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NOT ANOTHER POWER PLANT v. CONNECTICUT SITING COUNCIL—

CONCURRENCE AND DISSENT

ECKER, J., with whom D’AURIA, J., joins, concurring

in part and dissenting in part. I agree with parts I, II A,

and II B of the majority opinion, in which the majority

concludes that the plaintiff, Not Another Power Plant,

has standing to bring this appeal and did not waive its

claim that the trial court incorrectly determined that

the refusal of the named defendant, the Connecticut

Siting Council (council), to consider the environmental

impact of the future gas pipeline was legally erroneous,

and that the council proceeded under the legally erroneous belief that the relevant provisions of the Public

Utility Environmental Standards Act (act), General Statutes § 16-50g et seq., precluded it from considering the

environmental impact of the future gas pipeline when

balancing the public benefit of the proposed electric

generating facility against the harm that it will cause

to the environment. Unlike the majority, however, I

believe that this latter holding requires us to reverse

the judgment of the trial court and to remand the present case to that court with direction to remand it to

the council to reconsider its approval of the application

filed by the defendant NTE Connecticut, LLC (NTE),

in light of its discretion to consider the potential environmental impact of the future gas pipeline. For that

reason, I respectfully dissent in part.

The majority correctly observes that General Statutes

§ 4-183 (j) (6) requires a court to affirm an agency decision unless it finds ‘‘ ‘that substantial rights of the person

appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are

. . . arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of discretion.’ ’’1 Part II B of the majority opinion. My agreement

with the majority opinion, as I stated, also includes the

conclusion that the council erroneously construed the

act to prohibit it from considering the potential environmental impact of the gas pipeline in the underlying

proceedings. That is, the council reached a decision in

this matter while laboring under the legally mistaken

understanding that it could not exercise its discretion

to deny or defer consideration of the pending application on the basis of the cumulative environmental

impact of the electric generating facility and the future

gas pipeline on which the operation of that facility will

depend. To the contrary, as the majority concludes,

‘‘the act did not prohibit the council from considering

an interdependent facility that does not yet exist

[namely, the pipeline] when balancing the public benefit

that will be provided by a proposed facility against the

harm that it will cause to the environment.’’ Id.

My agreement with the majority ends there because,
in my view, the council’s ‘‘failure to exercise its discretion constituted an abuse of discretion.’’ State v. Martin,

201 Conn. 74, 88, 513 A.2d 116 (1986); see also Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586, 609,

181 A.3d 550 (2018) (remand for hearing was appropriate ‘‘because the trial court improperly failed to exercise its discretion’’ (internal quotation marks omitted));

Costello v. Goldstein & Peck, P.C., 321 Conn. 244, 256,

137 A.3d 748 (2016) (‘‘the court’s failure to recognize

its authority to act constituted an abuse of discretion’’).

When an administrative agency does not recognize or

exercise its discretion due to a misinterpretation of a

rule or statute, it abuses that discretion. In other words,

an agency, ‘‘vested with discretion, abuses that discretion when it behaves as if it has no other choice than

the one it has taken, or when it makes a decision for

which there is not adequate support.’’ Bennington

Housing Authority v. Bush, 182 Vt. 133, 139, 933 A.2d

207 (2007); see also Fisher v. Commissioner for Internal Revenue, 45 F.3d 396, 397 (10th Cir. 1995) (tax

commissioner ‘‘failed to demonstrate that she had exercised her discretion and thereby abused that discretion’’); United States ex rel. Adel v. Shaughnessy, 183

F.2d 371, 372 (2d Cir. 1950) (‘‘[t]he courts cannot review

the exercise of such discretion; they can interfere only

when there has been a clear abuse of discretion or a

clear failure to exercise discretion’’ (footnote omitted));

Litterer v. Judge, 644 N.W.2d 357, 362 (Iowa 2002) (‘‘an

agency that has authority to act but fails to exercise

that authority based [on] a false belief that there is

no such authority abuses its discretion’’); Clark Fork

Coalition v. Dept. of Environmental Quality, 347 Mont.

197, 209, 197 P.3d 482 (2008) (‘‘when an agency, because

of a misinterpretation of its rule, does not exercise its

discretion it abuses its discretion’’); 3 H. Koch & R.

Murphy, Administrative Law and Practice (3d Ed. 2021)

§ 9:27 [4] (‘‘[f]ailure to exercise discretion might be an

abuse of discretion’’); 73A C.J.S. 322, Public Administrative Law and Procedure § 416 (2004) (‘‘[a]n agency that

has authority to act but fails to exercise that authority

based upon a false belief that there is no such authority

abuses its discretion’’).

The majority concludes that, notwithstanding the

council’s failure to exercise its discretion, the council

did not arbitrarily and capriciously refuse to consider

the potential environmental impact of the gas pipeline

because that impact will be considered in a future proceeding at which ‘‘the council must find either that the

pipeline will have no significant adverse environmental

impact or that its impact, considered together with the

impact of other existing facilities, is outweighed by the

public benefit that it will provide.’’ Part II C of the

majority opinion. It is true that the council could have

arrived at the very same result in the proper exercise

of its discretion. But that is not the standard by which

error is measured in this context. Although the council
could have arrived at the same conclusion had it been

aware of its discretionary authority, and nonetheless

decided to defer consideration of the pipeline’s environmental impact until a future proceeding on an application seeking a certificate for that pipeline, it also could

have decided to consider the impact of the two interrelated projects in a single proceeding. That is the point.

The council had the discretion to choose either course,

but it was not aware of its discretion and erroneously

believed that it had no choice.

We do not know what the council would have chosen

to do if it had exercised its discretion, and we must

remand the matter to the council so that it may decide

whether to consider the environmental impact of the

future gas pipeline when weighing the public benefit

of the proposed electric generating facility against its

probable environmental impact under § 16-50g.2 See

Miami Nation of Indians of Indiana, Inc. v. United

States Dept. of the Interior, 255 F.3d 342, 350 (7th Cir.

2001) (administrative agency’s ‘‘[f]ailure to exercise discretion, however uncanalized that discretion, is an

abuse of discretion,’’ and ‘‘the remedy is to remand for

the exercise of that discretion’’), cert. denied sub nom.

Miami Nation of Indians of Indiana, Inc. v. Norton,

534 U.S. 1129, 122 S. Ct. 1067, 151 L. Ed. 2d 970 (2002);

United States ex rel. Adel v. Shaughnessy, supra, 183

F.2d 372 n.3 (‘‘[i]n such a case, the court can do no

more than to require that the discretion be exercised,

one way or the other’’); Davenport v. Newcomb, 820

N.W.2d 882, 892 (Iowa App. 2012) (‘‘[w]hen there is error

based on an agency’s failure to exercise discretion, the

remedy is to reverse and remand to the agency for

consideration’’). Accordingly, I would reverse the judgment of the trial court with direction to remand the

case to the council for further proceedings consistent

with this opinion.

1 As the majority states, de novo review is appropriate here because the

agency’s interpretation of the relevant statutory provisions is not ‘‘timetested . . . .’’ (Internal quotation marks omitted.) Part II B of the majority opinion.

2 The majority acknowledges that, ‘‘ordinarily, an agency’s failure to

exercise its discretion because of a mistaken understanding of the law

constitutes an abuse of discretion.’’ Footnote 14 of the majority opinion. It

concludes nevertheless that a remand is not required under the specific

circumstances of the present case because ‘‘the result [of a remand] would

be the functional equivalent of the situation as it now stands: the cumulative

environmental impact of the electric generating facility and the pipeline

would be considered during the proceedings on the pipeline unless it were

determined that the pipeline will have no substantial adverse environmental

effect and, if the pipeline were not approved, NTE would be unable to

complete the electric generating plant and the site would be restored.’’ Id.

Perhaps, but perhaps not. As the majority observes, the council would have

various options on remand, and its selection among those options (or its

choice of some other option that we have not identified) may, as a practical

or legal matter, significantly change ‘‘the situation as it now stands’’ in one

way or another. Id. Timing and sequencing can matter a great deal in matters

of regulatory approval. If that were not true, then the parties in the present

case presumably would not have a dispute over the outcome of this appeal

because it would make no difference to them whether the council’s review

of the cumulative environmental impact comes now or in a future proceeding. The bottom line is that the council, and not this court, possesses the

information, the expertise, and the legal obligation to exercise its best
judgment based on its own careful assessment of all of the pertinent considerations permitted by law—including, if it so chooses, the factor that the

council mistakenly believed was off limits in the prior proceeding, namely,

the environmental impact of the future gas pipeline. This court is ill-equipped

to hypothesize what the council will do on remand or to speculate whether

the consequences that flow from the agency’s future determination, after

remand, will be the ‘‘substantial equivalent’’ of the situation ‘‘as it now

stands’’ pursuant to a legally erroneous prior decision. Id.; cf. Commissioner

of Emergency Services & Public Protection v. Freedom of Information

Commission, 330 Conn. 372, 379, 194 A.3d 759 (2018) (‘‘Under the [Uniform

Administrative Procedure Act], it is [not] the function . . . of this court to

retry the case or to substitute its judgment for that of the administrative

agency. . . . Even for conclusions of law, [t]he court’s ultimate duty is

only to decide whether, in light of the evidence, the [agency] has acted

unreasonably, arbitrarily, illegally, or in abuse of its discretion.’’ (Internal

quotation marks omitted.))