When did a changed Connecticut state project need renewed environmental review, and who could challenge an omission?

Plain-English summary

In December 2001, Connecticut’s AG told the Council on Environmental Quality that a state project’s changed plans or mitigation could require a new or revised environmental impact evaluation or finding of no significant impact. The trigger he identified was a reasonable possibility that the change might harm the environment. Office of Policy and Management review of an original evaluation did not make later material changes immune from review.

The opinion also mapped the available oversight roles. OPM received and assessed environmental evaluations and administered the policy act, but no state agency was specifically designated to enforce violations of that act. CEQ could receive and investigate citizens’ complaints, ask a sponsoring agency why it proceeded without review, and refer potential environmental-permit violations to the Department of Environmental Protection. The AG said CEQ was within the broad class of entities that could sue under the separate Environmental Protection Act, with AG legal services where appropriate and litigation warranted.

Project sponsors at the time

The opinion used the reasonable-possibility-of-harm standard for deciding whether changed plans or mitigation called for renewed review. It did not decide the impact of a particular change.

CEQ and residents at the time

CEQ was an avenue for complaints and investigation. The AG described a possible court action under the Protection Act, not automatic enforcement or a guaranteed remedy for every missing evaluation.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did an approved environmental evaluation cover any later project change?
A: No. The AG said a new or revised evaluation or finding should be prepared if a change might reasonably have a detrimental environmental effect.

Q: Where could citizens raise a complaint about a state project started without review?
A: The opinion identified CEQ as authorized to receive and investigate complaints. CEQ could also refer possible DEP-program violations to that agency.

Q: Could CEQ bring a court case over a missed review?
A: The AG said CEQ could be a plaintiff under the Environmental Protection Act and that AG legal services could include a warranted action. He did not promise suit in every case.

Background and statutory framework

CEQ asked about post-approval project changes, oversight of the Environmental Policy Act, complaint handling and litigation. The AG distinguished OPM’s review and administration role from CEQ’s investigative role and from a possible protection-act lawsuit to enforce policy-act duties.

Citations and references

Statutes: Conn. Gen. Stat. § 22a-1e; Conn. Gen. Stat. § 22a-13; Conn. Gen. Stat. § 3-125.

Case: Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 67 (1981).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2001-formal-opinions/mr-donal-c-obrien-jr-council-on-environmental-quality-2001026-formal-opinion-attorney-general-of-con

Original opinion text

Mr. Donal C. O'Brien, Jr., Council on Environmental Quality, 2001-026 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 10, 2001

Mr. Donal C. O'Brien, Jr.

Chairman

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,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Janet P. Brooks

Assistant Attorney General

RB/JPB/mei