Citizen Lacks Standing To Challenge Nuclear Plant's Permits in State Court
Lots of ink has been spilled of late about litigants trying to use the courts to achieve certain results regarding global warming. And much has been written about nuclear power in the wake of the tragedy in Japan.
So you can imagine that my eyebrows arched as I thumbed through my "to read" pile and discovered a decision from the Connecticut Supreme Court addressing a citizen's challenge to a nuclear plant's plan to increase its power generation, thereby increasing its discharge of radioactive waste and the discharge of warm water into Long Island Sound. The court's decision is a good reminder that plaintiffs seeking to regulate through litigation often lack the sort of personal and direct injury that give rise to standing to sue.
In Burton v. Dominion Nuclear Connecticut, Inc., No. SC 18603 (Conn. Apr. 19, 2011), the plaintiff sued to prevent the operator of the Millstone Nuclear Power Station in Waterford from implementing its plan to increase its pwer generating capacity in its Unit 3 reactor by 7%. The Plaintiff alleged that this would both increase the amount of nuclear waste released into the atmosphere, and would generate a warm-water plume in Long Island Sound that would injure the acquatic wildlife.
(The operator had applied for and received all appropriate permits, with the Nuclear Regulatory Commission issuing a safety evaluation report finding that even with the increased radioactivity, the discharge would remain within federal guidelines and the thermal plume would pose no threat to endangered or threatened species of marine life. Slip op. at 2.)
The plaintiff sued for a TRO and a permanent injunction in state court, asserting causes of action under the Connecticut Environmental Protection Act, common law public nuisance, "classical aggrievement," and violation of Connecticut's Unfair Trade Practices Act.
The trial court dismissed the claim, and the Connecticut Supreme Court affirmed.
The Connecticut Supreme Court first analyzed whether the plaintiff's claims were preempted by the federal Atomic Energy Act, concluding that one of them was. As the court explained it, the AEA reserves to the federal government the regulation of the radiological safety aspects of nuclear plants, but reserves to the states their traditional responsibility for regulating utilities. Thus, the court concluded, the trial court "had no jurisdiction to consider the plaintiff's claim regarding the increase in radioactive waste because the federal government has exclusive regulatory authority over radiation hazards and safety as well as radiological discharges from nuclear power plants." Slip op. at 4.
As for the plaintiff's claim about the thermal plume, however, that fell within the state's traditional powers and was not preempted. Accordingly, the court went on to consider the plaintiff's standing to raise these claims. The court quickly dispatched the CEPA claim, holding that because she merely challenged the result of the agency's decisionmaking, but did not allege that the discharges would result in pollution that exceeded the amount permitted under the regulatory scheme, she lacked standing to assert a CEPA claim. The court described this problem as lacking the "substantive heft" required under the CEPA to establish citizen standing.
Plaintiff relied on a prior case in which she had successfully sued to protect marine life in Long Island Sound. But the Supreme Court distinguished that case, noting that there she had pled procedural violations by the agency in its decisionmaking process. Because there were no such allegations in this case, however, and no allegations that the discharge levels would exceed established standards, the court found plaintiff's authority inapposite. Slip op. at 7.
The court then analyzed the public nuisance claim. It instructed that private individuals have no standing to bring public nuisance claims generally; that power typically is reserved to the state. The exception is where the individual has sustained injury of a different type and degree from the public at large. Here, the plaintiff alleged no special injury and, as such, lacked standing to bring a public nuisance claim. Slip op. at 8.
In Connecticut, the doctrine of "classical aggrievement" operates almost exactly like the special injury requirement of the public nuisance cause of action. The plaintiff must allege a distinct legal interest in the subject matter of the lawsuit that is different from the general public's, and must show that the agency's decision has specifically injured that interest. Slip op. at 9. Because plaintiff could not make that showing, she had no standing to bring such a claim.
Finally, the court considered the plaintiff's Hail Mary theory: violation of CUPTA. In reasoning that should resonate beyond the facts of this case, the Supreme Court reiterated that where plaintiffs plead unfair trade practices under CUTPA, they must plead a direct injury caused by the unfair trade practice. See slip op. at 9 (citing cases holding that the doctrines of remoteness and proximate causation apply to CUTPA claims). The court concluded:
We concluded that the plaintiff has failed to establish standing to bring her CUTPA claim because she does not allege harm from the increase in the temperature of the thermal plume that is not remote, indirect, or derivative. Her principal allegation is that the elevated temperature of the water will affect wildlife, fish and other aquatic organisms, which, in turn, will indirectly pose a danger to her health and affect ther ability to enjoy her recreational pursuits of swimming, boating and consuming seafood from Long Island Sound and estuary. She does not allege, however, precisely how her health will be endangered from the elevated temperature of the thermal plume or how her recreational pursuits will be affected; nor did she present evidence to that effect at the hearing on the motion to dismiss. Thus, without more specificity, it is impossible to conclude that the harm the plaintiff has alleged is direct. We therefore conclude that the trial court properly dismissed her claim of unreasonable pollution under CUTPA for lack of standing.
Slip op. at 9 (citation omitted).
