Connecticut Coalition AGainst Millstone, et al. v. Arthur J. Rocque, Jr., Commissioners of Environmental Protection, et al.

The principal issue in this appeal is
whether the plaintiffs1 have standing under General
Statutes § 22a-162 to bring an action directly in the Superior
Court against the defendants3 for declaratory and
injunctive relief from alleged violations of the federal
Clean Water Act, 33 U.S.C. § 1251 et seq. The plaintiffs
claim that the operations of the Millstone Nuclear
Power Generating Station (Millstone) have resulted in
unreasonable pollution and should be halted because
Millstone has been functioning for several years without
a valid water discharge permit and emergency authorization.

The trial court granted the defendants' motions
to dismiss the plaintiffs' complaint on the ground that
the plaintiffs lacked standing to bring their action
directly in the Superior Court and rendered judgment
thereon. The plaintiffs appealed from the judgment of
dismissal to the Appellate Court, and we transferred
the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-1. We affirm the
judgment of the trial court.

The present action is one of several actions brought
over the course of the last three years by organizations
and individuals challenging the validity of water discharge
authorizations issued by the state department
of environmental protection (department) with respect
to the operation of the Millstone facility in Waterford.4
Prior to the commencement of this action, Millstone
was operated by the defendant Northeast Nuclear
Energy Company (Northeast). The facility utilizes seawater
from Niantic Bay to cool its three nuclear reactors
and discharges the heated water containing radioactive
and toxic wastes into Long Island Sound.

The operations of the facility require department
approval in the form of a water discharge permit,5 which
is valid for five years. The department last issued a
discharge permit to Northeast on December 14, 1992,
with an expiration date of December 13, 1997. Northeast
submitted a timely permit renewal application on June
13, 1997.6 The application is still pending, but Millstone
continues to operate pursuant to General Statutes § 4-
182 (b), which provides in relevant part that ‘‘[w]hen
a licensee has made timely and sufficient application
for the renewal of a license or a new license with reference
to any activity of a continuing nature, the existing
license shall not expire until the application has been
finally determined by the agency . . . .''
Millstone also discharges into the public waters certain
toxic substances that are not covered by the 1992
permit.7 On October 13, 2000, the department issued an
emergency authorization pursuant to General Statutes
§ 22a-6k8 that covers the additional discharges. The
emergency authorization provides that it will expire
‘‘upon a final determination on [Northeast's] application
for reissuance of [its water permit] or upon the [commissioner
of environmental protection's] determination
that the requirements of Section 22a-6k of the Connecticut
General Statutes are no longer applicable to the
activities authorized.''

In February, 2001, the defendant Dominion Nuclear
Connecticut, Inc. (Dominion), in conjunction with its
efforts to acquire the Millstone facility,9 applied to the
department for the transfer of environmental permits
issued to Northeast. On March 8, 2001, the plaintiffs
commenced the present action in the judicial district
of Hartford seeking: (1) a judgment declaring that the
1992 permit had expired, that the emergency authorization
was invalid and that neither the permit nor the
authorization could be transferred; (2) a temporary and
permanent injunction to prevent the continued operation
of the Millstone facility; and (3) a temporary and
permanent injunction to prevent the named defendant,
Arthur J. Rocque, Jr., commissioner of environmental
protection (commissioner), from approving the transfer
of the permit and emergency authorization from Northeast
to Dominion. According to the plaintiffs, the purpose
of the requested relief was to protect ‘‘the air,
water and other natural resources of the state from
unreasonable pollution, impairment or destruction
. . . .''

The plaintiffs' requests for relief were based in part
on allegations that the permit renewal application was
invalid because the three nuclear reactors were shut
down at the time the application was filed. Consequently,
the Millstone facility was not engaged in operations
of a continuing nature as required for application
approval under § 4-182 (b). The plaintiffs also alleged
that the emergency authorization had been issued in
violation of the letter and spirit of the law because its
issuance presumed the validity of the underlying permit
and it was one in a series of authorizations routinely
issued to Northeast over a period of years without
notice to the public and without public participation.10
On March 8, 2001, the plaintiffs also filed a separate
application for a temporary injunction to enjoin the
transfer of the permit and emergency authorization
from Northeast to Dominion. Because of the imminent
sale of Millstone to Dominion, the court ordered that a
hearing be held prior to March 31, 2001, on the plaintiffs'
application for a temporary injunction. On March 15,
2001, Northeast filed an application to transfer the case
to the complex litigation docket in Norwich. The chief
administrative judge of the civil division and presiding
criminal judge for the judicial district of Hartford determined
that the case should be transferred as requested,
but scheduled the injunction hearing for March 27, 2001,
in the judicial district of Hartford, as no judge was
available in the Norwich court to hold the hearing prior
to the end of March.

On March 29, 2001, following the hearing in Hartford,
the court, Schuman, J., issued a written opinion denying
the plaintiffs' application for a temporary injunction.
That same day, the department approved the transfer
of all environmental permits and emergency authorizations
from Northeast to Dominion. On March 30, 2001,
the plaintiffs petitioned this court, pursuant to General
Statutes § 52-265a, for certification to take a direct
appeal from the trial court's denial of the application
for a temporary injunction. The petition was denied on
April 3, 2001. Meanwhile, by order dated March 27,
2001, the case was transferred to the complex litigation
docket in Norwich.11 Four days later, Northeast closed
on the anticipated sale of Millstone to Dominion.
While those proceedings were pending, all three
defendants filed motions to dismiss the case,12 claiming
that the plaintiffs lacked standing under § 22a-1613 of
the Connecticut Environmental Protection Act, General
Statutes § 22a-14 et seq. (CEPA), and had failed to
exhaust their administrative remedies. The Superior
Court in the judicial district of Hartford heard arguments
on the motions to dismiss as well as on the
motion for a temporary injunction at the March 27, 2001
hearing. Thereafter, the court issued a briefing schedule
on the motions to dismiss in a footnote to its written
opinion denying the application for a temporary injunction.
Both sides filed briefs during the first two weeks
in April, 2001. After the case was transferred to the
complex litigation docket in Norwich, the court held a
two day evidentiary hearing on the motions to dismiss.
On July 19, 2001, the court, Koletsky, J., granted the
motions to dismiss in a ruling from the bench.
The court determined that the plaintiffs had ‘‘no
standing to bring a § 22a-16 action to challenge either
the transfer of the permit, the validity of the emergency
authorization or the validity of the extension of the
underlying 1992 permit with the expiration date of
1997,'' under the principles espoused in Fish Unlimited
v. Northeast Utilities Service Co., 254 Conn. 21, 755
A.2d 860 (2000) (Fish II). The court explained: ‘‘[T]here
is no question that [Fish II] requires the holding that
the § 22a-16 action brought by the plaintiffs cannot be
brought in an area expressly placed . . . within the
exclusive domain of the commissioner . . . .'' The
court further explained: ‘‘With respect to the challenges
to the validity of the 1992 permit and its extension and
the emergency authorizations, the court finds and holds
that the plaintiffs lack standing to bring a § 22a-16 action
in this proceeding or in this area which is committed
by the legislature to the exclusive domain of the . . .
commissioner. . . . Contrary to the plaintiffs' argument,
the statutory scheme is logical, straightforward
and uncomplicated. Section 22a-16 actions are not available
where the commissioner . . . has the responsibility
to act. When the commissioner . . . acts, there is
an administrative appeal from that. There is still, the
court opines, no § 22a-16 action after action by the
commissioner, should the commissioner issue a permit
to Millstone. . . . [A]s I said before, standing is not
there.'' After the court granted the motions to dismiss,
it denied the plaintiffs' motion for reargument, and this
appeal followed.

The plaintiffs claim on appeal that the court improperly
(1) granted the defendants' motions to dismiss their
complaint for (A) lack of standing under § 22a-16 and
(B) failure to exhaust their administrative remedies,
and (2) denied their application for a temporary injunction.
The plaintiffs also claim that alleged procedural
irregularities in the hearing proceedings on the motions
to dismiss were ‘‘prejudicial to the administration of
justice.'' Because we agree with the trial court's ruling
on the issue of standing, we do not reach the remaining
issues raised in the appeal.

I

We first address the defendants' claim that the
request of the plaintiffs for injunctive relief to enjoin
the transfer of the permit and emergency authorization
should be dismissed on the ground of mootness. The
defendants point out that the commissioner long ago
approved the transfer of permits and authorizations
and that, shortly thereafter, Northeast conveyed the
Millstone facility to Dominion. The defendants therefore
argue that there is no longer a controversy between
the parties with regard to the transfers and the court
can afford the plaintiffs no practical relief. Northeast
further claims that the appeal should be dismissed insofar
as it pertains to Northeast because Northeast retains
no ownership or legal interest in the Millstone facility
and has no control over the facility's current operations,
and, thus, this court cannot provide the plaintiffs with
any practical relief. We agree with the defendants on
both claims of mootness.14

‘‘Mootness implicates [this] court's subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a well-settled general rule that the
existence of an actual controversy is an essential requisite
to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, disconnected
from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pendency
of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.'' (Internal quotation marks omitted.) Giaimo v.
New Haven, 257 Conn. 481, 492–93, 778 A.2d 33 (2001).
Connecticut courts have rejected injunctive remedies
on the ground of mootness where the issue before the
court has been resolved or has lost its significance
because of intervening circumstances. See Waterbury
Hospital v. Connecticut Health Care Associates, 186
Conn. 247, 249–52, 440 A.2d 310 (1982) (court dismissed
as moot plaintiff's request for injunctive relief to
restrain picketing during strike because strike and picketing
had ended while appeal was pending); Daley v.
Gaitor, 16 Conn. App. 379, 381 n.2, 547 A.2d 1375 (court
dismissed as moot plaintiff's request to enjoin city of
Hartford from administering promotional examination
to police officers following city's promotion of officers
during pendency of appeal), cert. denied, 209 Conn.
824, 552 A.2d 430 (1988).

In the present case, following the court's denial of
the application for a temporary injunction on March
29, 2001, the department approved the transfer of all
environmental permits and authorizations from Northeast
to Dominion. Two days later, Northeast conveyed
the Millstone facility to Dominion. In light of the fact
that the facility has been sold and that the permit and
emergency authorization have long since been transferred,
we conclude that the plaintiffs' request for
injunctive relief to prevent the transfers from taking
place is rendered moot. The plaintiffs' request for a
judgment declaring that the permit and authorization
may not be transferred also is rendered moot. Intervening
circumstances have changed the legal landscape, a
controversy no longer exists between the parties and
the court cannot grant the plaintiffs any practical relief.
‘‘[W]here the question presented is purely academic, we
must refuse to entertain the appeal.'' (Internal quotation
marks omitted.) Waterbury Hospital v. Connecticut
Health Care Associates, supra, 186 Conn. 250.
Connecticut courts also have dismissed cases on the
ground of mootness where the court can offer no practical
relief because the position of one of the parties
has changed. Shays v. Local Grievance Committee, 197
Conn. 566, 570–71, 499 A.2d 1158 (1985) (appeal regarding
legality of sentence dismissed as moot because
plaintiff completed sentence imposed while appeal was
pending). In this case, Northeast's position changed
when it sold the Millstone facility to Dominion. Northeast
does not now own or operate the facility or hold
the attendant permits and authorizations. Consequently,
Northeast has no remaining connection with
Millstone and a controversy can no longer be said to
exist between Northeast and the plaintiffs. Wetherefore
dismiss the appeal insofar as it relates to Northeast
because the appeal has been rendered moot.

II

We next address the issue of the plaintiffs' standing.
The plaintiffs claim that the trial court improperly
granted the defendants' motions to dismiss their complaint
because § 22a-16 affords them standing to bring
an action alleging unreasonable pollution for lack of a
valid permit directly in the Superior Court. The defendants
respond that past Supreme Court decisions have
held that standing is not available under § 22a-16 to
commence such claims directly in the Superior Court.
We agree with the defendants.

We begin our analysis by setting forth the appropriate
standard of review. ‘‘If a party is found to lack standing,
the court is without subject matter jurisdiction to determine
the cause. . . . A determination regarding a trial
court's subject matter jurisdiction is a question of law.
When . . . the trial court draws conclusions of law,
our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record. . . .
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy presented
by the action before it. . . . [A] court lacks discretion
to consider the merits of a case over which it
is without jurisdiction . . . . The objection of want of
jurisdiction may be made at any time . . . [a]nd the
court or tribunal may act on its own motion, and should
do so when the lack of jurisdiction is called to its attention.

. . . The requirement of subject matter jurisdiction
cannot be waived by any party and can be raised
at any stage in the proceedings. . . .
‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substantive
rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy. . . . The
requirement of directness between the injuries claimed
by the plaintiff and the conduct of the defendant also
is expressed, in our standing jurisprudence, by the focus
on whether the plaintiff is the proper party to assert
the claim at issue. . . .

‘‘Two broad yet distinct categories of aggrievement
exist, classical and statutory. . . . Classical
aggrievement requires a two part showing. First, a party
must demonstrate a specific, personal and legal interest
in the subject matter of the decision, as opposed to a
general interest that all members of the community
share. . . . Second, the party must also show that the
agency's decision has specially and injuriously affected
that specific personal or legal interest. . . .
Aggrievement does not demand certainty, only the pos-
sibility of an adverse effect on a legally protected interest.

. . .

‘‘Statutory aggrievement exists by legislative fiat, not
by judicial analysis of the particular facts of the case.
In other words, in cases of statutory aggrievement, particular
legislation grants standing to those who claim
injury to an interest protected by that legislation.'' (Citations
omitted; internal quotation marks omitted.) Fort
Trumbull Conservancy, LLC v. Alves, 262 Conn. 480,
485–87, 815 A.2d 1188 (2003).
‘‘Traditionally, citizens seeking to protect the environment
were required to show specific, personal
aggrievement to attain standing to bring a legal action.

. . . The Connecticut Environmental Protection Act;
General Statutes § 22a-1 et seq.; however, waives the
aggrievement requirement in two circumstances. First,
any private party, including a municipality, without first
having to establish aggrievement, may seek injunctive
relief in court for the protection of the public trust in
the air, water and other natural resources of the state
from unreasonable pollution, impairment or destruction

. . . . General Statutes § 22a-16. Second, any person
or other entity, without first having to establish
aggrievement, may intervene in any administrative proceeding
challenging 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.
General Statutes § 22a-19 (a).'' (Citation omitted; internal
quotation marks omitted.) Fish II, supra, 254
Conn. 31.

In concluding that the plaintiffs lacked standing to
bring their complaint directly in the Superior Court
pursuant to § 22a-16, the trial court relied on our reasoning
in Fish II, a case very similar to the present case.
All of the plaintiffs15 and one of the defendants16 in the
present case were parties in Fish II. Furthermore, the
dispositive issue in Fish II, as here, was whether the
plaintiffs had standing under § 22a-16 to commence an
action in the Superior Court seeking (1) injunctive relief
to prevent the operation of the Millstone facility and
(2) a judgment declaring that the water discharge permit
was invalid.17 See id., 22–23.

Our analysis of the standing issue in Fish II was
guided by our decisions in two earlier cases, Connecticut
Fund for the Environment, Inc. v. Stamford, 192
Conn. 247, 470 A.2d 1214 (1984), and Middletown v.
Hartford Electric Light Co., 192 Conn. 591, 473 A.2d
787 (1984). In Connecticut Fund for the Environment,
Inc., the plaintiffs appealed to the Superior Court from
a decision of the defendant Stamford environmental
protection board approving an application to develop
a large tract of land for use as a regional postal facility.
Connecticut Fund for the Environment, Inc. v. Stamford,
supra, 248. The environmental protection board
was the city agency responsible for regulating activities
affecting wetlands and watercourses in Stamford under
the Inland Wetlands and Watercourses Act, General
Statutes § 22a-36 et seq. Id. The plaintiffs, one of whom
had intervened in the proceeding pursuant to General
Statutes § 22a-19, claimed, inter alia, that the board had
not considered air pollution, noise pollution and other
environmental problems created by increased traffic
that would be generated by the new development. Id.,
251. The trial court dismissed the appeal.

In affirming the trial court's judgment, we concluded
that ‘‘[s]ection 22a-19, which authorizes any person to
intervene in any administrative proceeding and to raise
therein environmental issues must be read in connection
with the legislation which defines the authority of
the particular administrative agency. Section 22a-19 is
not intended to expand the jurisdictional authority of
an administrative body whenever an intervenor raises
environmental issues. Thus, an inland wetland agency
is limited to considering only environmental matters
which impact on inland wetlands. Other environmental
impacts must be raised before other appropriate administrative
bodies, if any, or in their absence by the institution
of an independent action pursuant to § 22a-16. . . .
[G]eneral environmental matters [involving air and
noise pollution and environmental problems created by
increased traffic] were not relevant to the proceedings
before [the environmental protection board] and therefore
its refusal to entertain comment or evidence of a
noninland wetland nature was appropriate.''18 Id.,
250–51.

Shortly thereafter, we issued our decision in Middletown,
in which we employed similar logic to affirm the
trial court's judgment that the plaintiffs lacked standing
under § 22a-16 to seek an injunctive remedy against
the defendants in the Superior Court. The Middletown
plaintiffs had sought to enjoin the defendant utility company
and its parent company from proceeding with a
plan to burn contaminated mineral oil containing polychlorinated
biphenyls (PCBs) at an electric generating
plant, even though the defendants had obtained the
approvals required for the disposal of substances containing
PCBs from the department and from the United
States Environmental Protection Agency. Middletown
v. Hartford Electric Light Co., supra, 192 Conn. 593–94.
The trial court dismissed the complaint, and the plaintiffs
appealed to this court from the judgment of dismissal.
Id., 594.

The plaintiffs in Middletown claimed that they had
standing under § 22a-16 to seek an injunction to preclude
the proposed burning of oils containing PCBs on
the basis of the defendants' ‘‘failure to obtain a variety
of approvals and permits'' including a water discharge
permit under General Statutes § 22a-430. Id., 595. We
rejected the plaintiffs' claim in reliance on our decision
in Connecticut Fund for the Environment, Inc. Id., 597.
We first noted that § 22a-16 ‘‘permits any private
party, including a municipality, to seek injunctive relief
‘for the protection of the public trust in the air, water
and other natural resources of the state from unreasonable
pollution, impairment or destruction.' We have
recently concluded, however . . . that invocation of
[CEPA] is not an open sesame for standing to raise
environmental claims with regard to any and all environmental
legislation. In Connecticut Fund for the Environment,
Inc. v. Stamford, [supra, 192 Conn. 247], we
held that § 22a-19 of [CEPA], which permits any person,
on the filing of a verified pleading, to intervene in any
administrative proceeding and to raise therein environmental
issues ‘must be read in connection with the
legislation which defines the authority of the particular
administrative agency.' '' Middletown v. Hartford Electric
Light Co., supra, 192 Conn. 596–97. We then stated
that the same principle that had informed our holding
in Connecticut Fund for the Environment, Inc.,
namely, that § 22a-19 did not expand the jurisdictional
authority of an administrative body whenever an intervenor
raised environmental issues, was applicable ‘‘to
bar the [plaintiff] city's standing under the licensing
statutes. The trial court was therefore correct in concluding
that § 22a-16 did not provide the plaintiffs with
standing under any statute other than [CEPA] itself.''
Id., 597.

We had no further occasion to address the issue of
whether § 22a-16 confers standing to bring claims of
unreasonable pollution under the licensing statutes
until Fish II, where we affirmed our holding in Middletown.
Fish II, supra, 254 Conn. 24. After reviewing
our reasoning in Middletown, we concluded: ‘‘[T]he
plaintiffs seek to use § 22a-16 to afford standing to raise
permitting claims governed by § 22a-430. The department,
however, has statutory and regulatory authority
to issue water discharge permits, to determine the completeness
of renewal applications and to pursue any
one of several remedies if it concludes that a discharge
is creating unreasonable pollution or is occurring without
a valid permit. . . . Thus, we conclude that the
plaintiffs lack standing to bring this action pursuant to
§ 22a-16.'' (Citation omitted.) Fish II, supra, 254
Conn. 32–34.

In the present case, we also conclude that the plaintiffs
lack standing to bring their complaint pursuant to
§ 22a-16. We have stated that ‘‘one of the basic purposes
of [CEPA] is to give persons standing to bring actions
to protect the environment and standing is conferred
only to protect the natural resources of the state from
pollution or destruction.'' Mystic Marinelife Aquarium,
Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726
(1978). Yet, here, the plaintiffs' claim of unreasonable
pollution is based upon allegations that: (1) the 1992
permit became invalid on December 14, 1997, the day
it expired, and has remained invalid since that time
because the facility was not engaged in operations of
a continuing nature as contemplated under § 4-182a (b)
when the permit renewal application was filed; and (2)
the issuance of the ‘‘emergency'' authorization violated
the letter and spirit of § 22a-6k because it was one in
a series of authorizations routinely issued to Northeast
over a period of years and, hence, did not address an
‘‘imminent threat to human health or the environment
. . . .'' General Statutes § 22a-6k (a) (1). Allegations of
improper decisions by the commissioner for failure to
comply with the statutory requirements regarding permit
renewal proceedings and emergency authorizations
cannot be construed as anything other than a licensing
claim under § 22a-430.19 Accordingly, following our
established precedent in Middletown and Fish II, we
agree with the trial court's conclusion that the plaintiffs
lack standing under § 22a-16 to bring their claim directly
in the Superior Court. As we stated in Fish II, ‘‘[t]he
plaintiffs . . . cannot use § 22a-16 as an ‘open sesame'
to litigate environmental issues that are governed by
§ 22a-430, and which clearly have been placed within
the exclusive domain of the department. Middletown
v. Hartford Electric Light Co., supra, 192 Conn. 597.''
Fish II, supra, 254 Conn. 34.

The plaintiffs claim that we should reevaluate our
present interpretation of § 22a-16 with respect to
actions brought pursuant to the licensing statutes,
because the dissent in Nizzardo v. State Traffic Commission,
259 Conn. 131, 170, 788 A.2d 1158 (2002) (Borden,
J., dissenting), suggests that the time has arrived
for this court to revisit the Middletown holding. We
disagree.

The dissent in Nizzardo raised the question of
whether standing under § 22a-16 had been construed
too narrowly in Middletown, stating that ‘‘it was selfcontradictory
to hold, as we did in Middletown, that
one has standing under § 22a-16 to raise environmental
concerns only under [CEPA] itself, and that, when one
attempts to bring such an independent action, one has
no standing to do so. In other words, it is difficult to
see why the action that was held to be without standing
in Middletown was not an action under [CEPA] itself.

The majority [in Nizzardo], in relying on and reaffirming
the holding of Middletown, does not explain
this self-contradiction.'' Nizzardo v. State Traffic Commission,
supra, 259 Conn. 195 (Borden, J., dissenting).
The majority in Nizzardo concluded, and we continue
to maintain, that the claim in Middletown was
brought under the licensing statutes. Id., 152–53.
Indeed, it was precisely because the plaintiffs claimed
that the defendants had failed to obtain required permits
that we were persuaded in Middletown that the plaintiffs
lacked standing under § 22a-16. Middletown v.
Hartford Electric Light Co., supra, 192 Conn. 596.
Moreover, construing the plaintiffs' claim of an
invalid permit and emergency authorization as an independent
claim of unreasonable pollution under § 22a-
16 would effectively remove from the department and
give to the court the department's authority under § 22a-
430 to make decisions regarding permit applications.
It is not our function to take such a step; that determination
rests with the legislature.

The plaintiffs next contend that the commissioner
has instituted numerous actions pursuant to § 22a-16
in which this court has held that unlawful activities
that occur in the absence of permits or in violation
of statutes, regulations and abatement orders create
unreasonable pollution under CEPA. See Keeney v. Old
Saybrook, 237 Conn. 135, 140–41, 676 A.2d 795 (1996)
(claim alleged unreasonable pollution of state waters
for town's failure to comply with pollution abatement
orders); Commissioner of Environmental Protection
v. Connecticut Building Wrecking Co., 227 Conn. 175,
190, 629 A.2d 1116 (1993) (claim alleged unreasonable
pollution for failure to obtain permit for operation of
solid waste facility that generated leachate, thereby
degrading groundwater); Keeney v. L& S Construction,
226 Conn. 205, 209, 626 A.2d 1299 (1993) (claim alleged
unreasonable pollution for depositing construction
debris in close proximity to area water supply in
absence of permit). In the cases cited by the plaintiffs,
however, the claims of unreasonable pollution were
directed primarily to the polluting activity itself, and
not, as here, to the validity of an existing permit or
authorization, a condition that does not directly
threaten the public trust in the air, water and other
natural resources of the state under § 22a-16.
We stated in Keeney v. Old Saybrook, supra, 237
Conn. 161, which the plaintiffs themselves cite, that ‘‘to
establish a prima facie case under § 22a-16, the plaintiff
must establish that the conduct of the defendant, acting
alone, or in combination with others, has, or is reasonably
likely unreasonably to pollute . . . the public trust
in the . . . water of the state.'' (Internal quotation
marks omitted.) Allegations of a flawed licensing proceeding
do not meet that test.20 As the defendants persuasively
argue, a claim under CEPA that conduct
causes unreasonable pollution is not the same as a claim
that conduct fails to comply with the requirements of
other environmental statutes.21 To illustrate the point,
the fact that conduct may be permitted under the relevant
environmental statute does not preclude a claim
that the activity causes unreasonable pollution under
CEPA, as when the alleged pollution exceeds the
amount approved in the permit. Conversely, a claim that
conduct is not properly authorized does not necessarily
establish that the conduct causes unreasonable pollution
under CEPA. Accordingly, the issues raised in the
cases cited by the plaintiffs are different in kind from
the issue raised here.

The plaintiffs also attempt to draw a distinction
between the claim of unreasonable pollution in Fish II
and their present claim of unreasonable pollution. They
assert that the claim in Fish II related to the validity
of the permit, whereas the claim in this case alleges
serious ‘‘ongoing pollution'' that is unlawful because it
is ‘‘unpermitted.'' We do not agree that the present claim
of ‘‘ongoing pollution'' differs in any significant respect
from the claim in Fish II of an invalid permit. The
plaintiffs in this case always have characterized their
claim of ‘‘ongoing pollution'' as a claim of unreasonable
pollution on the ground that Millstone has been
operating without a valid permit and emergency authorization.

22 Moreover, the claim of ‘‘ongoing pollution''
cannot be considered in isolation, because it would
not, without more, be actionable under § 22a-16, which
allows claims to be brought only for protection from
‘‘unreasonable pollution . . . .'' (Emphasis added.)
General Statutes § 22a-16. Accordingly, we reject the
argument that the claim of unreasonable pollution in
Fish II is distinguishable from the claim of ‘‘ongoing''
unreasonable pollution in the present case.
The plaintiffs next contend that they have standing to
bring their claim under § 22a-16 because the legislature
contemplated that issues of pollution in violation of the
public trust might implicate regulatory or administrative
proceedings. They argue that, pursuant to General
Statutes § 22a-18, the court may, but need not, remand
the parties to administrative, licensing or other proceedings
to determine the legality of the defendants' conduct.
The Superior Court thus is empowered to
determine the legality of that conduct, separate and
apart from the agency's own proceedings. We do not
agree that the plaintiffs' have standing to raise their
claim of an invalid permit pursuant to §§ 22a-16 and
22a-18.
General Statutes § 22a-18 provides in relevant part:
‘‘(b) If administrative, licensing or other such proceedings
are required or available to determine the legality
of the defendant's conduct, the court in its discretion
may remand the parties to such proceedings. . . .''23
(Emphasis added.) We interpreted § 22a-16 in conjunction
with § 22a-18 in Waterbury v. Washington, 260
Conn. 506, 800 A.2d 1102 (2002). In that case, the plaintiff
city of Waterbury brought an action seeking a judgment
declaring, inter alia, that it had not unreasonably
polluted, impaired or destroyed the public trust, as provided
in § 22a-16, by diverting water from the Shepaug
River pursuant to a 1921 agreement with the town of
Washington to increase Waterbury's public water supply.
Id., 511–12. The defendants counterclaimed, alleging,
inter alia, that the city's excessive diversion of the
water had violated the act and breached the 1921
agreement. Id., 511, 522. The trial court found for the
defendants on their counterclaim. Id., 519. The city
appealed, asserting that the trial court lacked subject
matter jurisdiction over the water diversion claim
because the defendants had failed to exhaust their
administrative remedies under the ‘‘minimum flow statutes,''
General Statutes §§ 26-141a through 26-141c.
Id., 525.

On appeal, the city argued that the defendants' complaint
was premised on the lack of flow in the Shepaug
River and that, because the rate of flow is governed by
the minimum flow statute, which is enforced by the
department, the defendants were precluded under our
holdings in Middletown, Fish Unlimited v. Northeast
Utilities Service Co., 254 Conn. 1, 756 A.2d 262 (2000)
(Fish I), and Fish II requiring exhaustion of administrative
remedies from bringing their action to the court
until the department had addressed the issue. Waterbury
v. Washington, supra, 260 Conn. 528, 538. We
nonetheless concluded in Waterbury that, under § 22a-
18, the court may, in its discretion, remand the parties
to administrative proceedings that might be available
to determine the legality of a defendant's conduct, and
that the defendants need not exhaust their administrative
remedies before bringing an independent action in
the Superior Court pursuant to § 22a-16. Id., 537, 545.
We also stated that, under the doctrine of ‘‘primary
jurisdiction, which is embodied by § 22a-18 of CEPA,
the court has discretion, and in certain cases should
refer the case, or certain aspects of it, to the administrative
agency, yet retain jurisdiction for further action, if
appropriate, under that section.''24 Id., 546.

The present case is distinguishable from Waterbury.
In that case, the defendants' claim of excessive diversion
of water was an allegation of direct harm to the
environment. The court specifically observed: ‘‘To
resolve the question of whether Waterbury's diversion
of water from the Shepaug River violated CEPA, the
trial court [would be] required to determine whether
Waterbury's diversion was of such magnitude that it
constituted, not merely an impairment, but an unreasonable
impairment of the public trust in the river as a
natural resource in violation of § 22a-16.'' Id., 522–23.
Here, by contrast, the plaintiffs did not make an allegation
of direct harm to the environment, but alleged
unlawful and unreasonable pollution on the ground that
Millstone is operating without a valid permit and emergency
authorization. Under the reasoning in Middletown
and Fish II, that claim cannot be brought directly
in the Superior Court because it is a permitting claim.
Accordingly, the plaintiffs cannot prevail on their argument
that §§ 22a-16 and 22a-18 provide them with standing
to bring their action directly in the Superior Court,
as claims brought under the licensing statutes do not
involve conduct that directly causes pollution.

In reaching this conclusion, we note that, in Waterbury,
we agreed with the plaintiff's characterization of
our decisions in Middletown, Fish I and Fish II as
being based on a theory of exhaustion of administrative
remedies.25 Waterbury v. Washington, supra, 260 Conn.
538–39. After describing those cases as implicating the
exhaustion doctrine, we held in Waterbury that, to the
extent that the Waterbury holding conflicted with our
previous decisions applying the exhaustion doctrine to
an independent action under § 22a-16, namely, Middletown,
Fish I and Fish II, we overruled them. Id., 545.

We now clarify our decision in Waterbury to recognize
that Middletown and Fish II involved claims that
the plaintiffs lacked standing because the court did not
have jurisdiction ‘‘to litigate environmental issues that
are governed by § 22a-430, and which clearly have been
placed within the exclusive domain of the department.''
26 Fish II, supra, 254 Conn. 34; Middletown v.
Hartford Electric Light Co., supra, 192 Conn. 597. We
also note, however, that Waterbury properly characterized
our ruling in Fish I as based on the exhaustion
doctrine. In Fish I, we concluded that the trial court
should have dismissed the case for lack of standing
under § 22a-16 and remanded the matter to the department
for an initial determination before bringing their
action to the court, because the department had authority
to grant the requested injunctive relief during the
permit renewal proceeding in which Fish Unlimited had
intervened. Fish I, supra, 254 Conn. 17, 21.

Although this clarification does not affect our holding
in Waterbury that the exhaustion doctrine does not
apply where the legislature determines that a court may
exercise jurisdiction pursuant to § 22a-16, despite the
availability of administrative procedures, there must be
no possible confusion as to our reasoning in Middletown
and Fish II, because we rely on those two cases
as precedent in the current matter.27

With each new case, we have continued to refine the
law on standing under § 22a-16. We have determined
that a plaintiff has standing to bring an independent
action under § 22a-16 where an administrative body
does not have jurisdiction to consider the environmental
issues raised by the parties. See Connecticut Fund
for the Environment, Inc. v. Stamford, supra, 192 Conn.
250; Connecticut Water Co. v. Beausoleil, 204 Conn. 38,
46, 526 A.2d 1329 (1987); Nizzardo v. State Traffic
Commission, 259 Conn. 131, 155, 788 A.2d 1158 (2002);
Fort Trumbull Conservancy, LLC v. Alves, supra, 262
Conn. 486–87. We also have concluded that where an
administrative body has been granted authority to adjudicate
conduct with adverse environmental effects, the
exhaustion doctrine does not apply. See Waterbury v.
Washington, supra, 260 Conn. 537. In cases such as
Waterbury, an independent action may be brought
directly in the Superior Court, but the court has discre-
tion to retain jurisdiction and remand the matter for
administrative proceedings. Id., 546. Where the alleged
conduct involves a permitting claim, however, there is
no standing pursuant to § 22a-16 to bring the claim
directly in the Superior Court and the claim must be
resolved under the provisions of the appropriate licensing
statutes. Fish II, supra, 254 Conn. 21; Middletown
v. Hartford Electric Light Co., supra, 192 Conn. 591.

The present claim falls within this last category.
Our conclusion that the plaintiffs lack standing to
bring their claim under § 22a-16 is dispositive, and precludes
our consideration of their remaining claims that
the trial court improperly relied on the exhaustion doctrine
and improperly conducted proceedings ‘‘prejudicial
to the administration of justice.'' We do not reach
the plaintiffs' claim that the trial court improperly
denied their application for a temporary injunction for
the same reason.