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NOT ANOTHER POWER PLANT v. CONNECTICUT SITING COUNCIL—
CONCURRENCE AND DISSENT
ECKER, J., with whom D’AURIA, J., joins, concurring
in part and dissenting in part. I agree with parts I, II A,
and II B of the majority opinion, in which the majority
concludes that the plaintiff, Not Another Power Plant,
has standing to bring this appeal and did not waive its
claim that the trial court incorrectly determined that
the refusal of the named defendant, the Connecticut
Siting Council (council), to consider the environmental
impact of the future gas pipeline was legally erroneous,
and that the council proceeded under the legally errone-
ous belief that the relevant provisions of the Public
Utility Environmental Standards Act (act), General Stat-
utes § 16-50g et seq., precluded it from considering the
environmental impact of the future gas pipeline when
balancing the public benefit of the proposed electric
generating facility against the harm that it will cause
to the environment. Unlike the majority, however, I
believe that this latter holding requires us to reverse
the judgment of the trial court and to remand the pres-
ent case to that court with direction to remand it to
the council to reconsider its approval of the application
filed by the defendant NTE Connecticut, LLC (NTE),
in light of its discretion to consider the potential envi-
ronmental impact of the future gas pipeline. For that
reason, I respectfully dissent in part.
The majority correctly observes that General Statutes
§ 4-183 (j) (6) requires a court to affirm an agency deci-
sion unless it finds ‘‘ ‘that substantial rights of the person
appealing have been prejudiced because the administra-
tive findings, inferences, conclusions, or decisions are
. . . arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discre-
tion.’ ’’1 Part II B of the majority opinion. My agreement
with the majority opinion, as I stated, also includes the
conclusion that the council erroneously construed the
act to prohibit it from considering the potential environ-
mental impact of the gas pipeline in the underlying
proceedings. That is, the council reached a decision in
this matter while laboring under the legally mistaken
understanding that it could not exercise its discretion
to deny or defer consideration of the pending applica-
tion on the basis of the cumulative environmental
impact of the electric generating facility and the future
gas pipeline on which the operation of that facility will
depend. To the contrary, as the majority concludes,
‘‘the act did not prohibit the council from considering
an interdependent facility that does not yet exist
[namely, the pipeline] when balancing the public benefit
that will be provided by a proposed facility against the
harm that it will cause to the environment.’’ Id.
My agreement with the majority ends there because,
in my view, the council’s ‘‘failure to exercise its discre-
tion constituted an abuse of discretion.’’ State v. Martin,
201 Conn. 74, 88, 513 A.2d 116 (1986); see also Mead-
owbrook Center, Inc. v. Buchman, 328 Conn. 586, 609,
181 A.3d 550 (2018) (remand for hearing was appro-
priate ‘‘because the trial court improperly failed to exer-
cise its discretion’’ (internal quotation marks omitted));
Costello v. Goldstein & Peck, P.C., 321 Conn. 244, 256,
137 A.3d 748 (2016) (‘‘the court’s failure to recognize
its authority to act constituted an abuse of discretion’’).
When an administrative agency does not recognize or
exercise its discretion due to a misinterpretation of a
rule or statute, it abuses that discretion. In other words,
an agency, ‘‘vested with discretion, abuses that discre-
tion when it behaves as if it has no other choice than
the one it has taken, or when it makes a decision for
which there is not adequate support.’’ Bennington
Housing Authority v. Bush, 182 Vt. 133, 139, 933 A.2d
207 (2007); see also Fisher v. Commissioner for Inter-
nal Revenue, 45 F.3d 396, 397 (10th Cir. 1995) (tax
commissioner ‘‘failed to demonstrate that she had exer-
cised her discretion and thereby abused that discre-
tion’’); United States ex rel. Adel v. Shaughnessy, 183
F.2d 371, 372 (2d Cir. 1950) (‘‘[t]he courts cannot review
the exercise of such discretion; they can interfere only
when there has been a clear abuse of discretion or a
clear failure to exercise discretion’’ (footnote omitted));
Litterer v. Judge, 644 N.W.2d 357, 362 (Iowa 2002) (‘‘an
agency that has authority to act but fails to exercise
that authority based [on] a false belief that there is
no such authority abuses its discretion’’); Clark Fork
Coalition v. Dept. of Environmental Quality, 347 Mont.
197, 209, 197 P.3d 482 (2008) (‘‘when an agency, because
of a misinterpretation of its rule, does not exercise its
discretion it abuses its discretion’’); 3 H. Koch & R.
Murphy, Administrative Law and Practice (3d Ed. 2021)
§ 9:27 [4] (‘‘[f]ailure to exercise discretion might be an
abuse of discretion’’); 73A C.J.S. 322, Public Administra-
tive Law and Procedure § 416 (2004) (‘‘[a]n agency that
has authority to act but fails to exercise that authority
based upon a false belief that there is no such authority
abuses its discretion’’).
The majority concludes that, notwithstanding the
council’s failure to exercise its discretion, the council
did not arbitrarily and capriciously refuse to consider
the potential environmental impact of the gas pipeline
because that impact will be considered in a future pro-
ceeding at which ‘‘the council must find either that the
pipeline will have no significant adverse environmental
impact or that its impact, considered together with the
impact of other existing facilities, is outweighed by the
public benefit that it will provide.’’ Part II C of the
majority opinion. It is true that the council could have
arrived at the very same result in the proper exercise
of its discretion. But that is not the standard by which
error is measured in this context. Although the council
could have arrived at the same conclusion had it been
aware of its discretionary authority, and nonetheless
decided to defer consideration of the pipeline’s environ-
mental impact until a future proceeding on an applica-
tion seeking a certificate for that pipeline, it also could
have decided to consider the impact of the two interre-
lated projects in a single proceeding. That is the point.
The council had the discretion to choose either course,
but it was not aware of its discretion and erroneously
believed that it had no choice.
We do not know what the council would have chosen
to do if it had exercised its discretion, and we must
remand the matter to the council so that it may decide
whether to consider the environmental impact of the
future gas pipeline when weighing the public benefit
of the proposed electric generating facility against its
probable environmental impact under § 16-50g.2 See
Miami Nation of Indians of Indiana, Inc. v. United
States Dept. of the Interior, 255 F.3d 342, 350 (7th Cir.
2001) (administrative agency’s ‘‘[f]ailure to exercise dis-
cretion, however uncanalized that discretion, is an
abuse of discretion,’’ and ‘‘the remedy is to remand for
the exercise of that discretion’’), cert. denied sub nom.
Miami Nation of Indians of Indiana, Inc. v. Norton,
534 U.S. 1129, 122 S. Ct. 1067, 151 L. Ed. 2d 970 (2002);
United States ex rel. Adel v. Shaughnessy, supra, 183
F.2d 372 n.3 (‘‘[i]n such a case, the court can do no
more than to require that the discretion be exercised,
one way or the other’’); Davenport v. Newcomb, 820
N.W.2d 882, 892 (Iowa App. 2012) (‘‘[w]hen there is error
based on an agency’s failure to exercise discretion, the
remedy is to reverse and remand to the agency for
consideration’’). Accordingly, I would reverse the judg-
ment of the trial court with direction to remand the
case to the council for further proceedings consistent
with this opinion.
1
As the majority states, de novo review is appropriate here because the
agency’s interpretation of the relevant statutory provisions is not ‘‘time-
tested . . . .’’ (Internal quotation marks omitted.) Part II B of the major-
ity opinion.
2
The majority acknowledges that, ‘‘ordinarily, an agency’s failure to
exercise its discretion because of a mistaken understanding of the law
constitutes an abuse of discretion.’’ Footnote 14 of the majority opinion. It
concludes nevertheless that a remand is not required under the specific
circumstances of the present case because ‘‘the result [of a remand] would
be the functional equivalent of the situation as it now stands: the cumulative
environmental impact of the electric generating facility and the pipeline
would be considered during the proceedings on the pipeline unless it were
determined that the pipeline will have no substantial adverse environmental
effect and, if the pipeline were not approved, NTE would be unable to
complete the electric generating plant and the site would be restored.’’ Id.
Perhaps, but perhaps not. As the majority observes, the council would have
various options on remand, and its selection among those options (or its
choice of some other option that we have not identified) may, as a practical
or legal matter, significantly change ‘‘the situation as it now stands’’ in one
way or another. Id. Timing and sequencing can matter a great deal in matters
of regulatory approval. If that were not true, then the parties in the present
case presumably would not have a dispute over the outcome of this appeal
because it would make no difference to them whether the council’s review
of the cumulative environmental impact comes now or in a future proceed-
ing. The bottom line is that the council, and not this court, possesses the
information, the expertise, and the legal obligation to exercise its best
judgment based on its own careful assessment of all of the pertinent consider-
ations permitted by law—including, if it so chooses, the factor that the
council mistakenly believed was off limits in the prior proceeding, namely,
the environmental impact of the future gas pipeline. This court is ill-equipped
to hypothesize what the council will do on remand or to speculate whether
the consequences that flow from the agency’s future determination, after
remand, will be the ‘‘substantial equivalent’’ of the situation ‘‘as it now
stands’’ pursuant to a legally erroneous prior decision. Id.; cf. Commissioner
of Emergency Services & Public Protection v. Freedom of Information
Commission, 330 Conn. 372, 379, 194 A.3d 759 (2018) (‘‘Under the [Uniform
Administrative Procedure Act], it is [not] the function . . . of this court to
retry the case or to substitute its judgment for that of the administrative
agency. . . . Even for conclusions of law, [t]he court’s ultimate duty is
only to decide whether, in light of the evidence, the [agency] has acted
unreasonably, arbitrarily, illegally, or in abuse of its discretion.’’ (Internal
quotation marks omitted.))