Connecticut’s effort to become more “business friendly” is very much needed. Businesses in Connecticut know that the regulatory requirements here are much more onerous than in most – perhaps all – other states. Reform is needed and can be accomplished without harm to the environment. I suggest that one of the first changes should be the repeal of Connecticut General Statute §22a-19.
The statute sounds like a good idea. It gives “any person” the right to intervene in an administrative proceeding, ostensibly to protect the environment. The actual language, an indecipherable morass, says that one may file a verified complaint against a project if it “involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.” I challenge you to figure out what that means, and I guarantee that no local agency faced with such a complaint knows. Complaints filed under this statute are never challenged because this language sets forth no meaningful standard against which the complaint can be measured.
But apart from the confusion, interventions under this statute interfere with agency action and kill good development projects. §22a-19 interventions are most often seen in local wetland and planning & zoning matters. When the complaint is filed the municipal agency has no way to judge it. There are no standards, no requirements that the complaint must meet. Most simply quote the statute and aver that the project in question will impair Connecticut’s environment. Note that “any person” can file such a complaint. Traditionally, only certain people could become a party to someone else’s application – those who live within a certain distance of the property in question or who can prove injury to their own property. §22a-19 expands that universe exponentially. Now it is possible for someone from Toledo to come to Connecticut and challenge a development project; I have seen such interventions filed by people who live or work far away from the property in question, and the motive is always to eliminate business competition. When used in this way, the competition – the true mover behind the intervention – almost always hides behind an individual or a made-up local organization which espouses environmental concern, so the identity and the motive of the intervention is hidden.
The effect of a §22a-19 intervention is to slow down the permitting process and make it more difficult and expensive. The intervenor becomes a full party to the proceeding, with the right to present evidence and to cross-examine the applicant’s witnesses and experts. Local land use agencies are made up of lay volunteers. When presented with “evidence” from intervenors that has the ring of authenticity, the result is confusion. Unfortunately, there are any number of “experts” with advanced scientific degrees willing to serve as support for intervenors, but the information they present, though with the ring of scientific truth, is often not credible and of no value. A lay commission has no way to discern what is worthy of their consideration and what is not.
In litigation, there are procedures, that weed out bogus or irrelevant evidence; there is no such procedure in administrative proceedings. And the §22a-19 intervenor not only may participate in the adminstrative proceeding, he also has the right to appeal the decision to Superior Court.
The result is that even if the intervenor eventually loses, he frequently wins, because he has made the process so much slower and expensive that the development project fails even if it eventually wins in court. The appeal of a local land use permit takes the better part of a year, and frequently more, in court. Few development projects can withstand the expense of the procedure and the delay.
And there are no brakes, no standards, nothing standing in the way of the §22a-19 intervenor. The complaints are never turned away by the local agency or by the court because the language of the statute gives no meaningful, understandable standards by which to judge them.
We lose nothing if §22a-19 is repealed. Anyone can appear at a public hearing and object to an application, and can present evidence to support their objection. It is more likely that someone motivated to do so would have genuine concern for the protection of the environment. It may be difficult for legislators to vote to repeal this statute, which looks like it protects the environment, but an honest assessment of the way it works and is abused would reveal that it is a tool for anti-competitive action that provides no real protection for the environment at all.
Diane W. Whitney chairs the Environment Department at Pullman & Comley, LLC; her clients include both developers and municipal agencies.