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For years, Redding Ridge, Conn., lawyer Nancy Burton and her anti-nuclear clients have been told time and again by Connecticut courts that they have no legal right to be there. But in arguments before the state supreme court March 14, Burton faced a less-hostile reception — against today’s backdrop of potential terror scenarios and new interpretations of a key environmental law. Burton’s clients include the Connecticut Coalition Against Millstone and several environmental foundations. In years of prior court actions, they have been told they lack legal standing, have not exhausted their administrative remedies, and that state Department of Environmental Protection Commissioner Arthur J. Rocque Jr. has the complete and final approval power over water discharge licensing. In Connecticut Commission v. Rocque, the plaintiffs’ main legal weapon has been the 31-year-old Connecticut Environmental Protection Act (CEPA), which allows “any person” to sue to get court-ordered remedies to protect “the public trust in the air, water and other natural resources” from unreasonable pollution or destruction. In the spring of 2001, they sought an injunction against the DEP in Hartford Superior Court to prevent the agency from transferring water discharge permits for the Millstone III nuclear power plant in Waterford to a new buyer, Virginia-based Dominion Nuclear Connecticut Inc. BIOLOGY VERSUS ECONOMICS The plaintiffs argued biology. The defendants argued economics. While Burton brought in biological experts in fish tumor growth, the defendants made their case through their financial executives, who argued that both the utilities’ and electricity consumers would suffer if the deal fell through. The discharge permits, first issued in 1992, were originally for five years. Burton contends the DEP should not have extended them under its emergency powers, because the 1.4 billion-gallon-per-day discharges threaten wildlife, and have allowed carcinogenic hydrazene to escape. The permits have been extended since 1998 for the plant’s historic owner, Northeast Nuclear Energy Company Utilities, which sold the Millstone complex to a Virginia utility for $1.3 billion. The environmental groups have challenged the ability of both current and future owners to operate the plants safely. Commented Burton in an interview, “What the DEP is effectively saying is that Millstone has been an ongoing nuclear emergency for all these years.” In March 2001, Hartford Superior Court Judge Carl J. Schuman denied a temporary injunction to transfer the permits, citing key precedents in which Burton’s clients lost. The two 2000 state supreme court cases are both named Fish Unlimited v. Northeast Utilities, or “ Fish I” and “ Fish II.” Schuman noted that the plaintiffs did not contend that the transfer of the license, by itself, would create an environmental danger. But a key part of the Fish cases was reversed last year in Waterbury v. Washington, an extensive decision authored by state supreme court Justice David M. Borden. It specifically held that CEPA does not require the exhaustion of administrative remedies before a court can act. Rather a court may remand a matter to a state administrative agency, it says. Borden exhaustively determined that the lawmakers recognized the difference between “shall” and “may.” He went back to the legislative debate in 1971, and noted that, even though both business interests and conservationists urged an administrative “exhaustion” requirement before courts could fashion a remedy, the lawmakers’ final language allowed a choice between administrative and judicial solutions. UNTOUCHABLE? In arguments before the high court March 14, Borden pointedly questioned lawyers for Rocque, the Northeast Nuclear Energy Co. (NNEC) and Dominion Nuclear Connecticut. Assistant Attorney General Mark P. Kindall contended the DEP shouldn’t be targeted because it was not a polluter in any way, and was merely pursuing its legally mandated function of licensing water discharge. The fact the DEP has such power under C.G.S. 22a-430 places the subject within the exclusive domain of the agency, he said, precluding a CEPA challenge because ordinary citizens lack standing. Borden asked Kindall if the state could be challenged if the permit were obtained by a bribe of the DEP. Kindall wouldn’t concede even that. Environmental law attorney Elizabeth C. Barton, of Hartford-based Day, Berry & Howard, handled the appeal for NNEC. She argued that Waterbury v. Washington was only about the exhaustion doctrine, not standing. In any event, Barton contended, since the plant was sold to Dominion, any case against NNEC is effectively moot. Borden expressed disbelief that the defendants, collectively, appeared to argue that CEPA was legally useless against either public or private defendants in this case. The DEP commissioner, however, may not relish having exclusive power after all. The plaintiffs’ exhibit A-3, a Dec. 12, 1999, emergency permit sheet for Millstone 3, contains a handwritten notation that Burton claimed was written by Rocque. It reads, “I really hate these. Statutes [are] very limited in what the[y] define “emergency.’”

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