Week of September 29

Welcome to CT Law of the Land. Developments in the law which can impact the state and municipal agency approval process for land use applications in Connecticut happen on almost a daily basis.  These can range from important court decisions, to legislative changes, all of which can dramatically impact the approval and review process.  On this page we will try to highlight some of those changes that might be of interest to our clients and prospective clients.  We invite you to check back regularly to receive potentially important tips.

Posted by: Matthew Stone

In response to an act of illegal clear-cutting of roughly three acres of a Connecticut state forest, the offending company and the Commissioner of the Department of Energy and Environmental Protection (DEEP) entered into a consent order covering remediation plans for the forest. Dissatisfied with the requirements in the consent order, a local citizens’ environmental group sued the DEEP Commissioner and the Attorney General (AG) for, essentially, failing to take action that would sufficiently restore the forest. Berkshire-Litchfield Environmental Council, Inc. v. Daniel Esty et al., Superior Court at Hartford, No. LND CV 13-6041645-S, Land Use Litigation Docket, Memorandum Filed July 10, 2014.

The plaintiff alleged that the consent order was void because the only action that the DEEP Commissioner was statutorily authorized to take under these circumstances was to refer the matter to the AG for a civil action. In effect, according to the plaintiff, because the violation took place on state land, the Commissioner could not issue a consent order to remedy the violation. After reviewing the case law and the statutory scheme, the court found that the DEEP Commissioner has a full suite of enforcement tools at its discretion. Referral to the AG is one of those tools, but is not the only remedy, and which enforcement tool to use for a particular matter is at the Commissioner’s discretion.

The takeaways from this case are that consent orders are a legitimate exercise of the DEEP Commissioner’s enforcement powers, the Commissioner has broad discretion for what requirements to include in consent orders, and the Commissioner may, but is not required to, refer certain matters to the AG for further action.


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