The state Senate is to be congratulated for its consideration of amending the Connecticut Environmental Protection Act (CEPA).  CEPA is an important tool for protecting Connecticut’s environment.

CEPA enables any person, partnership, corporation or other legal entity, that believes conduct being considered for approval by any state or municipal agency (generally in the context of a permitting or licensing proceeding) would unreasonably impair the environment, to insert themselves into the related legal proceedings.

Unfortunately, such intervention--or even the threat of it-- can substantially delay and increase the expense associated with the administrative approval process,  particularly at the municipal level where standard time limits on these interventions generally do not exist. 

And  CEPA allows individuals to “parachute” into a permit or licensing proceeding at the very last minute – or even after a permit or license is granted in a case where that approval is appealed to the courts.  

A second concern with CEPA is that historically, it has been used to assert potential environmental harm, even when there no credible evidence for such a claim is offered. 

While the current version of SB 343 reflects some recent court cases that have reinforced the need for credible evidence at the time of filing a CEPA claim, the issue of last-minute CEPA claims remains a major shortcoming of CEPA that also needs to be addressed in the bill.

The original version of SB 343 proposed specific time frames for credible evidence in CEPA claims to be presented, considered and resolved by administrative agencies.

Those provisions were considered too controversial to be resolved in a short legislative session and have been dropped from the current version of the bill.  However, there is a simple change that could be made to the bill that should not be controversial and would at least provide municipal agencies the same flexibility as state agencies in these matters.

State administrative proceedings at the Department of Energy and Environmental Protection are conducted in accordance with the agency’s “Rules of Practice” which are formally adopted as regulations.

Those regulations provide that requests for intervention into an administrative proceeding must occur no later than 5 days before the date of commencement of formal consideration of the permit or licensing application in a hearing, “except that such five-day requirement may be waived by the [agency], as appropriate, at any time before or after the commencement of [formal consideration] for good cause shown.”

While the current version of SB 343 would largely codify recent court decisions with respect to the need for credible evidence, it leaves the critical issue of timely presentation of that evidence unresolved.

Particularly with some environmental organizations insisting that they will only consider not aggressively opposing the current bill if there is “assurance” that CEPA will not be considered again by the legislature for some time, it is critical that both the issue of credible evidence and the issue of timely intervention and presentation of such evidence be addressed in this bill.

For more information, contact Eric Brown at 860.944.8792 or eric.brown@cbia.com.