Polymer Resources, Ltd. v. Keeney

Schaller, J., dissenting.

This appeal involves the right of a group of some 300 citizens to intervene and participate in a lawsuit that will decide whether the quality of air in their own neighborhood will be adversely affected by the emissions from a manufacturing plant operating in the immediate vicinity. Because I believe the right of these citizens to intervene in the action is supported by existing statutory and decisional law, I respectfully dissent.

I do not disagree with the majority’s statement of essential facts or its recitation of the law that applies to this case. In my view, however, the application of the law to those facts compels the conclusion that FRCE is entitled to intervene under both General Statutes § 22a-19 (a) and General Statutes §§ 52-102 and 52-107.1

I

Intervention Under General Statutes § 22a-19 (a)

At the outset, I would note that FRCE has presented a convincing case for an absolute right of intervention under General Statutes § 22a-19 (a).2 I believe that a *354fair reading of § 22a-19, against the background of strong legislative policy in favor of the right of citizens to intervene in environmental actions, indicates that FREE had an absolute right to intervene in this case. That legislative policy bears repeating: The purpose of the Environmental Protection Act “is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with ‘an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.’ General Statutes § 22a-15. It, therefore, allows a member of the general public to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action. General Statutes § 22a-19.” Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44-45, 526 A.2d 1329 (1987).

Our courts have recognized the importance of construing a statute in accordance with the legislative policy the statute was designed to implement. Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 96, 612 A.2d 1130 (1992); Chrysler Corporation v. Maiocco, 209 Conn. 579, 592, 552 A.2d 1207 (1989). This principle of construction is particularly applicable in the context of environmental legislation. Environmental statutes are remedial in nature and should be liberally construed to accomplish their purpose. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981).

*355I believe that the principle requiring that statutes be interpreted to effect the policy that the legislation seeks to achieve deserves allegiance from this court. Viewed from this perspective, the term “other proceeding” as well as the reference in § 22a-19 to judicial review should be liberally interpreted to further the legislative policy behind the Environmental Protection Act.

While the plaintiffs elected to bypass review of the administrative decision by means of a timely appeal, instead electing to bring an independent “civil rights action,” the effect of the relief sought is, at the heart of the matter, the equivalent of the judicial review that would have taken place in the course of the administrative appeal. In their “civil rights action,” the plaintiffs seek injunctive relief that would restrain the commissioner of environmental protection from enforcing restrictions on the operation of the plaintiffs facility. An administrative appeal seeking a judgment vacating the decision of the administrative hearing officer undoubtedly would have sought the same objective. In short, there is no reason why FRCE should be deprived of its absolute statutory right to intervene merely because the plaintiffs chose an indirect route to judicial review of the agency order rather than the direct route.

As the majority recognizes, not only had FRCE participated fully in both administrative proceedings leading to the present action but, in addition, FRCE had the unqualified support of the appellee commissioner of environmental protection in its effort to intervene in the present action.

II

Intervention Under General Statutes §§ 52-102 AND 52-107

While the foregoing analysis alone should vindicate FRCE’s absolute right to intervene, the case for inter*356vention as of right based on General Statutes §§ 52-102 and 52-107 is stronger. The conditions necessary to qualify for intervention as of right were set forth in State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990).3 Intervention as of right requires that (1) the application be timely, (2) the applicant claim an interest relating to the transaction that is the subject of the action, (3) the applicant show that its ability to protect that interest may as a practical matter be impaired or impeded by disposition of the action, (4) the applicant’s interest is not adequately represented by the existing parties. “Failure to meet any one of the conditions is sufficient to deny intervention as of right.” State Board of Education v. Waterbury, supra, citing NAACP v. New York, 413 U.S. 345, 369, 93 S. Ct. 2591, 37 L. Ed. 2d 648 (1973).

In the present case, the trial court determined that FRCE established the first three conditions. The court found that the only issue with respect to intervention as of right was the fourth condition. In this regard, the court concluded that the commissioner could adequately represent FRCE’s interests. In my view, the trial court’s determination squarely conflicts with this court’s decision in State Board of Education v. Waterbury, supra, and finds no support in the record.

In State Board of Education v. Waterbury, supra, the state board of education brought suit against Water*357bury seeking an order to compel Waterbury to implement an approved desegregation plan for the Maloney school. The Maloney school parent teachers organization moved to intervene as plaintiffs. The trial court, however, denied the motion because there was no reason to believe that the attorney general would not represent all citizens of the state in reaching a conclusion consistent with the United States and state constitutions. In rejecting the trial court’s reasoning, we held that “[t]he court’s expressed concern for the entire citizenry of Connecticut misses the significance of the appellants’ special interest in this case. That interest may, at times, compete with the interests of the state board of education, the commissioner of education and ‘all the other citizens’ of Connecticut. . . . [The parents] have ‘more parochial interests’. . . .’’(Emphasis added.) Id., 73-74.

A similar analysis applies to the present case. Here, FRCE has asserted a parochial and specialized interest; its membership is directly affected by the alleged emission of various substances and odors. FRCE thus has a distinct parochial interest — in contrast to the commissioner’s broader interest in representing all the citizens of Connecticut. The significant difference between these interests raises the specter of conflict to the extent that the commissioner may not be an adequate representative of FRCE’s interests. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S. Ct. 630, 30 L. Ed. 2d 686 (1972) (to satisfy rule that existing party cannot adequately represent the applicant, the applicant must show “that representation of his interest may be inadequate; and the burden of making that showing should be treated as minimal” [emphasis added]).4

*358Apart from the fact that the trial court’s decision conflicts with the decision in State Board of Education v. Waterbury, supra, it is clear that the trial court failed to consider the overarching fact that the commissioner fully supported FRCE’s intervention. The commissioner — the very party responsible for enforcing the Environmental Protection Act and providing the representation-urged the court to consider the need for the additional representation. Counsel for the commissioner argued that “concerned as we may be about the health of the citizens, we don’t live there. And [we] don’t think anybody else can substitute an interest for the people who are in fact suffering the effects that this case is about. And for that reason, [we] think it’s entirely appropriate that [FRCE] be permitted to intervene.”5 The commissioner’s position, of itself, offers a compelling reason to grant FRCE’s motion for intervention.

Next, the trial court failed to give any consideration to the active role played by FRCE in the administrative proceedings that gave rise to this action. After the first administrative hearing, the commissioner found that the plaintiff’s facility created a nuisance and unreasonably interfered with the community’s enjoyment of life. Following this order, the plaintiff entered into a consent order with the commissioner. FRCE objected to the order. By doing so, FRCE revealed that its interests do not necessarily coincide with those of the commissioner.

In the second administrative proceeding, the commissioner issued an order finding that the plaintiffs’ *359emissions caused or were likely to cause damage to the public health. The commissioner further issued restrictions on the operation of the facility. Again, FRCE indicated its genuine interest in the litigation when it requested the commissioner to include additional requirements to the final order. Through these efforts, FRCE displayed an independent and serious interest in the operation of the Polymer facility. In denying FRCE’s motion for intervention, the trial court gave no consideration to FRCE’s vigilance in the course of the administrative proceedings.6

Finally, the trial court completely overlooked the powerfully expressed legislative intent of the Environmental Protection Act asserting the right of citizen participation in matters that directly affect their own environment. Here, FRCE has a direct personal interest of an immediate nature in the outcome of the controversy. That interest was fully recognized in the administrative proceedings and should be acknowledged by this court. Principles of fairness and environmental concern demand that result.

I believe that the trial court acted improperly in denying FRCE the right of intervention in this case. I would reverse the trial court order denying intervention and remand the case for further proceedings.

For the foregoing reasons, I respectfully dissent.

FRCE also cites Practice Book §§99 and 100 as grounds for intervention as of right. As did the majority, I have relied on the provisions in the General Statutes as well as those in the Practice Book.

I note that the plaintiffs have raised for the first time on appeal the argument that General Statutes § 22a-19 does not provide FRCE with a right of intervention in this case because the present action is a “civil rights action,” *354not an administrative appeal. This issue was never raised before the trial court nor was it presented to this court as an alternate ground of decision. The issue was first raised in its brief. It is well settled that only in the most exceptional circumstances will an appellate court consider a claim that was not raised in the trial court. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Board of Education v. Local 1282, 31 Conn. App. 629, 633-34, 626 A.2d 1314 (1993).

In State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990), this court drew on case law interpreting the intervention as of right provision of the Federal Rules of Civil Procedure; e.g., United States v. Board of Education, 88 F.R.D. 679 (1981); and concluded that “even under these [federal] standards, we find that the appellants here qualify for intervention as of right.” It is unclear whether this court has expressly adopted this four part analysis in all cases involving intervention as of right under General Statutes §§ 52-102 and 52-107 and Practice Book §§ 99 and 100. Certainly, the four part analysis articulated in United States v. Board of Education, supra, offers a convenient and fair framework for analysis.

7C C. Wright & A. Miller, Federal Practice and Procedure (2d Ed. 1986) § 1909, p. 346, summarized federal law regarding an applicant’s burden of showing inadequate representation as follows: “[IJnterests may be different without being adverse but it has been increasingly recognized in recent *358cases that interests need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may be inadequate. . . . A discriminating appraisal of the circumstances of the particular case is required, but since the rule is satisfied if there is a serious possibility that the representation may be inadequate, all reasonable doubts should be resolved in favor of allowing the absentee, who has an interest different from that of any existing party, to intervene so that he may be heard in his own behalf.” (Internal quotation marks omitted.)

Additional support for FRCE’s intervention came from the town of Farmington, which was also barred from intervening.

In fact, notwithstanding its consent to certain restrictions, Polymer objected to the restrictions and obtained an ex parte order restraining the commissioner from enforcing the restrictions.