WESTPORT v. STATE, 204 Conn. 212 (1987)

527 A.2d 1177

(13078)Supreme Court of Connecticut

PETERS, C.J., HEALEY, SHEA, CALLAHAN and LAVERY, Js.

The plaintiff, the town of Westport, challenging the state’s construction and operation of a temporary truck weighing and inspection station at a former highway rest area in that town, sought injunctive and declaratory relief. The plaintiff claimed that the construction and operation of such a station violated both the Environmental Policy Act (22a-1 through 22a-13) and the Environmental Protection Act (22a-14 through 22a-20). The trial court determined that the plaintiff could not prevail under the Environmental Protection Act and that although the defendants had not prepared an environmental impact statement as required by the Environmental Policy Act, that noncompliance was justified here by that act’s express exemption for emergency measures. On the plaintiffs appeal to this court pursuant to the statute (52-265a) concerning direct appeals on questions involving the public interest, held: 1. Notwithstanding the defendants’ claim to the contrary, the defendants’ preparation of a written environmental impact evaluation for the Westport station did not render the plaintiffs appeal moot since the process of environmental assessment had not been completed prior to the determination of that appeal. 2. The defendants’ claims that no environmental assessments were required here because the weighing station had been created prior to the passage of the Environmental Policy Act and because there had been no finding that the construction would significantly affect the environment were unpersuasive: the act applies to all new construction undertaken after its effective date, including here the construction and operation of a station that was substantially different from the previous use of the site; the act, moreover, requires an environmental assessment whenever a project will arguably damage the environment. 3. The plaintiffs claim to the contrary notwithstanding, the trial court did not err in concluding that the construction and operation of the inspection station was an emergency measure undertaken in response to an immediate threat to public health and safety.

Argued May 13, 1987

Decision released June 30, 1987

Action to enjoin the state from constructing or operating a temporary truck weighing and inspection station in the town of Westport, and for other relief, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford and tried to the

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court, N. O’Neill, J.; judgment for the defendants, from which the plaintiff appealed to this court after the granting of an expedited appeal pursuant to General Statutes 52-265a. No error.

Richard L. Albrecht, with whom was Stewart I. Edelstein, for the appellant (plaintiff).

Cornelius F. Tuohy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellees (defendants).

PETERS, C.J.

The determinative issue on this appeal is whether the state justifiably relied upon the existence of an emergency when it constructed a temporary truck weighing and inspection station without first undertaking an environmental impact evaluation. The plaintiff, the town of Westport, filed a complaint seeking injunctive and declaratory relief from the defendants.[1] As grounds for this relief, the plaintiff claimed that the construction and operation of a temporary weighing station between Exits 17 and 18 on Interstate Highway 95 in Westport violated the Environmental Policy Act, General Statutes 22a-1 through 22a-13, and the Environmental Protection Act, General Statutes 22a-14 through 22a-20. The trial court, after an extensive hearing, rendered judgment for the defendants. The trial court found that the plaintiff could not prevail under the Environmental Protection Act, and that the defendants’ noncompliance with the Environmental Policy Act was justified by that act’s express exemption for emergency measures. General Statutes

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22a-1c.[2] The plaintiff sought and received permission for a direct appeal to this court pursuant to General Statutes 52-265a. We find no error.

The trial court’s memorandum of decision establishes the following facts. Interstate Highway 95, now known as the Governor John Davis Lodge Turnpike, was opened in the Westport area in 1957. The turnpike was operated as a toll road until October, 1985. Removal of the toll stations resulted in a 20 percent increase in traffic and a marked increase in accidents.

Governor William A. O’Neill, on August 22, 1986, declared a state of emergency on Connecticut’s highways. Among the measures he then announced was the establishment of a temporary truck weighing and inspection station on the turnpike in Westport. Four days later, the deputy commissioner of transportation, relying on General Statutes 13b-26 (f),[3] declared the

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existence of an “emergency condition.” His emergency declaration ordered the construction of a weighing and inspection station at a designated site in Westport that had formerly been a rest area but had been entirely closed to the public in recent years.[4]

The Westport station is used for weighing and inspection purposes by having state inspectors flag over many but not all trucks using the highway. Those trucks that do not pass inspection may be “deadlined” at the rear of the parking lot at Sherwood Island State Park. Those that are found to be leaking either cargo or fuel may be required to discharge such fluids either over a sand pile or over a containment tank. The containment site, weighing station and inspection area are located less than 200 feet from the Sherwood Mill Pond, which is a prime coastal estuary. The “deadline” site is located adjacent to prime tidal wetlands.

The trial court expressly recognized that contamination by hazardous materials from the station site could jeopardize the environmental integrity of the pond, the

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estuaries and the wetlands. Based on experience, however, it is likely that, on average, less than one truck a month will be found to leak upon inspection at the Westport station. Few leaking trucks were discovered either during the initial inspections conducted at the Westport station or during earlier analogous inspections at a Mianus River Bridge station.[5]

On the basis of these factual findings, the trial court ruled that the plaintiff had standing to pursue its claims under both the Environmental Policy Act and the Environmental Protection Act, and that its action was not barred by laches. The court also determined that these statutes applied to the construction of the Westport weighing and inspection station. On the merits of the plaintiff’s claims, the court concluded that the plaintiff could not prevail under the Environmental Protection Act because it had failed to prove “any present reasonable expectation of unreasonable pollution.” With respect to the Environmental Policy Act, however, the court determined that, because the project could “arguably damage the environment,” the state had failed to comply with that act’s requirement for preparation of an environmental impact assessment.[6]

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Nonetheless, the court ultimately rendered judgment for the defendants under the Environmental Policy Act on the ground that the state’s failure to prepare an environmental impact statement was excused because of the statutory exception, in 22a-1c, for “emergency measures . . . undertaken in response to an immediate threat to public health or safety.

In this court, controversy has been limited to the scope and the applicability of the Environmental Policy Act. With regard to that act, the defendants challenge the trial court’s conclusion that, but for the existence of an emergency, the department of transportation would have been required to undertake an environmental impact study before constructing the Westport weighing and inspection station. They claim that the trial court erred in applying the act retroactively to a site that antedated the effective date of the act, and in requiring an environmental assessment in the absence of a showing that departmental action would “significantly” affect the environment. General Statutes 22a-1b (b). The plaintiff contends, on the other hand, that the trial court erred in its construction and application of the emergency exception contained in 22a-1c. Finally, in a motion filed after the parties submitted their briefs, the defendants urge us to dismiss the plaintiff’s appeal as moot because environmental impact evaluations have now been prepared for the Westport station, and elsewhere, in anticipation of finding a permanent location for a weighing and inspection station near the western terminus of Interstate Highway 95.

I
Because mootness is jurisdictional, this court having no authority to deliver advisory opinions, we must first address the question raised by the defendants’ motion to dismiss. State v. Hope, 203 Conn. 420, 423-24,

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524 A.2d 1148 (1987); Hartford Principals’ Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496-98, 522 A.2d 264
(1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571-74, 499 A.2d 1158 (1985). In their motion, the defendants allege that a detailed written environmental impact evaluation has now been prepared for the Westport weighing station, and that the public, including the plaintiff, has been notified of its availability.

As the plaintiff notes, however, the process of environmental assessment requires more than the publication of an environmental impact evaluation. Under the Environmental Policy Act, an agency’s environmental evaluation must be reviewed and approved by the state office of policy and management, which has the authority, if necessary, to require whatever revisions are needed to satisfy existing statutory and regulatory requirements. General Statutes 22a-1b
through 22a-1e. Since the process of environmental evaluation has not yet been completed, the plaintiff’s appeal is not moot.

II
The defendants urge us to affirm the judgment of the trial court by a different route than that taken by that court. The defendants argue that no environmental assessments of any kind were required in this case for two reasons: (1) the provisions of the Environmental Policy Act do not govern the “reactivation” of the Westport weighing station; and (2) the act, in 22a-1b (b), requires environmental impact assessments only for departmental actions “which may significantly affect the environment.” We are unpersuaded that either of these reasons justifies the failure to obtain an environmental assessment.

The defendants raised the retroactivity argument in the trial court, where they maintained that the Westport weighing station was planned, designed and

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constructed long before the effective date of the Environmental Policy Act. The trial court took no issue with the principle of law upon which the defendants rely, namely that statutes are presumed to operate prospectively. Enfield Sans Loan Assn. v. Bissell, 184 Conn. 569, 571, 440 A.2d 220 (1981); East Village Associates, Inc. v. Monroe, 173 Conn. 328, 331-32, 377 A.2d 1092 (1977); see General Statutes 55-3. Instead, the court found, as a matter of fact, that “the construction and operation of a truck inspection station [is] substantially different from the rest area and intermittent inspection of the station previously in use.” Specifically, the court found that the site had at one time been a highway rest area, and had been used intermittently as a weighing station employing temporary mobile scales. In recent years it had been entirely closed to traffic. In constructing the weighing station, the department of transportation had laid new asphalt and installed barriers, guardrails, a shelter, and lights. A weighing scale had been embedded in a pit. Water catchbasins and connecting pipes had been relocated, and a large concrete epoxy lined containment tank had been added to the station area.

Since the defendants have not challenged the validity of any of these findings of fact, the only question that remains is whether the Environmental Policy Act governs substantially new construction on property that the state has owned and used for many years. The case cited by the defendants, National Wildlife Federation v. Goldschmidt, 504 F. Sup. 314, 317 (D.Conn. 1980), aff’d, 677 F.2d 259 (2d Cir. 1982), does not address this question, because it deals with a project already under construction when the national Environmental Protection Act became effective. Absent compelling authority to the contrary, and recognizing the vital remedial purposes served by the Environmental Policy Act, we conclude, as did the trial court, that the

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act applies to all new construction undertaken after its effective date. See also Regs., Conn. State Agencies 22a-1a-1 (2).[7]

The defendants maintain, in the alternative, that the trial court should have found the construction of the Westport weighing station to be exempt from the requirements of the Environmental Protection Act because the plaintiff failed to prove that the actions of the department of transportation would “significantly affect the environment.” General Statutes 22a-1b. As the trial court correctly noted, this argument is foreclosed by our decision in Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 63, 441 A.2d 68
(1981). In that case, we construed 22a-1b to require an environmental impact assessment “whenever [a] project will arguably damage the environment.” (Emphasis added.) Id., 67. The trial court concluded that the plaintiff at trial had produced sufficient evidence “that, if presented to [the department of transportation], should have caused [the department] to begin the process of deciding if an EIS or FONSI was necessary.” We emphasize again, as we did in Manchester Environmental Coalition v. Stockton, that the purpose of the Environmental Policy Act is to ensure systematic consideration of environmental risks at the early stages of planning before the state commits its resources to the particular use of a site. Id., 68; Regs., Conn. State Agencies 22a-1a-7 (b);[8] see also National

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Audubon Society v. Hester, 801 F.2d 405, 407-408
(D.C. Cir. 1986); Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109, 1113-15 (D.C. Cir. 1971). As the trial court held, the department’s failure to undertake such planning in this case violated the act unless its conduct fell within one of the act’s specific statutory exemptions.

III
The plaintiff contends, in its appeal, that the trial court erred in its interpretation of the statutory exemption for “emergency measures undertaken in response to an immediate threat to public health or safety.” General Statutes 22a-1c. We will treat jointly the plaintiff’s two arguments addressed to the scope of such an exemption as a matter of law, and then consider its other two arguments about the applicability of the exemption to the facts of this case.

As a matter of law, the plaintiff urges us to construe the emergency exemption in light of the remedial policy of the Environmental Policy Act. That policy requires public agencies to undertake programmatic pursuit of environmental assessments of their actions so as to “conserve, improve and protect [Connecticut’s] natural resources and environment and to control air, land and water pollution in order to enhance the health, safety and welfare of the people of the state.” General Statutes 22a-1. The purpose of the act is to have environmental assessments precede agency action. General Statutes 22a-1b (b).

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In order to implement the policy and the purpose of the Environmental Policy Act, it is appropriate to construe its exemptions narrowly and to impose the burden of proving the applicability of an exemption upon the agency claiming its benefit. Conservation Commission v. Price, 193 Conn. 414, 423-24, 479 A.2d 187
(1984); Wilson v. Freedom of Information Commission, 181 Conn. 324, 329, 435 A.2d 353 (1980); State v. Avcollie, 174 Conn. 100, 109-10, 384 A.2d 315 (1977). Nonetheless, we disagree with the plaintiff that the failure of the department of transportation to initiate an environmental assessment before the commencement of work at the Westport site automatically and totally deprives the defendants of the right to invoke the emergency exemption. Even narrowly construed, the emergency exemption must have some scope of operation. The legislature could reasonably have concluded that conditions of emergency would require an immediate governmental response that could not await the preplanning that the Environmental Policy Act normally envisages.

We turn then to the question of the applicability of the emergency exemption in the circumstances of this case. In that regard, the plaintiff has launched a twofold challenge to the rulings of the trial court, claiming that (1) the department of transportation’s declaration of emergency was improper, and (2) the evidence did not establish an immediate threat to health or safety. The trial court determined that the construction of the temporary Westport station was an “emergency measure” under 22a-1c because this project was specifically authorized by the declaration of emergency issued by the deputy commissioner of transportation on August 26, 1986. The commissioner of transportation is authorized to declare the existence of an “emergency condition” under General Statutes 13b-26 (f) and had previously delegated to his deputy the authority to sign

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any instrument which the commissioner was himself authorized to sign.

The plaintiff maintains that the trial court was in error in ruling that 13b-26 (f) authorized the declaration of an emergency in this case. The statute confers such authority upon the commissioner of transportation in the event of “an emergency condition . . . which demands immediate attention to insure the safety of the traveling public . . . .” The increase of traffic because of the removal of tolls does not, according to the plaintiff, fall within the intended scope of “emergency condition.” The trial court found, however, that, in the year between the closing of the toll stations and the time of trial, traffic on Interstate Highway 95 had increased by “a factor of at least 20%” and that accidents had also “increased markedly.” An expert witness for the plaintiff, Richard Carpenter, executive director of the South Western Regional Planning Agency, testified that conditions on the highway constituted “a crisis situation.” In the absence of any challenge to the factual accuracy of this record, which sustains the trial court’s ruling, the plaintiff cannot prevail on this issue.

The record also defeats the plaintiff’s contention that the trial court erred in concluding that the department of transportation had undertaken emergency measures “in response to an immediate threat to public health and safety.” The trial court found immediacy in the unforeseen increased risk of truck accidents associated with the increase in the use of Interstate Highway 95 after the removal of tolls. The court found operator impairment or truck defects to be a “threat to public . . . safety.” Again, this finding is supported by testimony offered by a witness for the plaintiff. When Martha S. Hauhuth, first selectwoman of the town of Westport, was asked whether she believed “that traffic conditions on the Connecticut Turnpike pose an immediate threat to the public health and safety,” she

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responded: “Immediate and that has been present for a long time.” Taking into account the understanding that the Westport station was a temporary measure to respond to a perceived crisis while long term solutions were under consideration, we cannot fault the trial court’s fact-bound determination that the defendants’ actions fell within the exemption of 22a-1c.

There is no error.

In this opinion the other justices concurred.