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CONNECTICUT ENERGY MARKETERS ASSN. v. DEPT. OF ENERGY &

ENVIRONMENTAL PROTECTION—DISSENT

EVELEIGH, J., dissenting. I respectfully dissent from

the majority opinion, which affirms the judgment of the

trial court dismissing the claims brought by the plaintiff,

Connecticut Energy Marketers Association, against the

defendants, the Department of Energy and Environmental Protection (department) and the Public Utilities Regulatory Authority (authority). First, respectfully, in my

view, this is not an issue of sovereign immunity and

the case should not have been dismissed on that basis.

If, in fact, the case did not state a cause of action, as

held by the trial court, the matter should have been

subject to a motion to strike for failure to state a cause

of action. I would return the matter to the trial court

for further consideration on a motion to strike. Second,

in my view, this case does state a cause of action. The

trial court held that an environmental impact evaluation

was only required ‘‘for activities funded by or proposed

to be undertaken by the state. The [2013 Comprehensive

Energy Strategy for Connecticut (comprehensive

energy strategy) issued by the department] was neither.’’ The court further held that ‘‘[b]ecause approval

of the [comprehensive energy strategy] is not an action

which may significantly affect the environment, as that

phrase is defined in [General Statutes] §§ 22a-1b (c)

and 22a-1c, the plaintiff has failed to state a claim under

the [Environmental Policy Act (policy act), General

Statutes § 22a-1 et seq.].’’ Section 22a-1a-1 (2) of the

Regulations of Connecticut State Agencies, however,

defines ‘‘action’’ as, inter alia, ‘‘other proposed activity

for which an agency exercises judgment or discretion

as to the propriety of that action.’’ This language is

derived from § 22a-1b (c), which requires an agency to

make a detailed written evaluation of any environmental impact ‘‘before deciding whether to undertake or

approve such action.’’1 Thus, the agency’s approval of

an activity or sequence of proposed activities constitutes an ‘‘action’’ under the regulations if the activity

may significantly affect the environment. Therefore, in

my opinion, the present case does state a cause of

action and should not have been dismissed. Rather, I

would remand the matterto the trial court for a determination of whether the activity may significantly affect

the environment. Therefore, I respectfully dissent.

I

I will notrepeat the facts and procedural history since

they are accurately reflected in the majority opinion. I

will only reference the facts as they may relate to this

dissenting opinion.

The trial court held that since the complaint did not

state a cause of action underthe policy act, ‘‘[t]herefore,

the state’s sovereign immunity remains undisturbed,
and the court lacks subject matter jurisdiction. Consequently, the plaintiff’s complaint is dismissed.’’ (Footnote omitted.) A determination of the trial court’s

subject matter jurisdiction presents a question of law.

Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265,

276, 105 A.3d 857 (2015). This court reviews de novo

a trial court’s ruling on a motion to dismiss. Id., 276–77.

‘‘[I]n determining whether a court has subject matter

jurisdiction, every presumption favoring jurisdiction

should be indulged.’’ (Internal quotation marks omitted.) Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 314 Conn. 433, 447, 102 A.3d 32 (2014).

The policy act is a supplement to the Connecticut

Environmental Protection Act, General Statutes § 22a14 et seq. Manchester Environmental Coalition v.

Stockton, 184 Conn. 51, 66, 441 A.2d 68 (1981), overruled

in part on other grounds by Waterbury v. Washington,

260 Conn. 506, 556, 800 A.2d 110 (2002). The policy act

contains the procedural requirements for ensuring that

state actions receive a ‘‘thoughtful and meaningful consideration of environmental factors.’’ Id., 68. It provides

in relevant part that agencies responsible for the primary recommendation or initiation of actions that may

significantly affect the environment make a written

evaluation of the environmental consequences of the

proposed action. See General Statutes § 22a-1b (c).

‘‘[A]n impact statementis required wheneverthe project

will arguably damage the environment.’’ Manchester

Environmental Coalition v. Stockton, supra, 67. ‘‘The

determination of whether an action may significantly

affect the environment is a legal issue, involving the

interpretation of [§§ 22a-1b and 22a-1c], which can be

decided by a court.’’(Internal quotation marks omitted.)

Id., 68 n.20.

The complaint in the present case asserts jurisdiction

‘‘pursuant to [General Statutes] § 22a-16.’’ The defendants have conceded that this provision confers standing on any person in a case brought under the policy

act, irrespective of whether such person is classically

aggrieved for the purpose of standing. As we stated

in Manchester Environmental Coalition v. Stockton,

supra, 184 Conn. 64 n.15,the policy act does ‘‘notrequire

aggrievement as a prerequisite to challenging the preparation, or lack of preparation, of an impact statement.’’

Because the policy act is ‘‘ ‘[i]n furtherance of and pursuant to’ ’’ §§ 22a-1 and 22a-15, and because it was

intended to be supplemental to the Connecticut Environmental Protection Act, standing to raise the procedural issues governed by the policy act is conferred by

§ 22a-16, and it is granted to the same persons on whom

standing is conferred to raise substantive issues under

the Connecticut Environmental Protection Act. (Internal quotation marks omitted.) Id., 65–66. That is, ‘‘ ‘any

person’ ’’ has standing to bring an action under the

policy act to challenge a failure to prepare an environmental impact evaluation. Id., 57. By conferring stand-
ing on ‘‘any person’’ to challenge the failure of an agency

to prepare an impact statement, § 22a-16 stands as an

explicit waiver of sovereign immunity with respect to

such actions. In my view, therefore, it was incorrect

for the trial court to grant the motion to dismiss on the

basis of sovereign immunity. I would, therefore,remand

the case to the trial court in orderto considerthe matter

under the proper standard.

Although the defendants conceded in the trial court

that § 22a-16 waives sovereign immunity for a policy act

violation, they contended, nonetheless, that sovereign

immunity is waived only for claims properly cognizable

under the policy act, and not for claims that fail to state

a legally sufficient policy act claim. Thus, they styled

their motions as motions to dismiss, challenging the

jurisdiction of the trial court on sovereign immunity

grounds. The gravamen of the motions, however, are

assertions that the complaint fails to state a claim under

the policy act on which relief can be granted, which is

properly the subject of a motion to strike.

In reviewing the motion to strike, a court should

‘‘construe the complaint in the manner most favorable

to sustaining its legal sufficiency.’’ (Internal quotation

marks omitted.) Sullivan v. Lake Compounce Theme

Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). If

the facts set forth in the complaint ‘‘would support a

cause of action, the motion to strike must be denied.’’

(Internal quotation marks omitted.) Id., 117–18. Moreover, the ‘‘pleadings must be construed broadly and

realistically, rather than narrowly and technically.’’

(Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309

Conn. 342, 350, 71 A.3d 480 (2013). Therefore, the policy

act specifically waives sovereign immunity. The question is not one of jurisdiction, but rather whether the

complaint stated a cause of action.

II

In my view, the complaint does state a claim under

the policy act on which relief can be granted. The standard of review of a trial court’s conclusions on a matter

of law is de novo. Id. Section 22a-1b (c) provides in

relevant part that ‘‘[e]ach state department, institution

or agency responsible for the primary recommendation

or initiation of actions which may significantly affect

the environment shall in the case of each such proposed

action make a detailed written evaluation of its environmental impact before deciding whether to undertake

or approve such action . . . .’’ Section 22a-1c, in turn,

defines ‘‘ ‘actions which may significantly affect the

environment’ ’’ as ‘‘individual activities or a sequence

of planned activities proposed to be undertaken by state

departments, institutions or agencies, or funded in

whole or in part by the state, which could have a major

impact on the state’s land, water, air . . . or other environmental resources, or could serve short term to the
disadvantage of long term environmental goals. . . .’’

The majority holds that ‘‘for purposes of § 22a-1b (c),

activities must both (1) be ‘proposed to be undertaken

by state departments, institutions or agencies, orfunded

in whole orin part by the state,’ and (2) potentially ‘have

a major impact on the state’s’ environmental resources.

The most natural reading of the phrase ‘proposed to

be undertaken by an agency or agencies’ is that the

proposed or initiated activity that will allegedly have a

major impact on the state’s environment ultimately

must ‘be undertaken by an agency or agencies.’ . . .

Thus, activities that are proposed by state actors, but

which are ultimately performed by private entities, do

not constitute ‘actions which may significantly affect

the environment’ for purposes of § 22a-1b (c).’’(Citation

omitted; emphasis omitted.) While I concede that the

majority’s interpretation of the statute is a reasonable

one, I find equally persuasive the interpretation of the

plaintiff that once the state engages in an action that

may potentially affect the environment, said action will

require an environmental impact evaluation. The definition of the terms ‘‘action’’ and ‘‘proposed or initiated

activity’’ are therefore crucial to the inquiry. In other

words, does the proposed orinitiated activity ultimately

have to be performed by a state agency and thus, necessarily meet the requirements of the statute, or is it

enough to meet those requirements that the state initiates the mechanism by which the acts are ultimately

performed by a private entity? I would conclude that,

in light of the two reasonable interpretations,the statute

is ambiguous. Therefore, I would resort to extratextual

sources, including the regulations, which is appropriate

under General Statutes § 1-2z. Although not expressly

stating in the opinion that the statute is ambiguous,

the majority’s reliance upon legislative history and the

regulations would suggest that it also finds the statute

to be ambiguous.

Shortly after the policy act was enacted, the department promulgated regulations that drew upon §§ 22a1b (c) and 22a-1c to define in greater depth the type of

‘‘actions which may significantly affect the environment.’’ General Statutes § 22a-1b (c). I respectfully disagree with the majority’s position that ‘‘[t]hus, activities

that are proposed by state actors, but which are ultimately performed by private entities, do not constitute

‘actions which may significantly affect the environment’

for purposes of § 22a-1b (c).’’ If that were the case,

there would have been no need forthe phrase ‘‘activities

proposed to be undertaken by state [actors] . . . .’’

General Statutes § 22a-1c. The legislature could have

merely stated that if the state is not paying for the

project in whole or in part, any other actions of state

departments are not actions which affect the environment. Instead, the legislature used the additional phrase

of ‘‘activities proposed to be undertaken by state

[actors] . . . .’’ General Statutes § 22a-1c. If the inter-
pretation of the statute is the one proposed by the

majority, this statutory language is superfluous

because, according to both the majority and the trial

court, unless the activity is funded in whole or in part

by the state, it does not affect the environment and,

therefore, an environmental impact evaluation is not

necessary. The use of the word ‘‘or’’ in § 22a-1c belies

this interpretation. Rather, as I view the relevant language in § 22a-1c, the definition of ‘‘ ‘actions which may

significantly affect the environment’ ’’ should be read

to include those projects either funded in whole or in

part by the state, orthose in which state actors proposed

action. The department’s regulatory definition, is set

forth in § 22a-1a-1 (2) of the regulations, which provides

in relevant part that ‘‘[a]ction means an individual activity or a sequence of planned activities initiated or proposed to be undertaken by an agency or agencies, or

funded in whole or in part by the state. . . .’’ Thus,

under the applicable regulatory definition, an ‘‘action’’

is an ‘‘activity’’ or ‘‘a sequence of planned activities’’

that are ‘‘initiated’’ or ‘‘funded’’ by an agency. Regs.,

Conn. State Agencies § 22a-1a-1 (2). The ‘‘proposed to

be undertaken’’ language in § 22a-1a-1 (2) of the regulations is taken from § 22a-1c. The ‘‘initiated’’ language

in § 22a-1a-1 (2) of the regulations is taken from the

‘‘initiation of actions’’ language of § 22a-1b (c).

Section 22a-1a-1 (2) of the regulations also includes

within the applicable definition of ‘‘action’’ any ‘‘other

proposed activity for which an agency exercises judgment or discretion as to the propriety of that action.’’

This language is derived from General Statutes § 22a1b (c), which requires an agency to make a detailed

written evaluation of environmental impact ‘‘before

deciding whetherto undertake or approve such action.’’

Thus, an agency’s approval of an activity or sequence

of proposed activities constitutes an ‘‘action’’ under

the regulations if the activity may significantly affect

the environment.

The essence of an ‘‘action,’’ therefore, is an activity

or sequence of planned activities that may have a significant impact on the environment. But the activity or

sequence of activities must be triggered by an act of

a state department, institution or agency. Under the

department’s regulations, activities are triggered by

state action when an agency proposes the activity or

sequence of activities, when an agency initiates the

activities by an authorizing act of approval or by other

acts of implementation, or when an agency funds the

activity, in whole or in part. See Regs., Conn. State

Agencies § 22a-1a-1 (2).

The majority claims that such a reading ‘‘would both

require the insertion of words such as ‘to be undertaken

by any person or entity’ into § 22a-1a-1 (2) of the regulations and General Statutes § 22a-1c and render the

existing phrase ‘to be undertaken’ superfluous.’’ I
respectfully disagree. In my view,the regulations inform

the meaning of the word action and the activity necessary for the requirement of an environmental impact

evaluation to be instituted. If the state agency is the

entity proposing the plan and exercising judgment over

the plan, the regulations make it clear that an environmental impact evaluation should be completed regardless of what entity, public or private, ends up paying

for the project. I further disagree with the majority’s

position that § 22a-1a-1 (2) of the regulations ‘‘applies

only to activities that will be undertaken or funded

by a state actor.’’ The majority further concludes that

‘‘because the activities that the plaintiff alleges will

cause major pollution will be undertaken by private

parties, the defendants’ activities in proposing and

approving those activities do not fall within this definition regardless of whether they are discretionary or

ministerial.’’ Thus, my disagreement with the majority

is regarding the ‘‘activities proposed to be undertaken

by [the] state’’ language in General Statutes § 22a-1c.

The majority views the activities as the actual project,

whereas, in my view, the activities are the review and

preparation of the plan upon which the ultimate project

may be commenced. Indeed, as I have suggested previously in this opinion, if a state agency is involved in

the project it obviously is either funded in whole or in

part by the state. The majority’s interpretation renders

the ‘‘activities proposed to be undertaken by [the] state’’

language in § 22a-1c superfluous.

Moreover, I do not believe that the department’s regulations run afoul of our jurisprudence by extending

beyond the bounds of the statute. Rather, in my view,

the regulations promulgated by the department inform

the meanings of the relevant statutory provisions. Otherwise, the phrase ‘‘individual activities or a sequence

of planned activities proposed to be undertaken by state

departments, institutions or agencies’’ in General Statutes § 22a-1c becomes irrelevant, because all actions

of the state are funded in whole or in part by the state.

The language is superfluous unless ‘‘activities’’ and

‘‘sequence of planned activities’’ means the initiation

of a plan that may be carried out by either the state

or private entities. One of our fundamental rules of

statutory construction is that we should construe relevant provisions so as to give meaning and purpose to

every word in the statute. Respectfully, in my view, the

majority’s interpretation of this environmental statute

does not adhere to that tenet.

The defendants are bound by validly enacted regulations in deciding whether to prepare an environmental

impact evaluation. ‘‘Administrative regulations have the

full force and effect of statutory law and are interpreted

using the same process as statutory construction,

namely, under the well established principles of . . .

§ 1-2z.’’ (Internal quotation marks omitted.) Sarrazin

v. Coastal, Inc., 311 Conn. 581, 603, 89 A.3d 841 (2014).
‘‘[R]egulations are presumed valid and, unless they are

shown to be inconsistent with the authorizing statute,

they have the force and effect of a statute.’’ Travelers

Ins.Co. v. Kulla, 216Conn. 390, 399, 579A.2d 525 (1990).

Because the term ‘‘initiated’’ is not defined in the

relevant statute or in the department’s regulations, it

is to be given its plain and ordinary meaning under

the rules of statutory construction. ‘‘In interpreting the

language of a statute, the words must be given their

plain and ordinary meaning and their natural and usual

sense unless the context indicates that a different meaning was intended.’’ (Internal quotation marks omitted.)

Blumenthal v. Barnes, 261 Conn. 434, 460 n.37, 804

A.2d 152 (2002).

The plain meaning of the word ‘‘initiate’’ is ‘‘to cause

or facilitate the beginning of’’ or ‘‘set going . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2011).

An entity initiates an activity, therefore, when it takes

action to set a process in motion.

All agency action, of course, is authorized or directed

in one way or another by the legislature. As echoed by

the trial court in the present case, ‘‘an administrative

agency possesses no inherent power. Its authority is

found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function.’’

(Internal quotation marks omitted.) Nizzardo v. State

Traffic Commission, 259 Conn. 131, 155, 788 A.2d 1158

(2002). Legislative directives, however, cannot usually

be implemented in the absence of discretionary determinations by the agencies. When an agency acts on its

legislative authority to authorize orimplement activities

that may have a significant impact on the environment,

the authorization or implementation of such activities

is an ‘‘action’’ under the policy act and its implementing regulations.

The state agency or department initiates an action

by providing the requisite authorization or approval of

the activity or by engaging in other acts of implementation necessary for the activity or activities to be undertaken. If the activity or activities cannot be undertaken

in the absence of such agency approval or implementation, the acts of approval and implementation are, in

my view, acts of initiation.

Likewise, the word ‘‘proposed’’ is not defined in the

statute or in the department’s regulations. The plain

meaning of the word ‘‘propose,’’ however, is ‘‘to form

or put forward a plan or intention’’ or ‘‘to set forth

for acceptance or rejection . . . .’’ Merriam-Webster’s

Collegiate Dictionary, supra. A proposal, therefore, is

in the nature of a recommendation. Indeed, the department’s regulations indicate that the ‘‘agency responsible

for the primary recommendation or initiation of actions

is considered [the] sponsoring agency . . . .’’ Regs.,

Conn. State Agencies § 22a-1a-2. The word ‘‘propose’’
in General Statutes § 22a-1c does not mean to mandate

or require. A ‘‘proposal’’ is the ‘‘act of putting forward or

stating something for consideration . . . .’’ Webster’s

Collegiate Dictionary, supra. As aptly stated in New

Haven v. Pac, Superior Court, judicial district of New

Haven, Docket No. CV-83-0279985-S (December 16,

1991) (5 Conn. L. Rptr. 356, 360), ‘‘[a]n environmental

impact statement is required from the state when it

initiates or recommends the action; the state must be

the proponent.’’ (Emphasis in original.) Moreover, by

its very nature, a proposal is a recommendation made

to another person or entity. In the context of the regulations quoted previously in this opinion, it may be made

by the proponent to another agency or instrumentality

of government, to the public, to the governor, or to the

legislature. There is nothing in the policy act to suggest

that agency proposals or recommendations made to the

legislature are exempt from policy act coverage. As long

as the state agency’s recommendation to the legislature

requests authority to initiate, approve, or implement an

activity or activities that may significantly affect the

environment, it is a recommendation or proposal to

undertake or initiate an ‘‘action’’ within the meaning of

the policy act.

We have construed environmental protection statutes

liberally. See Keeney v. Old Saybrook, 237 Conn. 135,

157, 676 A.2d 795 (1996). Such statutes are ‘‘remedial in

nature and should be liberally construed to accomplish

their purpose.’’ Manchester Environmental Coalition

v. Stockton, supra, 184 Conn. 57. The purpose of the

policy act cannot be fulfilled if activities that will

adversely affect the environment are attributed to the

legislature, and not to the agencies that propose them

forlegislative approval. Thus, when an agency proposes

an activity or sequence of planned activities that may

significantly affect the environment, it must perform

an environmental impact evaluation to accompany the

proposal. ‘‘An environmental impact evaluation shall be

prepared as close as possible to the time an agency

proposes an action. The evaluation shall be prepared

early enough so that it can practically serve as an

important contribution to the decision-making process

. . . .’’ Regs., Conn. State Agencies § 22a-1a-7 (b).

The trial court’s memorandum of decision in the present case contains no discussion of what constitutes an

action by an administrative agency or executive department that may ‘‘significantly affect the environment.’’

Instead, the trial court focused on the act of the legislature approving the comprehensive energy strategy. It

held that such legislative approval is not an ‘‘action’’

under the policy act. In substance, the trial court concluded that, ‘‘[u]ltimately,the [p]olicy [a]ct only requires

an [environmental impact evaluation] for activities

funded by or proposed to be undertaken by the state.

The [comprehensive energy strategy] was neither.

Because approval of the [comprehensive energy strat-
egy] is not an action which may significantly affect the

environment, as that phrase is defined in §§ 22a-1b (c)

and 22a-1c, the plaintiff has failed to state a claim under

the [p]olicy [a]ct.’’ The discussion of the trial court

preceding this holding suggests that the department,

through the authority, played no role in formulating

and proposing a natural gas conversion energy strategy,

initiating the strategy through a series of discretionary

determinations, approving and modifying the expansion

plan, and issuing orders necessary for its implementation.According to the trial court, ‘‘the defendants simply

followed the legislative duties imposed upon them.’’

The trial court proceeds as if the department performed a series of ministerial duties directed by the

legislature with no authorization to make discretionary

determinations, especially determinations crucial to

whether a natural gas conversion plan would ever by

implemented. Implicit in the trial court’s holding is that

the broad statement of objectives enunciated by the

legislature could be translated into a concrete natural

gas conversion plan, and be implemented, in the

absence of discretionary determinations by an agency

or agencies. I disagree with this interpretation. The

department conceived of and implemented the natural

gas conversion program in a way that is different only

in form, but not in substance, from the way that administrative agencies normally formulate and implement programs authored by the legislature. Typically, the

legislature devises a program by stating broad goals,

objectives, and strategies, and it delegates to one or

more agencies the authority to fashion a program that

is consistent with the legislative objectives. The authority of the agency to implement the program is usually

contained in the same legislation. Here, the legislature

proceeded along the same path, but it did so in two

separate pieces of legislation rather than one. In 2011,

the legislature delegated to the department the authority to: (1) develop a plan setting forth the essential

elements of a program to convert energy users to natural gas; and (2) recommend legislative and administrative actions to implement the plan. See Public Acts

2011, No. 11-80, § 51; see also General Statutes § 16a3d. The department developed a natural gas conversion

plan with specific elements and recommendation for

implementation. In 2013, the legislature approved the

department’s plan and the administrative steps proposed to implement it, and it delegated to the department the authority to implement the plan as proposed.

See Public Acts 2013, No. 13-298, § 51 (c); see also

General Statutes § 16-19ww (d). Although the legislature proceeded in two steps ratherthan one, it nevertheless delegated to the department the authority to make

discretionary determinations. Without these determinations, the program would neither have been developed

nor would it have been implemented. I disagree with

the trial court’s analysis because, in my view, the trial
court focused on the acts of the legislature and not on

the discretionary determinations and other implementation activities of the department. The conversions to

natural gas that are at the heart of this case could

not have been implemented without the department’s

actions. Therefore, I would conclude, unlike the trial

court, that the department initiated the proposed plan

and had wide discretion in both the acceptance and

administration of the plan. Consequently, the actions

of the department were far from ministerial and should

have required the court to evaluate any potential impact

on the environment.

The trial court classified the department’s actions as

ministerial acts of adherence to strict and narrowly

tailored legislative commands. In my view, the record

shows otherwise. The legislature had neitherthe technical expertise nor the inclination to make the types of

determinations it delegated to the department. As is

customary, it relied on the expertise of the administrative agencies to make the determinations necessary to

implement a natural gas conversion program. The determinations of the department, acting through the authority, were essential prerequisites to implementation of

the plan and, as such, they were acts of ‘‘initiation’’

within the meaning of § 22a-1b (c).

The majority concludes that ‘‘[i]n the present case,

the defendants have not proposed to undertake or to

fund the activities that the plaintiff alleges will have a

major impact on the state’s environmental resources,

namely, the construction of new gas pipelines in the

state resulting in the increased discharge of methane

gas into the atmosphere. Rather, these activities will

be undertaken and funded by the local distribution companies, which are private entities. Accordingly, we conclude that the trial court properly granted the

defendants’ motions to dismiss on the ground that the

requirement of an environmental impact evaluation in

§ 22a-1b (c) does not apply to their activities in the

present case.’’ I respectfully disagree. The difference in

opinion is that the majority reads the statute to require

that the state either undertake or fund the activities. I

am not sure how the word undertake is different from

the word funding because, in either event, the state is

going to pay for the project. In my view, the statute

requires an environmental impact evaluation where, as

here, the state has made a proposal to a private entity

or group of entities, and has used its discretion to determine how the ultimate project is to be constructed. Any

other construction would render the term ‘‘initiated’’ in

§ 22a-1b (c) superfluous.

In 2011, the legislature mandated that the department

propose a comprehensive energy strategy for the state.

See Public Acts 2011, No. 11-80, § 51 (a); see also General Statutes § 16a-3d. As part of that comprehensive

energy strategy, the department proposed the elements
and contours of a natural gas conversion plan, and it

proposed a series of administrative actions that placed

the department at the center of the implementation

process.

The department’s proposal requested authority to

review the plan from private gas companies, to determine its consistency with the comprehensive energy

strategy, to modify the plan it had received, and,through

the authority, to make the changes to the regulatory

structure necessary to ensure the plan’s feasibility and,

ultimately, to approve it. In short, the department proposed a sequence of activities leading to performance

of the conversions by private gas companies. This

sequence of activities was first proposed by the department. None of the activities were mandated, or even

mentioned, by the legislature in 2011. See Public Acts

2011, No. 11-80, § 51. Had the department not fashioned

a natural gas conversion plan, and had the department

not proposed the administrative steps to implement it,

there would have been no plan for the legislature to

approve or endorse. In 2013, the legislature gave the

department discretion to review the plan it received

from the gas companies in orderto determine whetherit

was consistent with the comprehensive energy strategy.

The department approved the plan only after the gas

companies made numerous revisions that were directed

by the department. Much of the gas companies’ plan is

the work of the department. If the department had not

made the consistency determination, the plan would not

have moved forward to final approval by the authority.

Number 13-298, § 51 (c), of the 2013 Public Acts provides in relevant part that ‘‘[i]n the event that the commissioner determines that the [gas companies’] plan is

consistent with the [c]omprehensive [e]nergy [s]trategy

. . . the [authority] shall . . . approve or modify the

plan . . . .’’ There would have been no plan to ‘‘approve

or modify’’ had the department not made the threshold

determination of consistency. Moreover, the legislative

delegation to the authority to ‘‘approve or modify’’ the

plan was extremely broad. The authority had almost

unfettered discretion to condition its approval on modifications by the gas companies to their natural gas conversion plan. An agency’s power to approve

conditionally is inherent in the power to approve or

disapprove. See Connecticut Fund for the Environment, Inc. v. Environmental Protection Agency, 672

F.2d 998, 1006 (2d Cir.), cert. denied sub nom. Manchester Environmental Coalition v. Environmental Protection Agency, 459 U.S. 1035, 103 S. Ct. 445, 74 L. Ed. 2d

601 (1982). This broad discretion provided the authority

with the power to influence and shape the gas companies’ plan and the activities necessary to implement it.

Thereafter, the authority approved and modified the gas

companies’ plan. It also made a series of discretionary

determinations to change the rate structure in ways

that were necessary to the plan’s feasibility, including
determinations to lower the hurdle rate for recoupment

of costs by the gas companies. Had the authority not

approved the gas companies’ plan as modified, and had

the authority not made these other determinations, the

gas companies’ conversion plan could never have been

implemented. The authority’s actions, as effectuated in

twenty-two separate orders, were a major part of the

implementation plan. Thus, the department proposed

the primary recommendation for activities that may

significantly affect the environment, making it the

‘‘sponsoring agency’’ for purposes of § 22a-1a-2 of the

Regulations of Connecticut State Agencies. It also initiated the activities, after legislative approval, by making

discretionary determinations that were essential to permitting the gas companies to carry out their plan. The

department’s actions, through the authority, were

‘‘actions’’ within the meaning of the policy act and its

implementing regulations. In my view, the department’s

consistency determination is much the same as the

determination made by the Department of Planning and

Energy Policy in Manchester Environmental Coalition

v. Stockton, supra, 184 Conn. 54–55. In that case, the

Department of Planning and Energy Policy was required

to determine that the project at issue ‘‘is not inimical

to any statewide program objectives.’’ Id., 55. That

determination was a prerequisite to the approval of the

project by the Commissioner of Commerce. Here, the

department’s consistency determination was a prerequisite for approval of the gas companies’ plan by the

authority. Therefore, I would conclude that the defendants’ involvement in the gas project constituted

‘‘action’’ within the meaning of the policy act.

III

The complaint alleges that if the defendants had performed an environmental assessment, they would have

determined that the natural gas expansion plan will

have a significant effect on the environment. The complaint also alleges that the plan, which proposes to

convert 300,000 additional homes to natural gas and

to build 900 miles of new gas lines, will significantly

increase the amount of methane, a greenhouse gas, that

is emitted each year by Connecticut’s gas companies.

Currently, it is alleged, the natural gas distribution system in Connecticut is leaking more than 200,000 metric

tons of methane per year while serving 415,000 customers. Since the department’s plan would almost double

the number of gas customers, increased methane emissions, it is alleged, would result and their extent should

have been assessed and, if necessary, moderated.

As alleged in the complaint, the impact of methane

is considerably more serious than that of carbon dioxide. The United States Environmental Protection

Agency has concluded that methane is more than

twenty times as effective as carbon dioxide in trapping

heat in the atmosphere. For this reason, Connecticut
has established targets for decreased greenhouse gas

emissions in the state’s Global Warming Solutions Act.

See Public Acts 2008, No. 08-98, § 2.

The complaint also alleges that the department’s plan

to build 900 miles of new gas lines requires construction

activities that will adversely impact the state’s freshwater wetlands, soils, water, groundwater aquifers, trees

and wildlife habitat. The complaint states that these

consequences, like the increased methane emissions,

should also have been assessed and, if necessary, moderated.

All of these activities were undertaken with no environmental impact evaluation. As a result of the majority

decision today,the state will be able to avoid an environmental review of future projects by following the same

process it followed in the present case. Such a result

is not contemplated by the policy act. The policy act

was designed to ensure a thoughtful and meaningful

consideration of environmental issues. The procedures

mandated by the policy act should have been invoked

in this case.

In my view, therefore, the decision of the trial court

dismissing the complaint forlack of subject matterjurisdiction should be reversed. The matter should be

remanded to the trial court with instructions consistent

with a determination that the defendants proposed and

initiated an ‘‘action’’ within the meaning of the policy

act and for further proceedings to determine whether

this ‘‘action’’ will arguably have a significant effect on

the environment.

Accordingly, I respectfully dissent.

1 The majority maintains in footnote 13 of its opinion that ‘‘[w]e do not

believe that it was simply redundant for the legislature to make it clear that

an environmental impact assessment is required either when a state actor

undertakes the activity or when a private actor undertakes the activity, but

the activity is funded by the state. In any event, it is far from clear that the

state funds all activities by state actors, in whole or in part. We note, for

example, that the federal government frequently funds state programs and

projects, and, without having performed a comprehensive review of those

activities, we are not prepared to say that the state contributes funding to

all of them.’’ (Emphasis in original.)

I continue to maintain, respectfully, that pursuant to § 22a-1a-1 (2) of the

regulations, the word ‘‘action’’ includes ‘‘other proposed activity for which

an agency exercises judgment or discretion as to the propriety of that action.’’

The definition does not state that ultimate action must be undertaken by

an agency or agencies.

The majority accurately highlights one of the problems in this case. The

record is inadequate to determine the nature of the funding in this case.

See footnote 13 of the majority opinion. Certainly, in the sense that the

state is involved, the state funds payment for its employees reviewing the

projects and any experts whom the state may consult. Although the record

reflects the private funding of the project, we do not know if the state was

being reimbursed for the costs in reviewing the project. This issue relates

to the issues discussed in part I of this dissenting opinion. In my view, the

matter should be returned for a factual hearing regarding the full nature of

the funding in this matter. Otherwise, we are resorting to speculation regarding the true nature of this project and how facts that are developed at a

hearing may relate to the appropriate interpretation of the statute.