Newsletter01.30.2019

2019 Connecticut Environmental Legislative Update No. 8

by Christopher P. McCormack

Welcome to our Environmental Legislative Updates.

Throughout Connecticut’s legislative session, these updates highlight developments concerning environmental law and policy. The author prepares updates as Legislative Liaison of the Connecticut Bar Association’s Environmental Law Section. Pullman & Comley is pleased to offer them in this format to a wider audience.

As the session proceeds, early updates will alert readers to proposals on a broad range of issues concerning the environment, narrowing focus over time on bills that continue to progress, and concluding with a post-session wrap-up of bills that pass as well as noteworthy also-rans. Along the way they’ll summarize and challenge arguments pro and con, examine the policy and science behind proposals, and occasionally cast a side glance at the vicissitudes and vagaries of the process. The views expressed will be the author’s own, not necessarily those of Pullman & Comley LLC.

Questions, comments, requests and suggestions are always welcome. Please email me at cmccormack@pullcom.com.

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Today’s update begins with a confession: we give up on reporting the introduction of plastic bag, plastic straw and fracking waste ban bills. Just assume there’s at least one of each for every Legislative Update. If someone comes up with a new wrinkle, you’ll be the first to hear about it. That leaves a batch of “environmental” bills ranging widely over diverse territory - so diverse, in fact, that for once they have virtually nothing in common.

We'll start with HB 6605's proposal to amend Conn. Gen. Stat. §33-773, concerning purposes and powers of a Connecticut brownfield land bank, to clarify that if property transferred to a land bank is already designated a special taxing district, the transfer is of the real property only, but not assets and debts backed by the full faith and credit of the special taxing district. This rates high on the obscurity scale and we would encourage anyone more familiar with the land bank program than we are (which could be a good many people) to be in touch with insights about what problem this is intended to fix.

After discussing the state water plan in the last update – and the pattern of bills apparently intended to tinker with it – we present HB 6645, which proposes to approve it. The statement of purpose again refers to the concept of water as a public trust. As we’ve previously observed, however, that horse seems to be already in the barn. Since the link we provided on the latter point may have been fouled up, we’ll not only cite Conn. Gen. Stat. §22a-15, but quote the pertinent language: “It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut.” And of course that’s followed by the Section 22a-16 private right of action to protect same.

Since we’ve already seen a bill to roll the existing Green Bank into the proposed Infrastructure Bank, it is perhaps inevitable that someone would propose an Environmental Infrastructure Bank. HB 6646 would expand the Green Bank concept beyond clean energy to water, waste, recycling, resiliency, conservation, and other “environmental markets.” Now if we could just declare a public trust in waste.

Speaking of waste, looks like we’re not the only ones who’ve had it with nip bottles. The heck with deposits and returns: HB 6641 proposes to prohibit their sale altogether. To which we say amen. There’s just something unseemly about booze in airline bottles when you’re not on an airplane. If you’re going to day drink, at least do it according to Hoyle – a pint flask in a brown paper bag.

Here’s a term that’s new to us, but sounds interesting: “regenerative agriculture,” which HB 6647 proposes to promote by establishing a program (“within available appropriations,” so no prob with the budget) to improve soil health, conservation, rainwater absorption, drought resiliency and water quality.

Somewhere in the same part of the spectrum is HB 6644, which proposes to quantify the contribution of state-owned “working and natural” land to mitigate “negative air emissions” (presumably carbon), to determine “future stewardship” in light of expected changes on a fifty-year horizon, and to foster a broad range of goals including biodiversity, wildlife habitat, and contribution to “physical and mental health,” including clean air, clean water, “recreation and solace.” Commendably forward-looking and ambitious; bonus points for citing “solace” as a legislative policy priority.

In the land use area, HB 6756 would prohibit developers from counting wetlands in calculating the percentage of open space in cluster developments for purposes of incentives. Which seems to make sense because they’re undevelopable anyway, but in many cases also of limited “open space” benefit.

Much more directly in the land use sector, SB 766 proposes to normalize the expiration dates of zoning, subdivision and inland wetland approvals so that no such permit issued to one person for a given parcel shall expire until the expiration of the last such permit. Which if we have untangled the double negatives right means the expiration date of the last permit obtained would become the expiration date for all earlier ones. We applaud the logic but would miss the fun of juggling inconsistent expiration dates.

Carbon pricing again: HB 6635, for fossil fuels.

An interesting take on electric vehicles: SB 771 proposes to amend Conn. Gen. Stat. §29-252(a) so the Building Code would require EV charging facilities in new construction or projects involving substantial rehabilitation of parking areas or electrical systems. Unlike many early-session proposals, this comes with meat on the bones in the form of numbers and ratios for different types of buildings. Worth a look.

And the Bonus Legislative Update is HB 6847, which would authorize sale of cider, beer and wine via automated vending machines activated by a card issued to the patron after the permittee has verified the patron is of legal age. We confess that since commenting on a similar bill last session, we had occasion to visit an establishment run on this model – in California, naturally – and enjoyed sampling a wide variety of products as a self-directed craft beer tasting. We did observe patrons taking a less analytical approach. At any rate, the very impressive waiver form we had to sign sparks hope of a case making it to the US Supreme Court, where at least one ear should be sympathetic to litigants’ arguments that they like beer.

We hasten to assure you that the Legislative Updates are prepared under the influence of nothing other than caffeine. Comments, questions and suggestions welcome.

Professionals

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