Attorney General's Opinion
Attorney General, Richard Blumenthal
December 10, 2001
Mr. Donal C. O'Brien, Jr.
Council on Environmental Quality
79 Elm Street
Hartford, CT 06106
Dear Mr. O'Brien:
On behalf of the Council of Environmental Quality ["CEQ"] you sought this office’s formal opinion as to a number of questions regarding the Connecticut Environmental Policy Act. ["Policy Act"]
In your first question you ask to what extent a sponsoring agency can change the plans or mitigation measures after an environmental impact evaluation (EIE) or finding of no significant impact (FONSI) has been adopted and the EIE or FONSI has been approved by OPM. The Connecticut Supreme Court has ruled that the "legislature expressed an intent that an impact statement be prepared whenever there is a reasonable possibility that a state action might have a detrimental effect on the environment." Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 67 (1981). Thus, if there is a reasonable possibility that the change in plans or mitigation might have a detrimental effect on the environment, a new or revised EIE or FONSI should be prepared.
Within your first question you further ask whether the Office of Policy and Management ["OPM"] or any other state agency has responsibility for determining violations of the Policy Act. OPM receives all EIE's and comments and makes a written determination whether the EIE satisfies the Policy Act. Conn. Gen. Stat. § 22a-1e. OPM has the authority to administer the Policy Act. There is no state agency specifically designated with authority to enforce the law regarding violations of the Policy Act.
In your second question you ask whether there is a state agency to which citizens can turn if a sponsoring agency initiates a project without completing an EIE or FONSI. As your experience indicates, citizens can turn to the CEQ, pursuant to Conn. Gen. Stat. § 22a-13. CEQ is empowered to receive and investigate such complaints. You further ask whether there are any other agencies to which the complaint can be referred. If the activity of the sponsoring agency requires any DEP permit, CEQ can refer the matter to DEP to determine if there are any violations of the regulatory programs which the DEP administers.
You ask if there is any action available to CEQ if a sponsoring agency fails to undertake or complete its EIE/FONSI before initiating the action. In the course of CEQ’s investigation of the complaint, CEQ can inquire of the sponsoring agency the reasons for its conduct. CEQ can inquire of DEP whether the action implicates a violation of any environmental program which DEP administers. If a violation is found, CEQ may take action as discussed below.
Your final question asks whether CEQ is authorized to initiate a lawsuit, working through our office, if a sponsoring agency fails to complete the EIE/FONSI process before undertaking the action. Pursuant to Section 22a-16 of the General Statutes within the Connecticut Environmental Protection Act ["Protection Act"], essentially any person or legal entity may maintain an action for declaratory and 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." Although CEQ is not specifically enumerated, the statute is broad enough to include CEQ as an entity which may sue to enforce the Protection Act in court. The Connecticut Supreme Court has held that the Protection Act grants standing to a plaintiff to enforce violations of the Policy Act. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 65-66 (1981). In accordance with Conn. Gen. Stat. § 3-125, the Attorney General’s Office provides legal services, as appropriate, to state boards, which can include bringing an action to enforce the Protection Act in court, where warranted. If such an action is brought, generally, the plaintiff agency would be responsible for costs associated with the litigation, such as experts, transcripts and copying costs. There could also be issues which could require the use of outside counsel.
I trust this answers your questions.
Very truly yours,
Janet P. Brooks
Assistant Attorney General