public policy behind the contested case requirement in the UAPA lead to the conclusion that the only reasonable interpretation of the phrase "required by statute" in General Statutes § 4-166(2) is that the legislature intended that review be limited to those decisions made after hearings required by state statute.
Further bolstering the conclusion that the contested case rule does not include hearings required by federal statutes are those situations where a federal statute, such as 42 U.S.C. § 7661a(b)(6), provides for judicial review in state court of decisions regarding "Title V" permits, and a concomitant state statute, such as General Statutes § 22a-174m, which specifically provides that those entitled to review under the federal statute may appeal such action under the UAPA. If a hearing requirement contained in the federal statute was sufficient to meet the contested case requirement so as to provide a right to an appeal under the UAPA, then the enactment of a state statute providing that right of appeal would be unnecessary. In this case, the federal statute, 42 U.S.C. § 7475, provides no evidence of an intent that a decision should be reviewable, and the Connecticut legislature, by not including a hearing requirement or a review requirement for permits to construct and operate stationary sources issued pursuant to General Statutes § 22a-174(c), has not provided such a right.
Accordingly, those proceedings in which a hearing is held as required by federal statute, without a concomitant state statute providing either for hearing or judicial review, do not qualify as contested cases under the UAPA. Because the hearing held by the department in this case was not required by state statute, the department's decision was not a final decision in a contested case from which the plaintiffs are entitled to appeal. Towantic's motion to dismiss is granted.
Peck, J.