2007 Ct. Sup. 9457
No. HHD-CV02-4025413-S X07Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
April 4, 2007
MEMORANDUM OF DECISION
SAMUEL J. SFERRAZZA, J.
This opinion addresses the question of whether the Commissioner of the Department of Environmental Protection, represented by the Attorney General’s Office, who prevails on a claim brought under § 22a-16 of the Connecticut Environmental Protection Act (CEPA) is eligible for an award of reasonable attorneys fees under General Statutes § 22a-18(e). The court holds that the Commissioner stands outside of the list of those parties who may be awarded attorneys fees under § 22-18(e).
In this case, the DEP indisputably prevailed in the underlying CEPA action, see Rocque v. Mellon, 275 Conn. 161 (2005), cert. denied Goodspeed Airport, LLC v. Ventres, 126 S.Ct. 1913 (2006). The sole basis asserted for attorneys fees is § 22a-18(e).
Section 22a-18(e) states:
(e) The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorneys fee.
The applicant argues that the Commissioner is a “person” for purposes of the list of parties eligible for recoupment of attorneys fees under § 22a-18(e). The applicant relies on the definition of “person” contained in General Statutes § 22a-2(c) which states:
(c) As used in this chapter, . . . except where otherwise provided, “person” means any CT Page 9458 individual, firm, partnership, association, syndicate, company, trust, corporation, limited liability company, municipality, agency or political or administrative subdivision of the state, or other legal entity of any kind.
The DEP is clearly a state agency, and, therefore, falls within the definition of “person” set forth in § 22a-2(c). However, the Commissioner’s argument ignores the exception “where otherwise provided.”
Section 22a-16 empowers certain parties to maintain an action in superior court for declaratory or equitable relief against those who pollute, impair, or damage natural resources. The list of parties granted standing to bring a CEPA action is:
The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity. (Emphasis added.)
If the definition of “person” in § 22a-2(c) were meant to apply to “person” as used in § 22a-16, then the list recited above would be redundant because all of the entities described in § 22a-16 would fit within the § 22a-2(c) definition of “person.” Given the lengthy list of entities particularly described in § 22a-16, including “person,” the use of “person” in § 22a-16 must mean a natural person. Otherwise, the language specifying eight classes of entities besides “any person” would be superfluous. Consequently, the use of “person,” in § 22a-16 and § 22a-18(e), fails to include the DEP or the Office of the Attorney General, and, therefore, if the DEP is entitled to receive attorneys fees under § 22a-18(e), that agency must fall into one of the other categories listed in that subsection.
A comparison of the list of entities upon which standing to maintain a CEPA claim is conferred under § 22a-16 with the list of those entities who may be awarded attorneys fees under § 22a-18(e) for such a claim is highly illuminating. These two lists are identical with the glaring exception that the governmental bodies are omitted in § 22a-18(e). Section 22a-16 delineates who may bring a CEPA claim, and § 22a-18(e) delineates which of those parties, if successful, may recoup attorneys fees. The absence of certain entities from the otherwise parallel language strongly implies that the omitted entities are ineligible for CT Page 9459 the award of attorneys fees afforded by § 22a-18(e).
The exclusion of public entities from the recoupment of attorneys fees is logical. Section 22a-16 permits CEPA claims to be asserted by both governmental bodies and private parties in order to prevent or remediate the unreasonable exploitation of the state’s natural resources. Public entities, such as the DEP and the Attorney General’s Office, are charged by the legislature with the responsibility to protect these resources and have budgets which must encompass the expenses attendant to prosecuting CEPA actions, see § 22a-5 and § 3-125. The assistant attorney generals who pursue CEPA cases on behalf of the DEP are compensated for performing these duties as part of their employment by the state.
Private parties, on the other hand, have no such duties and need incentives to engage in litigation which benefits the public. If private entities had to bear the cost of maintaining CEPA claims without the possibility of recouping attorneys fees, the statutory creation of “private attorneys general” under § 22a-16 would be a hollow gesture. The distinction between private parties who have no duty to pursue CEPA claims and governmental agencies whose offices mandate such action is critical.
The conspicuous deletion in § 22a-18(e) of the Attorney General and state agencies from the list of potential plaintiffs as set forth in § 22a-16 compels the conclusion that no award of attorneys fees are available to the state following a successful CEPA action under §22a-16.
CERTIFICATION
I hereby certify that a copy of the attached was mailed, postage prepaid, on this 4th day of April 2007 to all counsel and pro se parties of record in accordance with P.B. § 10-14.
David Wrinn, Esq Attorney General’s Office Environmental P.O. 120 Hartford, CT 06141-0120
Brenner, Saltzman Wallman LLP 271 Whitney Avenue New Haven, CT 06511
Murtha Cullina LLP City Place One 185 Asylum Street Hartford, CT 061033-3469
Mr. Kevin Loftus Reporter of Judicial Decisions Supreme Court Building 231 Capitol Avenue Hartford, CT 06106 CT Page 9460
Flora Pizzoferrato, Esq. Court Officer — X07 CLD — Hartford 95 Washington Street Hartford, CT 06106 (860) 548-2737
CT Page 9461