Environmental Law: Act Codifies Rules For Environmental Intervention Petitions
In 1971, the General Assembly enacted the Environmental Protection Act of 1971 (CEPA), Connecticut General Statutes §§ 22a-14 through 22a-20. Section 22a-15 declares that "[i]t is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction."
CEPA's two primary remedies are (1) Section 22a-16 which allows any person to seek injunctive relief "for the protection of the public trust in the air, water, and other natural resources of the state from unreasonable pollution, impairment or destruction;" and, (2) intervention pursuant to Section 22a-19. Only Section 22a-19 intervention will be discussed in this article.
On October 1, 2013, Public Act No. 13-186 (entitled "An Act Concerning Intervention In Permit Proceedings Pursuant To The Environmental Protection Act of 1971") goes into effect. Public Act 13-186 codifies the Connecticut Supreme Court's 2002 decision in Nizzardo v. State Traffic Commission by setting forth the requirements for verified pleadings by parties seeking to intervene in a proceeding on, or judicial review of, conduct that could harm Connecticut's natural resources.
In Nizzardo, the Connecticut Supreme Court determined that General Statutes § 22a–19(a) permits a party to intervene in an administrative proceeding to raise environmental issues when two conditions are met. First, Section 22a–19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceedings into which the party seeks to intervene. Second, in order to qualify as a verified pleading under Section 22a–19, a petition must contain specific factual allegations setting forth the environmental issue that the intervenor intends to raise.
In Nizzardo, the plaintiff's request to intervene was framed in the broad language of Section 22a-19. The plaintiff alleged only that the application at issue concerned "an administrative proceeding which involves conduct which is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, wildlife or other natural resources of the State...." The plaintiff provided no specific factual allegations relating to his environmental concerns. After analyzing the use of the terms "verified" and "pleading" in Section 22a-19's requirement of a submission of a "verified pleading," the Nizzardo Court concluded that the plaintiff's request for intervention was fatally deficient. According to the Nizzardo Court, the requirement that intervention petitions under Section 22a-19 allege facts setting forth the environmental issue(s) that the intervenor intends to raise ensures that the agency in question will have the ability to determine upon a review of the petition whether the agency properly has jurisdiction over the environmental issue(s).
Section 22a-19(a), now 22a-19(a)(1), provides as follows: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
Public Act 13-186 adds the following subsection (2) to Section 22a-19(a): "The verified pleading shall contain specific factual allegations setting forth the nature of the alleged unreasonable pollution, impairment or destruction of the public trust in air, water or other natural resources of the state and should be sufficient to allow the reviewing authority to determine from the verified pleading whether the intervention implicates an issue within the reviewing authority's jurisdiction. For purposes of this section, 'reviewing authority' means the board, commission or other decision-making authority in any administrative, licensing or other proceeding or the court in any judicial review."
The enactment of Public Act 13-186 provides an opportunity to briefly review some of the guiding principles regarding intervention pursuant to Section 22a-19.
First, by its terms, Section 22a-19 specifically determines both (1) the parties that may intervene and (2) the proceedings into which those parties may intervene. As the Connecticut Supreme Court has noted, under both these prongs, the General Assembly employed "broad and all-inclusive" language. Consequently, the Connecticut Supreme Court has interpreted Section 22a-19's language as indicating "an intention to allow the broadest possible range of parties to intervene in an expansive spectrum of proceedings."