Letter: Protect Environmental Protection Act

The Connecticut Law Tribune



To The Editor:

This is in response to the "Advice of Counsel" article, "Too Much of a Good Thing?" published in the May 19, 2003, edition of The Connecticut Law Tribune.

The Connecticut Environmental Protection Act (Section 22a-15, et. seq.) was drafted to give citizens the power to protect Connecticut's natural resources when environmental or other agencies fail to do so. The Protection Act addresses the problem of administrative agencies that are either unwilling or were not granted the power to protect the air, water and other state resources from unreasonable pollution, impairment or destruction.

In a detailed, extensive and exhaustive manner, the legislature set forth the proper relationships between the court and the relevant agencies. While the court may, and should in appropriate instances, give the agency the first opportunity to address an environmental problem, it is, and must be, the court that is given the ultimate authority to protect the public trust.

Given that ineffectual agency action was the reason for the statute, the recommendation made in CLT's May 19 column would eviscerate the statute as a meaningful check on agency inaction or lack of delegated power. The column's suggestion of giving agencies the last say, subject only to limited review for an abuse of discretion, turns the Protection Act on its head, making supreme those very agencies upon whom the Protection Act was meant to act as a check.

The Protection Act has been used successfully for more than three decades to selectively protect important public trust resources, and assure that Connecticut remains a safe and healthy place to raise a family. Fears put forth in the May 19 "Advice of Counsel," like suggesting the court may consider a proper claim one that merely alleges "that there will be energy burned up by the trucks hauling the waste away" from a demolition site, have yet to materialize.

There have been important resources protected by [22a-15] since its inception. The Milford Point wildlife sanctuary, now part of the Stewart McKinney National Wildlife Preserve, would now be condos if not for the Protection Act. A critical floodplain forest along the Connecticut River still stands to protect downstream landowners from floods because of the Act. A unique set of more than 20 so-called "vernal" or seasonal pools ¿ each supporting a different interdependent world of tiny creatures ¿ was saved from the bulldozer. (In that case, thanks to the Protection Act, an alternative upland site was approved and a far more environmentally compatible development project was allowed to move forward.) Despite its imaginative scenarios of future disasters, the CLT column fails to cite any instances in the statute's 30 years of operation where a judge has blocked a worthwhile project on questionable grounds.

Indeed, the initial opponents of the Protection Act expressed the same fears during the legislative debate. The legislature chose instead to create a carefully balanced system that allows citizens and organizations standing to protect the public trust. We must be guided by a disciplined and critical review of 30 years of experience under the statute rather than groundless fears that have yet to materialize.

Far from privileging baseless suits, a recent court decision has actually weakened the Act in a way its drafters could never have anticipated. In the Waterbury v. Washington decision, the court seems to hold that existing DEP stream flow regulations, which DEP staff testified were inadequate to protect the ecology of the Shepaug River, must govern the court's determination as to what constitutes unreasonable pollution or impairment. The drafters of the Protection Act did not envision such reasoning, which, if taken to its logical conclusion, will leave the public trust in the environment entirely in the hands of agencies.

The Protection Act ¿ the last resort to protect the public trust in the environment when agency inaction fails to do so ¿ is precariously close to being interpreted out of existence.

The fears expressed by the CLT column will prove as unfounded in the future as they have for the past thirty years. The legislature must act now, not to diminish, but to reassert the primacy of the public trust in the environment and insure that the Protection Act remains available to protect the state's environmental resources.

Curt Johnson
Staff Attorney
Connecticut Fund for the Environment