Connecticut's Environmental Protection Act of 1971 (the "Act"), granting standing to public or private entities of any kind to intervene in any administrative process to raise environmental issues, is an area of the law which has long needed clarification. Nizzardo v. State Traffic Commission, 788 A.2d 1158 (2002), appears to provide much of that needed clarification. Focusing on Nizzardo and Connecticut General Statutes ("C.G.S.") § 22a-19,) this article traces the history of environmental intervention in Connecticut, assesses the legal impacts of Nizzardo, and concludes that Nizzardo provides much needed clarity and definition to the environmental intervention process.
Released in January 2002, Nizzardo, is a light at the end of a tunnel long darkened by the uncertainty about the scope and requirements for environmental intervention. Nizzardo requires interveners in administrative proceedings to fact plead. This pleading allows the administrative agencies to determine whether they have jurisdiction over the issues raised by the interveners. Further, it allows the parties appearing before the agencies to understand the issues the interveners intend to raise.1 Nizzardo's two-pronged test promises to refresh the administrative environmental intervention process in Connecticut, because it ends the all too frequent practice of generalized summary pleadings by environmental interveners in favor of focused environmental review.
HISTORY
Prior to 1970, Connecticut, like the majority of states granted standing to parties either: (1) where the intervener had demonstrated that it or one of its members has been directly injured or (2) where the law expressly provided for such standing. 2
Traditionally, the Connecticut Courts concluded that the public interest was served by the state government's component agencies, such as the Water Resources Commission (predecessor to the Department of Environmental Protection), rather than by individual parties voicing environmental concerns. This rationale arose from the view that administrative agencies, in contrast to private citizens, had the economic resources, scientific expertise, and legal training to best assess environmental concerns. In those cases where private citizens were granted standing, they were required to cross a high threshold demonstrating the direct impact they suffered from the proposed administrative action. 3
Therefore, Connecticut, like most states and the Federal jurisdictions, required an environmental intervener to show either injury in fact or a law permitting standing in order to be allowed to intervene. 4 Connecticut had no such law.
In 1970, the Michigan legislature, by statute, granted to its citizens standing to raise environmental issues in administrative proceedings. Following Michigan's lead, in 1971 Connecticut enacted the Environmental Protection Act (the "Act") of 1971.
The Act, found at §22a-14 through §22a-20, inclusive, of the C.G.S. at § 22a-19 provides to public and private parties standing to intervene in administrative proceedings to raise environmental issues and at § 22a-16 provides the same parties the opportunity to seek declaratory or equitable relief in superior court. C.G.S. § 22a-19, the section authorizing environmental intervention into administrative proceedings provides, in relevant part, that "in any administrative, licensing, or other proceeding, and in any judicial review thereof made by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which had, or which is reasonably likely to have, the effect of unreasonably polluting, impairing, or destroying the public trust in air, water, or other natural resources of the state." 5
Under the Ninth Amendment to the U. S. Constitution there exists a public trust in the environment. 6 The Act supports this proposition by providing that Connecticut residents have standing to protect the "public trust in the air, water, and other natural resources of the state of Connecticut." 7 Under the Act, parties may intervene by the "filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." 8
Comparison of the Michigan Act to the Connecticut Act reveals one small, but significant difference. Connecticut's intervention statute incorporates the word "unreasonable" into its regulatory rubric. The General Assembly employed this term to distinguish frivolous interventions from those with merit. Such a distinction is required because " all of us, to one degree or another, pollute the environment, the mere act of breathing constitutes pollution." 9
In spite of this legislative intent, interveners have plead, in conclusory fashion, that a "proposed action of the proponent is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the State." 10 Tribunals have not required interveners to indicate the specific environmental media suffering adverse effect, the specific activities involved in the proposed project that were likely to result in adverse environmental impact, or suggest "feasible and prudent" alternatives to minimize the adverse environmental impact. Rather, traditionally, it has been sufficient to plead that the proposed action is "likely to have the effect of unreasonably polluting, impairing, or destroying the public trust in the environment." 11
In response, parties to an administrative proceeding in which intervention had occurred under § 22a-19 were compelled to prove a set of negatives. To defeat an intervener's allegations and succeed on a permit application, pre-Nizzardo permit applicants were required to demonstrate the following proof matrix (i) that no natural resource would be adversely impacted in a manner deemed unreasonable (all natural resources would have to be analyzed and discussed) (ii) that no activity in the applicant's proposal (and all activities would have to be examined in the light of all of natural resources), will threaten resources in an unreasonable manner; (iii) that there would be no harm to any resource as a result of the activity proposed by the applicant; and (iv) if any activity might potentially produce some level of harm to some resource, no feasible or prudent alternative to that activity existed. The uncertainty, time and expense associated with proving the foregoing negatives, many of which were beyond the contemplation of even the interveners, significantly burdened the administrative process.
The Pre-Nizzardo tolerance of generalized C.G.S. § 22a-19 pleadings is a sharp departure from the Connecticut traditional civil pleading rules requiring parties to plead facts, not conclusions. A fact-pleading state, Connecticut requires that pleadings in civil cases "contain a plain and concise statement of the material facts on which the pleader relies…, if any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement…."12
In 1984, the Connecticut Supreme Court in Connecticut Fund for the Environment v. Stamford, 470 A.2d 1214 (1984) (hereafter "CFE"), analyzed C.G.S. § 22a-19 and suggested, without actually holding, that intervention pleadings must have a certain level of specificity to allow the court to confer standing. 13 In that wetlands permit application, an intervener raised an air pollution issue. The Stamford Environmental Protection Board, a municipal wetland agency, was found not to have jurisdiction over the air pollution issue because by statute it had only been given jurisdiction over wetlands issues and was "not a little EPA." It was an agency with limited jurisdiction. 14 The Court held that "Section 22a-19 is not intended to expand the jurisdiction of an administrative body whenever an intervener raises environmental issues." 15 But how was an agency to ascertain if an intervener's issues were within its jurisdiction if presented with conclusory pleadings?
NIZZARDO
Released January 29, 2002, Nizzardo v. State Traffic Commission, follows CFE's logic, but takes it one step further by requiring fact pleading. Confronted with an intervention request in which the intervener failed to plead with specificity but alleged his conclusion that from the applicant's proposal arose the likelihood of unreasonable pollution, impairment or destruction of the public trust in air, water, wildlife or other natural resource, 16 the Nizzardo Court ended the practice of generalized pleadings in the environmental intervention arena.
In Nizzardo the court held "that a petition for intervention filed under C.G.S. § 22a-19 must contain specific factual allegations setting forth the environmental issue that the intervener intends to raise. The facts contained therein should be sufficient to allow the agency to determine that from the face of the petition whether the intervention implicates an issue within the agency's jurisdiction." 17 By requiring that the intervener must provide enough specificity to allow the agency and the permit applicant sufficient information to determine the environmental issues implicated, the Nizzardo Court suggested that the statement's generalized language such as "the proposed action of the proponent is reasonably likely to unreasonably pollute a natural resource of the State," is not sufficient to confer standing. 18
The Nizzardo Court conditioned an intervener's access to an administrative proceeding to raise environmental issues on two conditions. First, by applying the jurisdictional principles first enunciated in CFE, the Nizzardo Court concluded that C.G.S. § 22a-19 grants standing to environmental interveners to raise only "those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." 19 Second, the Court determined that to qualify as a "verified pleading" under C.G.S. § 22a-19, a petition must contain "specific factual allegations setting forth the environmental issue that the intervener intends to raise." 20
Relying on the statutory construction of C.G.S. § 22a-19 to reach its conclusions, the Nizzardo Court analyzed the statute according to well-established principles of statutory construction. The Court explained that, "in construing a statute, common sense must be used and courts must assume that a reasonable and rationale result was intended." 21 The Court justified its condemnation of the previously tolerated generalized pleading in favor of fact pleading, by stating, "our construction of the pleading requirement of C.G.S. § 22a-19 is reasonable and consistent with our conclusion that intervention under that statute must implicate an environmental issue within that agency's jurisdiction. By requiring that the intervention petitions under C.G.S. § 22a-19 allege facts setting forth the environmental claim that the intervener intends to raise, we ensure that the agency will have the ability to determine, upon review of the petition whether the agency properly has jurisdiction over that environmental issue." 22
The Court Analyzed the term "verified pleading". Recalling that the term "verified pleading" is a term of art having a particular meaning in the law, the Court reminded the bar that the word pleading is defined as "a formal document in which a party to a legal proceeding . . . sets forth a response to allegations, claims, denials or defenses." 23
Next, the Court discussed the term "verified" and reminded us it means sworn. The Nizzardo Court concluded that "swearing to the truth of general statutory language would be meaningless. Any interpretation of the term "verified pleading" as not requiring factual allegations would negate the meaning of verified, in violation of our rule of statutory construction that "statutes must be construed, if possible such that no clause, sentence or word shall be superfluous void or insignificant." 24 The Court's view is supported by the Rules of Practice, 10-1 and cases holding that, "in a civil proceeding, a pleading must contain a 'plain and concise statement of the material facts on which the pleader relies' . . .. "25 Clearly, stating the general phrase that harm is likely to result is not a plain and concise statement of material facts.
To date, Nizzardo has experienced positive treatment. In Keiser v. Zoning Commission of Redding, 2002 Conn. App. LEXIS 502 (2002), a case centering on an intervention by a plaintiff who contended that a wastewater treatment facility would have a detrimental impact on the environment, the Court not only followed the Nizzardo logic, but referred to it as a two pronged "test." 26 Although noting that a pleading need not be worded with mathematical precision, the Keiser Court determined that to satisfy the Nizzardo requirements, a pleading "must contain specific factual allegations that identify the environmental issues the intervener intends to raise. It must also do so in a manner that will allow the zoning commission to determine whether the intervention implicates an issue within its jurisdiction." 27
A QUESTION
While the Nizzardo Court clearly required fact pleading in intervention petitions, it left at least one question unanswered. While the Nizzardo Court, like the CFE Court found that municipal agencies are not "little EPAs" the Nizzardo court failed to suggest the proper outcome when the agency is the DEP rather than a municipal or other agency of limited jurisdiction. The Connecticut DEP, whether acting in its capacity as an inland wetlands agency or in other permit applications, such as water diversion, dam safety permits, and the like, is essentially a "little EPA." Does an intervention filing under C.G.S. § 22a-19 in a DEP proceeding expand the scope of review to include any environmental issue raised?
To classify Connecticut DEP as a "little EPA" raises a problem of inconsistency in application of environmental laws. Under the rationale that the DEP is a little EPA, an applicant filing an identical inland wetlands permit with a municipal agency and with the DEP might confront separate and conflicting bodies of law and, perhaps, opposite results.
The Nizzardo Court suggests that although specific agencies have limited environmental jurisdiction, a claimant may adjudicate issues outside the agencies jurisdiction by seeking injunctive or declaratory relief under C.G.S. § 22a-16. Such reasoning suggests that the Supreme Court would conclude that DEP's jurisdiction in a wetlands application is confined to wetlands statutes and issues; in a diversion permit application, DEP's jurisdiction is limited to diversion statutes and in a dam safety application, the dam safety statutes, leaving an intervener with broader issues to raise under C.G.S. § 22a-16. Such a result would be consistent and logical.
CONCLUSION
Nizzardo promises to correct the problems of thirty years of generalized pleadings, in which interveners have filed pleadings, which failed to state facts with specificity and relegated permit applicants to proving a series of negatives. After Nizzardo, both the agency and the applicant will fully understand the concern of the interveners as soon as the intervener files its petition and, thus, the proceedings can be focused on specific issues within the jurisdiction of the agency. Such specifically pled intervention petitions promise to minimize the amount of time and resources applicants and agencies expend, and focus those resources on real issues. See Nizzardo v. State Traffic Comm'n, 259 Conn. 131; 788 A.2d 1158; 2002 Conn. LEXIS (2002).
2. See Sierra Club v. Morton, 405 U.S. 727; 92 S.CT. 1361; 31 L. Ed.2d 636; 1972 U.S. LEXIS 118; 3 ERC (BNA) 2039; 2 ELR 20192 (1972). See also Manufacturers Association of Connecticut v. Administrator, Unemployment Act, 20 Conn. Supp. 108, 112; 125 A.2d 317; 1956 Conn. Super LEXIS 57 (1956), a case in which the court refused to grant a taxpayer standing to determine the correctness of the administrator's interpretation because the tax payer failed to meet the requisite standing requirements. The court stated that the taxpayer's interest was "too remote, speculative and uncertain" to maintain the action. See id.; See also Coyle v. Housing Authority of Danbury, 151Conn. 421; 198 A.2d 709; 1964 Conn. LEXIS 205 (1964), in which the court determined that a party had standing to attack a law only if he alleged facts, which if proven, would establish that, in its impact on him, the legislation attacked adversely affected his constitutionally protected rights. See id. at 424. The court indicated further that one who is not personally injured by operation of law is not deprived of a right. See id.
3. See Hiland v. Ives, 28 Conn. Supp. 243; 257 A.2d 822; 1966 Conn. Super. LEXIS 174 (1966). In this case in which taxpayers and property owners sought to enjoin the state highway commission from taking land for the layout of a trunk-line highway, the court addressed the standing requirements. See id. Characterizing the standing requirements as a mechanism for "prevent[ing] the courts from being overrun by self appointed protectors of public interest," the court stated that public authorities are better equipped to protect the public interest. See id. at 247. See also I.R. Stitch Associates, Inc. v. Town Council of West Hartford, 155 Conn. 1; 229 A.2d 545; 1967 Conn. Lexis 517 (1967), a case concerning entitlement to appeal a planning and zoning decision reached by West Hartford's General Assembly. In that case, the court determined that a party seeking an appeal is required to establish that it is "aggrieved by showing that [it] had a specific, personal and legal interest in the subject matter of the decision as distinguished from a general interest such as is the concern of all members of the community and that [it] [was] specially and injuriously affected in [its] property or other legal rights." See id. at 2 quoting Tucker v. Zoning Board of Appeals, 151 Conn. 510, 514; 199 A.2d 685 (1964).
4. See Sierra Club 405 U.S. at 736-4
5. See C.G.S. § 22a-19(a) (2001).
6. See Environmental Defense Fund v. Tennessee Valley Authority, 458 F.2d 1164; 1972 U.S. App. LEXIS 6308; 4 ERC (BNA) 1850; 44 Oil & Gas Rep. 451; 2 ELR 20726 (6th Cir. 1972). In this case three organizations and individuals asserted that they would be irreparably harmed if the Tennessee Valley Authority continued construction of the Tellico Project without filing an environmental impact statement as mandated under the National Environmental Policy Act (NEPA). The parties asserted standing under the Ninth Amendment, NEPA , Fifth Amendment, and federal common law and the court found in their favor. See id. at 1171.
7. See C.G.S. § 22a-15 (2001).
8. See C.G.S. § 22a-19(a) (2001).
9. See Haynes N. Johnson, The Environmental Protection Act of 1971, 46 Conn. Bar Journal No. 3 at 430 quoting House Tr., March 16, 1971 at 1207-8.
10. See C.G.S. 22a-19(a) (2001).
11. See id.
12. See Conn. Rules of Court § 10-1 (2002).
13. See Connecticut Fund for the Environment, Inc., v. City of Stamford, 192 Conn. 247; 470 A.2d 1214; 1984 Conn. LEXIS 513; 21 ERC (BNA) 1285 (1984).
14. See id. at 250.
15. See id.
16. See Nizzardo, 259 Conn. at 148.
17. See id. at 164-165.
18. See id.
19. See Nizzardo, 259 Conn. at 148.
20. See id. at 164-165.
21. See id at 165.
22. See id at 164.
23. See id. at 162, quoting Black's Law Dictionary (7th Ed.1999).
24. See id. at 163,quoting State v. Gibbs, 254 Conn. 578, 602, 758 A.2d 327 (2000).
25. See id. at 162., quoting Conn. Practice Book § 10-1.
26. See Keiser v. Zoning Commission of Redding, 2002 Conn. App. LEXIS 502 (2002).
27. See id.
This article was originally printed in the November 2002 issue of the Connecticut Lawyer. It is reprinted with permission.