Not Another Power Plant v. Connecticut Siting Council

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The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** 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 errone- ous belief that the relevant provisions of the Public Utility Environmental Standards Act (act), General Stat- utes § 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 pres- ent 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 envi- ronmental 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 deci- sion unless it finds ‘‘ ‘that substantial rights of the person appealing have been prejudiced because the administra- tive findings, inferences, conclusions, or decisions are . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discre- tion.’ ’’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 environ- mental 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 applica- tion 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 discre- tion constituted an abuse of discretion.’’ State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986); see also Mead- owbrook Center, Inc. v. Buchman, 328 Conn. 586, 609, 181 A.3d 550 (2018) (remand for hearing was appro- priate ‘‘because the trial court improperly failed to exer- cise 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 discre- tion 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 Inter- nal Revenue, 45 F.3d 396, 397 (10th Cir. 1995) (tax commissioner ‘‘failed to demonstrate that she had exer- cised her discretion and thereby abused that discre- tion’’); 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 Administra- tive 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 pro- ceeding 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 environ- mental impact until a future proceeding on an applica- tion seeking a certificate for that pipeline, it also could have decided to consider the impact of the two interre- lated 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 dis- cretion, 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 judg- ment of the trial court with direction to remand the case to the council for further proceedings consistent with this opinion. judgment based on its own careful assessment of all of the pertinent consider- ations 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.))