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Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
JEFFERSON SOLAR, LLC v. DEPARTMENT
OF ENERGY AND ENVIRONMENTAL
PROTECTION ET AL.
(AC 45630)
Bright, C. J., and Cradle and Harper, Js.
Syllabus
Pursuant to statute (§ 16-244z (a) (1) (C)), the state Department of Energy
and Environmental Protection (department) is required ‘‘to develop pro-
gram requirements and tariff proposals for shared clean energy facilities’’
subject to the approval of the state Public Utilities Regulatory Agency
(PURA).
Pursuant further to statute (§ 4-176 (a)), any person may petition an agency
for a declaratory ruling as to the applicability to specified circumstances
of a provision of the General Statutes, a regulation, or a final decision
on a matter within the jurisdiction of the agency.
The plaintiff, a renewable energy developer, brought an action for a declara-
tory judgment pursuant to statute (§ 4-175), seeking to have the Superior
Court issue a ruling as to whether a bid submitted by the defendant F
Co. in response to a 2020 request for proposals for shared clean energy
facilities satisfied a site control program requirement developed by the
defendant department pursuant to § 16-244z (a) (1) (C). I Co., an electric
company, had issued the request for proposals seeking bids for shared
clean energy facility projects in its service territory, and the plaintiff and
F Co. submitted bids to I Co. Bidders were required by the department’s
program requirements to show that they had control of the generation
site or an unconditional right to acquire control or an unconditional
option agreement to purchase or lease the site. F Co.’s bid, which
contained an option to lease agreement, was selected by I Co. and was
ultimately approved by PURA. The plaintiff petitioned the Commissioner
of Energy and Environmental Protection to issue a declaratory ruling
stating that the department erred in concluding that F Co.’s bid satisfied
the site control program requirement and that the department’s failure
to remove the bid from the rankings was arbitrary and capricious. The
commissioner declined to issue the ruling, stating that the plaintiff failed
to identify any statute, regulation or final decision of the department
to serve as a basis for the declaratory ruling and that the department
lacked the authority to issue such a ruling on the basis of the specified
circumstances laid out in the petition. The plaintiff thereafter initiated
the underlying declaratory judgment action pursuant to the Uniform
Administrative Procedure Act (UAPA) (§ 4-166 et seq.). The department
filed a motion to dismiss, contending that no statute, final decision, or
regulation interfered with the plaintiff’s legal rights. The trial court
granted the department’s motion, concluding that the department’s
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
review of F Co.’s bid was not a final decision, that the program require-
ments pursuant to § 16-244z were neither General Statutes nor regula-
tions, and that it could not consider the program requirements pursuant
to statute (§ 16-35), which barred appeals from PURA energy procure-
ment processes. On the plaintiff’s appeal to this court, held that the trial
court properly dismissed the plaintiff’s action seeking a declaratory
judgment under § 4-175, as the plaintiff’s requested ruling did not ask
the court to determine whether a regulation was valid or to determine
the application to specified circumstances of a provision of a regulation,
a statute, or a final decision: the legislature did not intend for the
department’s program requirements pursuant to § 16-244z (a) (1) (C) to
be regulations subject to the rule-making process under the UAPA, as
the language of that statute did not direct the department to establish
regulations as the legislature expressly has done in other sections of
the same chapter; moreover, the plaintiff did not have a right to judicial
review, as the legislature directed the department to develop the program
requirements under § 16-244z for PURA’s approval, which implicated
§ 16-35, and that statute expressly provided that such procedures would
be uncontested, and to conclude that the program requirements consti-
tuted regulations subject to a declaratory judgment under § 4-175 would
render meaningless the express language of both §§ 16-35 (c) and 16-
244z (a) (1) (C) exempting the procurement process from judicial review.
Argued October 19, 2023—officially released April 16, 2024
Procedural History
Action for, inter alia, a declaratory judgment as to
the applicability of a certain provision of the named
defendant’s shared clean energy program requirements
with respect to a certain request for proposals seeking
bids for shared clean energy facility projects, and for
other relief, brought to the Superior Court in the judicial
district of New Britain and transferred to the judicial
district of Stamford-Norwalk, Complex Litigation Docket,
where the court, Ozalis, J., granted the motion to dis-
miss filed by the named defendant and rendered judg-
ment thereon, from which the plaintiff appealed to this
court. Affirmed.
Thomas Melone, for the appellant (plaintiff).
Jill Lacedonia, assistant attorney general, with whom,
on the brief, was William Tong, attorney general, for
the appellee (named defendant).
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
Erick M. Sandler, with whom, on the brief, were
Johanna S. Lerner and Lauren G. Moscato, for the
appellee (defendant FuelCell Energy, Inc., et al.).
Opinion
BRIGHT, C. J. The plaintiff, Jefferson Solar, LLC,
appeals from the judgment of the Superior Court dis-
missing its action for a declaratory judgment pursuant
to the Uniform Administrative Procedure Act (UAPA),
General Statutes § 4-166 et seq. After the defendant
Department of Energy and Environmental Protection
(department) declined to issue the plaintiff’s requested
declaratory ruling pursuant to General Statutes § 4-176
(e), the plaintiff sought a declaratory judgment in the
Superior Court pursuant to General Statutes § 4-175 (a).
On appeal, the plaintiff claims that the court improperly
determined that it lacked subject matter jurisdiction
over its declaratory judgment action. We disagree and,
accordingly, affirm the judgment.1
The trial court set forth the following undisputed
facts and procedural history in its memorandum of deci-
sion. General Statutes § 16-244z2 ‘‘established, among
other things, a new statewide program for shared clean
energy facilities ([program]). The . . . program is
intended to incentivize the creation of new energy proj-
ects through awarding long-term contracts for the pur-
chase of electricity produced by the projects. . . .
[Section] 16-244z lays out specific tasks for four entities
involved in [shared clean energy facility] procurements:
1
The plaintiff also listed as defendants FuelCell Energy, Inc., and SCEF1
Fuel Cell, LLC (collectively, FuelCell). FuelCell filed an appellate brief with
this court asserting several alternative grounds for affirming the judgment.
Because we agree with the court’s reasoning and affirm the judgment on
that basis, we do not consider those alternative grounds.
2
We note that the legislature amended § 16-244z subsequent to the events
at issue. See, e.g., Public Acts 2023, No. 23-102, § 25. Because those amend-
ments are not relevant to this appeal, we refer in this opinion to the current
revision of § 16-244z.
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
The Public Utilities Regulatory Authority (PURA), [the
department], and the state’s two major electric distribu-
tion companies ([electric companies]), The Connecticut
Light and Power Company doing business as Ever-
source Energy (Eversource) and The United Illuminat-
ing Company ([United Illuminating]). PURA is the state
agency responsible for regulating Connecticut’s [elec-
tric companies]. . . . Through its energy arm, [the
department] is a state agency that has many responsibil-
ities for developing and implementing energy policies
and programs. See General Statutes § 22a-2d. Section
16-244z (a) (1) (C) requires [the department] ‘to develop
program requirements and tariff proposals for shared
clean energy facilities . . . .’ These requirements are
all subject to the review, modification and approval of
the PURA. . . .
‘‘Pursuant to that statutory obligation, [the depart-
ment] prepared new . . . program requirements and
submitted them for PURA’s review on July 1, 2019.
. . . PURA responded to [the department’s] filing of
the proposed . . . program requirements by initiating
an uncontested administrative proceeding for review
and approval purposes. Through this proceeding, PURA
modified and approved [the department’s] proposed
. . . program requirements in a final decision issued on
December 18, 2019. . . . These program requirements
delineate program elements, including the [program’s]
procurement process, the [program’s] structure, the bid
evaluation and selection process, project eligibility, and
bidder eligibility. . . . The selection of contracts was
made pursuant to the bidding process administered by
[the department] and the [electric companies]. . . .
‘‘On April 30, 2020, pursuant to [the department’s]
program requirements, the [electric companies] issued
a joint request for proposals ([request]) seeking bids for
[shared clean energy facility] projects in their service
territories. . . . The program requirements, tariff, and
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6 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
[the request] required the bidders to demonstrate that
they have ‘control of the generation site, or an uncondi-
tional right, granted by the property owner, to acquire
such control.’ . . . According to the terms of the
[request], an unconditional option to lease agreement
was sufficient to satisfy the requisite site control
requirement. . . . The program requirements gave [the
electric companies] broad discretion and decision-mak-
ing authority over the evaluation and initial selection
of bids submitted in response to the [request]. . . . The
program requirements permitted [the department] to
audit any selected bidder to ensure compliance with
the program. . . . The program requirements also
stated that ‘[the department] shall review and approve
the [electric companies’] final selection before the [elec-
tric companies] submit them to PURA . . . .’ More-
over, pursuant to the program requirements, all selected
bids must be approved by PURA. . . .
‘‘At a June 9, 2020, city of Derby Board of [Aldermen/
Alderwomen] public meeting, the board approved an
option to lease agreement between the city of Derby
mayor and FuelCell Energy, Inc., and SCEF1 Fuel Cell,
LLC (collectively, FuelCell), for a fuel cell power gener-
ating facility on Coon Hollow Road in Derby, Connecti-
cut ([property]). . . . On July 1, 2020, the city of Derby
entered into an option to lease agreement with FuelCell
for the property. . . .
‘‘In response to [the request], the plaintiff submitted
a bid for a 4.0 megawatt solar energy project located
in North Branford. . . . FuelCell submitted a bid for a
2.8 megawatt natural gas-powered fuel cell located on
the property. . . . The option to lease agreement that
FuelCell submitted with its bid was signed by the Mayor
of Derby and provided FuelCell with the ‘sole and exclu-
sive right, privilege and option to lease [the property]
from [Derby], for good and valuable consideration and
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
upon terms and conditions to be negotiated upon exer-
cise of [the] Option . . . .’ The option to lease provides
in relevant part: ‘Within ninety (90) days after the date
of the Notice, the City and [FuelCell] shall enter into
a lease agreement upon the terms and conditions set
forth in Exhibit B attached hereto and made a part
hereof, and such other terms and conditions as the City
and [FuelCell] shall negotiate in good faith ([lease]).’
. . . Section 4 of Exhibit B to the option to lease
provides a specific dollar amount that the annual rent
(including the amount of any agreement for payment
in lieu of taxes) shall not exceed. . . . [United Illumi-
nating] selected FuelCell’s bid as the winning bid for
a 2.8 megawatt natural gas-powered fuel cell on the
property. . . . Additionally, [United Illuminating]
selected a 1.5 megawatt solar project in Milford. . . .
[United Illuminating] also selected the plaintiff’s bid,
but limited the award to a 700 kilowatt facility. . . .
On January 22, 2021, PURA approved [United Illuminat-
ing’s] selections in PURA Docket No. 19-07-01 Ruling
to Motion No. 46. . . . On May 13, 2021, the city of
Derby Board of [Aldermen/Alderwomen] voted in favor
of granting FuelCell the lease in connection with the
2.8 megawatt [shared clean energy facility] project.
. . . On August 31, 2021, the city of Derby and FuelCell
executed a final lease for the property.
‘‘The plaintiff avers that FuelCell did not satisfy the
program requirements’ site control provision because
it relied on an invalid option to lease. The plaintiff
contends that the option to lease had no legal effect
because § 22 of the Derby City Charter, which requires a
sealed bidding process for any right to use real property,
was not complied with as no sealed bidding process
took place. The plaintiff also alleges that FuelCell did
not have site control of the property because when the
city of Derby conveys a property interest, the Derby
City Charter does not authorize option leases, it only
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8 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
authorizes actual leases and outright grants of property
interests. The plaintiff further claims that the option to
lease did not provide FuelCell with the unconditional
right to control because General Statutes § 7-163e was
not complied with as there was no public hearing on
the proposed option to lease. Moreover, the plaintiff
alleges that the option to lease was nothing more than
a letter of intent and unenforceable under the statute
of frauds because it did not specify a lease price. The
plaintiff contends that FuelCell also did not satisfy the
site control requirement because the option to lease
was conditioned on further approval and the program
requirements required bidders to have an unconditional
option agreement to purchase or lease the site. Thus,
the plaintiff asserts that [the department] was required
to not approve [United Illuminating’s] selection of Fuel-
Cell’s bid and [to] remove its bid from the rankings
because FuelCell did not meet the site control require-
ment.
‘‘On February 1, 2021, pursuant to . . . § 4-1763 and
§ 22a-3a-44 of the Regulations of Connecticut State
Agencies, the plaintiff requested that the [Commis-
sioner of Energy and Environmental Protection (com-
missioner)] issue the following declaratory ruling: ‘[The
department] erred in concluding that the bid submitted
by [FuelCell] in the response to the [request] satisfied
3
General Statutes § 4-176 (a) provides: ‘‘Any person may petition an
agency, or an agency may on its own motion initiate a proceeding, for a
declaratory ruling as to the validity of any regulation, or the applicability
to specified circumstances of a provision of the general statutes, a regulation,
or a final decision on a matter within the jurisdiction of the agency.’’
4
Section 22a-3a-4 (a) of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(1) Any person may petition the Commissioner
in writing to issue a declaratory ruling as provided by section 4-176 of the
General Statutes. The petition shall identify clearly and with particularity
the facts and circumstances which give rise to the petition; any statute,
regulation, or final decision of the Department at issue and the particular
aspect of it to which the petition is addressed; and the question or questions
as to which the declaratory ruling is sought. . . .’’
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
the site control requirements of the [request], and . . .
[the department’s] failure to remove it from the rankings
was clearly erroneous and arbitrary and capricious.’
. . . On April 1, 2021, [the commissioner] declined to
issue a declaratory ruling.’’ (Citations omitted; foot-
notes added.)
In the written decision declining to issue the
requested declaratory ruling pursuant to § 4-176 (e),5
the commissioner explained that the plaintiff failed to
identify any statute, regulation or final decision of the
department ‘‘to serve as the [basis] for a declaratory
ruling. . . . [A] declaratory ruling must relate to ‘the
validity of a regulation or the applicability of the provi-
sion of the general statutes, the regulation, or the final
decision in question to the specified circumstances
. . . .’ In reviewing and approving the selections of the
[electric companies], [the department] is executing the
program requirements embodied in a PURA final deci-
sion, not a statute, a [department] regulation, or a
[department] final decision. Accordingly, the [depart-
ment] finds that it lacks the authority to issue a declara-
tory ruling based on the specified circumstances laid
out in the petition.’’ (Footnote omitted.)
In response, the plaintiff initiated the underlying
declaratory judgment action in the Superior Court pur-
suant to § 4-175 (a)6 seeking ‘‘a declaratory judgment
5
General Statutes § 4-176 (e) provides in relevant part: ‘‘Within sixty days
after receipt of a petition for a declaratory ruling, an agency in writing shall
. . . (5) decide not to issue a declaratory ruling, stating the reasons for
its action.’’
6
General Statutes § 4-175 (a) provides in relevant part: ‘‘If a provision
of the general statutes, a regulation or a final decision, or its threatened
application, interferes with or impairs, or threatens to interfere with or
impair, the legal rights or privileges of the plaintiff and if an agency . . .
decides not to issue a declaratory ruling under subdivision . . . (5) of sub-
section (e) of . . . section 4-176 . . . the petitioner may seek in the Supe-
rior Court a declaratory judgment as to the validity of the regulation in
question or the applicability of the provision of the general statutes, the
regulation or the final decision in question to specified circumstances. . . .’’
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10 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
as to the applicability of the provision of [the depart-
ment’s] regulation (i.e., its [shared clean energy] pro-
gram requirements, as described herein) as to the speci-
fied circumstances of the 2020 [request] . . . .’’7
The department moved to dismiss the underlying
action, claiming that the plaintiff could not seek a
declaratory judgment pursuant to § 4-175 because no
statute, final decision, or regulation interfered with the
plaintiff’s legal rights. It argued that its October 22, 2020
review of the bids was not a final decision under § 4-175
and that the program requirements are not regulations
under the UAPA because § 16-244z specifically directed
the department to develop ‘‘program requirements’’
rather than regulations and because those program
requirements are not ‘‘generally applicable’’ under the
statutory definition of the term ‘‘regulation.’’ See Gen-
eral Statutes § 4-166 (16).
The court agreed with the department, concluding
that the department’s ‘‘mid-level review’’ of FuelCell’s
bid was not a final decision and because the program
requirements are neither General Statutes nor regula-
tions. The court reasoned that ‘‘the plain language of
7
The present case is the second in a trilogy of cases initiated by the
plaintiff in which it has sought to invalidate FuelCell’s winning bid. See
Jefferson Solar, LLC v. FuelCell Energy, Inc., 213 Conn. App. 288, 288 A.3d
1032 (2022), cert. denied, 346 Conn. 917, 290 A.3d 799 (2023) (Jefferson
Solar I); Jefferson Solar, LLC v. FuelCell Energy, Inc., 224 Conn. App. 710,
A.3d (2024) (Jefferson Solar III). In Jefferson Solar I, the plaintiff
brought an action against FuelCell asserting, inter alia, a claim for a violation
of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110 et seq., based on FuelCell’s allegedly false bid certification. Jefferson
Solar, LLC v. FuelCell Energy, Inc., supra, 213 Conn. App. 291. The trial
court dismissed the CUTPA claim for lack of standing, and this court affirmed
that judgment on appeal. Id., 298. In Jefferson Solar III, the plaintiff initiated
an action against FuelCell and United Illuminating asserting various counts
against each defendant based on the award of the contract to FuelCell.
Jefferson Solar, LLC v. FuelCell Energy, Inc., supra, 224 Conn. App. 710.
The trial court again dismissed the action for lack of standing, and we
affirmed that judgment. See id.
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
§ 16-244z does not use the word ‘regulation’ when
empowering [the department] to develop the program
requirements. Throughout Title 16, the legislature has
repeatedly used the word regulation when it intended
to give an agency the power to adopt regulations pursu-
ant to the UAPA. Moreover, if the court were to consider
the . . . program requirements regulations, it would
run contrary to [General Statutes § 16-35 (c)]. . . .
[Section] 16-35 (c) bars appeals from PURA energy pro-
curement processes because the legislature expressly
stated that these proceedings ‘shall be uncontested.’ If
the . . . program requirements were regulations, every
time a decision was made pursuant to the program
requirements, the decision could be appealed under
[the] UAPA, however, the legislature did not intend for
unsuccessful bidders to file administrative appeals from
PURA [energy] procurement proceedings according to
the plain language in § 16-35 (c). . . .
‘‘Additionally, these program requirements were not
promulgated pursuant to the UAPA formalities for
enacting regulations. . . . The conclusion that the
. . . program requirements are not regulations is fur-
ther supported by the nature of the program that these
requirements govern. The . . . program requirements
are not generally applicable because this is a highly
specialized clean energy program, and the requirements
apply to a very limited [number] of potential bidders.
. . . Section 16-244z is the procedure that the legisla-
ture laid out for PURA and [the department] to imple-
ment the program . . . . Thus, the . . . program
requirements are not regulations.’’ (Citations omitted.)
Accordingly, the court granted the department’s motion
to dismiss, and this appeal followed.
On appeal, the plaintiff claims that the court improp-
erly dismissed its declaratory judgment action under
§ 4-175 because the program requirements are regula-
tions under the UAPA. Before addressing the parties’
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12 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
arguments, we set forth the applicable standard of
review and relevant legal principles that guide our anal-
ysis.
‘‘Administrative agencies are tribunals of limited
jurisdiction and their jurisdiction is dependent entirely
[on] the validity of statutes vesting them with power
and they cannot confer jurisdiction [on] themselves.
. . . [A]n administrative body must act strictly within
its statutory authority, within constitutional limitations
and in a lawful manner. . . . It cannot modify, abridge
or otherwise change the statutory provisions, under
which it acquires authority unless the statutes expressly
grant it that power. . . .
‘‘[T]he question of subject matter jurisdiction is a
question of law . . . and, once raised, either by a party
or by the court itself, the question must be answered
before the court may decide the case. . . . [B]ecause
[a] determination regarding . . . subject matter juris-
diction is a question of law, our review is plenary.’’
(Citation omitted; internal quotation marks omitted.)
Kleen Energy Systems, LLC v. Commissioner of
Energy & Environmental Protection, 319 Conn. 367,
380–81, 125 A.3d 905 (2015).
‘‘There is no absolute right of appeal to the courts
from a decision of an administrative agency. . . .
Appeals to the courts from administrative [agencies]
exist only under statutory authority . . . . Appellate
jurisdiction is derived from the . . . statutory provi-
sions by which it is created, and can be acquired and
exercised only in the manner prescribed. . . . In the
absence of statutory authority, therefore, there is no
right of appeal from [an agency’s] decision . . . .’’
(Internal quotation marks omitted.) Trinity Christian
School v. Commission on Human Rights & Opportuni-
ties, 329 Conn. 684, 692–93, 189 A.3d 79 (2018). In the
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
present case, the relevant statutory authority is §§ 4-
175 and 4-176.
Pursuant to § 4-176 (a), ‘‘[a]ny person may petition
an agency . . . for a declaratory ruling as to the validity
of any regulation, or the applicability to specified cir-
cumstances of a provision of the general statutes, a
regulation, or a final decision on a matter within the
jurisdiction of the agency.’’ When the agency declines
to issue a declaratory ruling pursuant to § 4-176 (e)
(5), ‘‘the petitioner may seek in the Superior Court a
declaratory judgment as to the validity of the regulation
in question or the applicability of the provision of the
general statutes, the regulation or the final decision in
question to specified circumstances.’’ General Statutes
§ 4-175 (a). Thus, ‘‘a complaint brought pursuant to § 4-
175 must set forth facts to support an inference that a
provision of the general statutes, a regulation or a final
decision, or its threatened application, interferes with
or impairs, or threatens to interfere with or impair the
legal rights or privileges of the plaintiff.’’ (Internal quo-
tation marks omitted.) Emerick v. Commissioner of
Public Health, 147 Conn. App. 292, 296–97, 81 A.3d 1217
(2013), cert. denied, 311 Conn. 936, 88 A.3d 551 (2014).
Whether the plaintiff has a statutory right to seek a
declaratory judgment under § 4-175 (a) ‘‘is a question
of statutory interpretation over which our review is
plenary. . . . Relevant legislation and precedent guide
the process of statutory interpretation. General Statutes
§ 1-2z provides that, ‘[t]he meaning of a statute shall,
in the first instance, be ascertained from the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall
not be considered.’ ’’ (Citation omitted.) Middlebury v.
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14 ,0 0 Conn. App. 688
Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
Dept. of Environmental Protection, 283 Conn. 156, 166,
927 A.2d 793 (2007).
On appeal, the plaintiff notes that the dispositive
issue in the present case is ‘‘whether [the department’s]
program requirements under the [shared clean energy
facility] program are a ‘regulation’ (i.e., a statement
of general applicability that implements, interprets, or
prescribes law or policy), such that a declaratory ruling
can be requested under [§] 4-176.’’8 It argues that the
program requirements are regulations under the UAPA
because they ‘‘are a statement of general applicability
implementing law or policy that apply to an entire indus-
try—energy generators that wish to compete under the
[shared clean energy facility] program—and thus con-
stitute an agency statement of general applicability, and
thus a regulation, under § 4-166 (16).’’9 For its part, the
department contends that ‘‘the program requirements
are not regulations’’ and that this court ‘‘should not
endorse the use of § 4-175 as an end run around § 16-35.’’
In its reply brief, the plaintiff argues that ‘‘the contested
case/final decision [issue under § 16-35 (c) is] irrelevant
here. What [§] 16-35 (c) does is remove a PURA energy
procurement from the status as a contested case before
PURA. But a contested case never included ‘a petition
for a declaratory ruling under [§] 4-176.’ Controlling
case law makes it clear that proceedings on a petition
8
The parties agree that the program requirements do not constitute provi-
sions of the General Statutes and that the department’s ‘‘mid-level’’ determi-
nation that FuelCell’s proposal complied with the program requirements
was not a final decision under § 4-175 (a).
9
General Statutes § 4-166 provides in relevant part: ‘‘As used in this chapter
. . . (16) ‘Regulation’ means each agency statement of general applicability,
without regard to its designation, that implements, interprets, or prescribes
law or policy, or describes the organization, procedure, or practice require-
ments of any agency. The term includes the amendment or repeal of a prior
regulation, but does not include (A) statements concerning only the internal
management of any agency and not affecting private rights or procedures
available to the public, (B) declaratory rulings issued pursuant to section
4-176, or (C) intra-agency or interagency memoranda . . . .’’
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
for a declaratory ruling under [§] 4-176 are, and have
always been, appealable under the UAPA.’’ We agree
with the department, as the plaintiff’s claim that the
program requirements constitute regulations for pur-
poses of § 4-175 is contrary to the clearly expressed
intent of the legislature in both §§ 16-35 (c) and 16-244z
(a) (1) (C).
We begin with the relevant statutory language. First,
§ 16-244z (a) (1) (C) provides in relevant part that the
department ‘‘shall . . . initiate a proceeding to develop
program requirements and tariff proposals for shared
clean energy facilities eligible pursuant to subparagraph
(C) of subdivision (2) of this subsection . . . . On or
before July 1, 2019, the department shall submit any
such program requirements and tariff proposals to
[PURA] for review and approval. On or before January
1, 2020, [PURA] shall approve or modify such program
requirements and tariff proposals submitted by the
department. . . .’’ It is significant that the legislature
did not direct either the department or PURA to estab-
lish ‘‘regulations,’’ as it has done expressly in other
sections of the same chapter. See, e.g., General Statutes
§ 16-32a (if ‘‘competitive bidding seems likely to reduce
procurement costs without impairing quality, continuity
or dependability of service or the ability to respond
to emergencies, [PURA] may, after notice and public
hearing, establish such regulations as it deems neces-
sary to provide for competitive bidding in appropriate
cases’’); General Statutes § 16-244c (g) (‘‘[PURA] shall
establish, by regulations adopted pursuant to [the
UAPA], procedures for when and how a customer is
notified that his electric supplier has defaulted and of
the need for the customer to choose a new electric
supplier within a reasonable period of time or to return
to standard service’’ (emphasis added)). It is a basic
rule of statutory interpretation that, when ‘‘a statute,
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
with reference to one subject contains a given provi-
sion, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed.’’ (Internal
quotation marks omitted.) In re Cole, 347 Conn. 284,
297, 297 A.3d 151 (2023). Thus, the fact that the legisla-
ture has directed PURA to act by regulation in a related
statute but declined to direct either PURA or the depart-
ment to do so in § 16-244z in developing the program
requirements, demonstrates that the legislature did not
intend for the program requirements to be regulations
subject to the rule-making process under the UAPA.
That conclusion is further supported by the overall leg-
islative scheme governing PURA energy procurement
proceedings, of which the shared clean energy facility
program is a part.
Specifically, the legislature directed the department
to develop the program requirements for PURA’s
approval, which implicates § 16-35 (c). Section 16-35
(c) expressly provides that, ‘‘[n]otwithstanding any pro-
vision of this title and title 16a, proceedings in which
[PURA] conducts a request for proposals or any other
procurement process for the purpose of acquiring elec-
tricity products or services for the benefit of ratepayers
shall be uncontested.’’ By designating proceedings that
involve an energy procurement process as ‘‘uncon-
tested,’’ the legislature elected not to provide a right to
judicial review in such proceedings because ‘‘[a] party
seeking review of a state agency’s action . . . must
establish that the injury resulted from a final decision
in a contested case.’’ (Emphasis added.) Ardmare Con-
struction Co. v. Freedman, 191 Conn. 497, 503, 467 A.2d
674 (1983). Again, it is significant that ‘‘the legislature
has, elsewhere in our statutory scheme, expressly pro-
vided for judicial review of agency decisions by calling
the decision a ‘contested case’ or by referring to § 4-
183.’’ (Footnote omitted.) Ferguson Mechanical Co. v.
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
Dept. of Public Works, 282 Conn. 764, 776–77, 924 A.2d
846 (2007); see also id., 777 nn.12 and 13 (noting statutes
that grant right of judicial review by reference to § 4-
183 as well as statutes denying basis for appeal under
UAPA).
It is axiomatic that ‘‘the legislature, rather than the
agencies, has the primary and continuing role in decid-
ing which class of proceedings should enjoy the full
panoply of procedural protections afforded by the [act]
to contested cases, including the right to appellate
review by the judiciary. Deciding which class of cases
qualif[ies] for contested case status reflects an
important matter of public policy and the primary
responsibility for formulating public policy must remain
with the legislature.’’ (Internal quotation marks omit-
ted.) Middlebury v. Dept. of Environmental Protection,
supra, 283 Conn. 170. Thus, given that the legislature
has stated expressly its intent that there be no right to
judicial review in PURA initiated procurement proceed-
ings broadly and that it directed the department to
develop ‘‘program requirements’’—not regulations—to
be approved by PURA, we cannot agree with the plain-
tiff that the program requirements constitute regula-
tions that are subject to a declaratory judgment action
under § 4-175. To conclude that they are regulations
would render meaningless the express language of both
§§ 16-35 (c) and 16-244z (a) (1) (C) exempting the pro-
curement process from judicial review. As our Supreme
Court has observed, ‘‘the absence of judicial review
is consistent with the purpose of the public bidding
statutes, which is promot[ing] the public interest in the
efficient completion of public works projects.’’ (Internal
quotation marks omitted.) Ferguson Mechanical Co. v.
Dept. of Public Works, supra, 282 Conn. 778.
In light of that statutory scheme, the plaintiff’s reli-
ance on Walker v. Commissioner, Dept. of Income
Maintenance, 187 Conn. 458, 446 A.2d 822 (1982), is
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
misplaced. In Walker, the plaintiff, a recipient of public
assistance benefits under a program administered by
the defendant agency, sought payment for expenses she
had incurred when she moved her residence. Id., 459.
The defendant denied the request because ‘‘the plaintiff
had failed to obtain approval of the expenses prior to
moving.’’ Id. Although the regulation under which the
plaintiff sought payment did not require prior approval,
it was the defendant’s policy ‘‘not generally available
to the public . . . [that] expressly include[d] moving
expenses among those special items requiring prior
approval . . . .’’ Id., 460. In determining whether the
unstated policy had ‘‘a sufficiently substantial effect
upon the rights of a party as to constitute a regulation’’
under the UAPA; id.; our Supreme Court explained that
‘‘[i]t is not conclusive that an agency has, or has not,
denominated its action a regulation or that it has, or
has not, promulgated it procedurally in the fashion that
would be required of a regulation. . . . The test is,
rather, whether a rule has a substantial impact on the
rights and obligations of parties who may appear before
the agency in the future.’’ (Citations omitted; internal
quotation marks omitted.) Id., 462.
Applying that test, the court reasoned that ‘‘[t]he prior
approval policy is a statement of general applicability
because it applies to all [assistance] recipients seeking
help with their moving expenses. . . . The policy also
affects the substantial rights of potential recipients in
ways in which purely procedural requirements, such as
requiring particular information on specific forms, do
not. The policy has the effect of denying the payment
of moving expenses to anyone who would otherwise
qualify . . . . [The prior approval] policy, therefore,
concerns more than the [defendant’s] internal manage-
ment; it affects the substantial rights of the potential
recipients. Because the prior approval policy is a state-
ment of general applicability . . . that implements,
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
interprets, or prescribes law or policy and is not a state-
ment concerning only the internal management of the
defendant which does not affect private rights, it is a
regulation under the UAPA.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Id., 463–64.
In the present case, the plaintiff argues that, ‘‘[a]s in
Walker, here [the department’s] rules concern more
than the department’s internal management; [they]
affect the substantial rights of the potential [bidders].’’
According to the plaintiff, ‘‘just like a typical regulation,
the agency (here, [the department]) administers it and is
in charge of implementing it and applying it to specified
circumstances. . . . The decision of whether a bidder
satisfies [the department’s site control rules] resides
with [the department]. PURA does not second-guess
[the department]. . . . Here, [the department’s] rules
apply to an entire industry . . . and regulate billions
of dollars worth of contracts. Here, as in the normal
situation with rules, the [department’s] site control
rules provide the law that determines who is entitled to
the public benefit of the contracts.’’ (Citations omitted.)
The critical distinction between the present case and
Walker, however, is that here, the department acted
in accordance with an express legislative directive to
develop ‘‘program requirements’’ to be adopted by
PURA, whereas, in Walker, the agency developed its
policy for administering its own regulation without an
express legislative directive to act in a particular man-
ner. Accordingly, the present case does not involve an
agency’s characterization of its own action, but, rather,
it involves the legislature’s express directive to the
department to develop ‘‘program requirements’’—not
regulations. Moreover, those program requirements
were adopted by PURA in an uncontested proceeding,
as defined by § 16-35 (c). Consequently, Walker’s analy-
sis is not controlling in the present case.
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
For the same reason, the out-of-state cases on which
the plaintiff relies also are unpersuasive. Specifically,
the plaintiff cites two cases, Academy Bus Tours, Inc.
v. New Jersey Transit Corp., 263 N.J. Super 353, 622
A.2d 1335 (N.J. App. Div.) (Academy), cert. denied,
134 N.J. 485, 634 A.2d 531 (1993), and Sa-Ag, Inc. v.
Minnesota Dept. of Transportation, 447 N.W.2d 1
(Minn. App. 1989) (Sa-Ag), in support of its contention
that other state courts have found that bidding require-
ments constitute rules or regulations under the UAPA.
Neither of those cases, however, involved a statutory
scheme comparable to that at issue in the present case.
First, in Academy, the New Jersey Appellate Division
held that the policy of the defendant, New Jersey Transit
Corporation (NJ Transit), establishing criteria for con-
tracting out for its bus routes was a rule under the
New Jersey Administrative Procedure Act, because the
policy was ‘‘an agency statement of general applicability
and continuing effect that implements or interprets law
or policy.’’ (Internal quotation marks omitted.) Acad-
emy Bus Tours, Inc. v. New Jersey Transit Corp., supra,
263 N.J. Super. 361. In that case, the relevant statutes
simply provided that, ‘‘[i]n the provision of public trans-
portation services, it is desirable to encourage to the
maximum extent feasible the participation of private
enterprise and to avoid destructive competition. . . .
[NJ Transit] may enter into contracts with any public
or private entity to operate motorbus regular route,
paratransit or motorbus charter services or portions or
functions thereof. Payments shall be by agreement upon
such terms and conditions as the corporation shall
deem necessary.’’ (Citation omitted; internal quotation
marks omitted.) Id., 356. Under those statutes, NJ Tran-
sit ‘‘adopted a contracting-out policy evidencing its
intention to contract out approximately five percent
of its existing service and to contract out new and
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
restructured service. It interpreted the legislative man-
date to mean that private carriers should be used when
they can maintain quality service; improve the financial
position of the state significantly on the route or routes
in question; ensure continued responsiveness; and oper-
ate in a coordinated system and safely.’’ Id. The court
reasoned that the agency ‘‘adopted a policy which is
intended to be applied generally and uniformly to the
prospective ability of outside carriers to bid on bus
routes. It prescribes a standard, not expressly provided
in the statute, for the participation of outside carriers
in the operation of [its] bus routes.’’ Id., 362.
Similarly, in Sa-Ag, ‘‘the Minnesota Department of
Transportation issued a statement . . . (the adden-
dum), to all bidders on state contracts. The addendum
purported to explain which haulers of sand, gravel or
stone to state highway construction projects would
have to adhere to prevailing wage and hourly rates.
Claiming that this addendum was an interpretation of
[a Minnesota statute], [the] respondents asserted the
addendum constituted a rule, the adoption of which is
subject to the rulemaking procedures set forth in the
Minnesota Administrative Procedure Act (MAPA) . . . .
Determining that the addendum was a statement of
general applicability and future effect, the trial court
concluded the addendum was a rule and enjoined the
state from enforcing its provisions unless and until it
is adopted as a rule after notice and a hearing pursuant
to MAPA.’’ (Citation omitted.) Sa-Ag, Inc. v. Minnesota
Dept. of Transportation, supra, 447 N.W.2d 1–2. On
appeal, the Court of Appeals of Minnesota explained
that ‘‘[t]here is no dispute the addendum is in fact a
statement of an agency of general applicability and
future effect. . . . The parties agree that, if anything,
the addendum would be an interpretive rule, which is
one promulgated to make specific the law enforced or
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
administered by the agency.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 4. After considering
the text of the relevant statute, the court concluded that
it was ‘‘certainly subject to more than one interpretation
and the Department of Transportation thus engaged in
rulemaking by issuing the addendum which interprets
[that statute]. Consequently, the trial court properly
enjoined enforcement of the terms of the addendum
unless and until the appropriate state agency adopts a
rule pursuant to [MAPA].’’ Id., 5.
Again, just as with Walker v. Commissioner, Dept. of
Income Maintenance, supra, 187 Conn. 458, the critical
distinction between both Academy and Sa-Ag and the
present case is that, unlike the clearly expressed legisla-
tive directives to the department and PURA in § 16-
244z for the department to develop ‘‘program require-
ments’’ for PURA’s approval for the shared clean energy
facility procurement process, the agencies in Academy
and Sa-Ag adopted policies interpreting statutes in the
absence of a clear legislative directive to act in a particu-
lar manner. In addition, neither of those cases involved
a statute designating the attendant procurement pro-
cesses as uncontested proceedings under the respective
administrative procedure acts, as § 16-35 (c) does in
the present case. Thus, both cases are distinguishable
from the present case.10
10
We note that at least one court has held that an agency’s bidding require-
ments are not regulations. In Medical Management & Rehabilitation Ser-
vices, Inc. v. Maryland Dept. of Health & Mental Hygiene, 225 Md. App.
352, 355, 124 A.3d 1137 (2015), the plaintiffs challenged the defendant state
agency’s award of a contract to a competitor, and the trial court dismissed
the action for failure to exhaust administrative remedies. On appeal, the
plaintiffs claimed, among other things, that they were entitled to petition
for a declaratory judgment challenging the contract award because the
request for proposals was ‘‘effectively a regulation that was not adopted in
accordance with [the Maryland Administrative Procedure Act].’’ Id., 364.
The Court of Special Appeals of Maryland rejected that claim, holding that
the agency’s request for proposals ‘‘and the related contract award do not
constitute a regulation under Maryland law.’’ Id., 369. The court reasoned that
the request for proposals did not constitute ‘‘a substantially new generally
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Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection
In sum, mindful of the legislature’s role, we reject
the plaintiff’s proffered interpretation of the program
requirements in the present case, which plainly contra-
dicts the legislature’s clearly expressed policy decision.
Cf. Kleen Energy Systems, LLC v. Commissioner of
Energy & Environmental Protection, supra, 319 Conn.
388 (rejecting any interpretation of § 4-176 that suggests
‘‘that the department has broad authority to issue
declaratory rulings pursuant to § 4-176 whenever it is
asked to interpret a contract that it was involved in
drafting, even if the contract was not approved in a
contested case and the dispute did not require the
department to apply a statute to the specific circum-
stances of the contractual dispute’’). Therefore, because
the program requirements are not regulations under
the UAPA, the court properly dismissed the plaintiff’s
action seeking a declaratory judgment under § 4-175,
as the plaintiff’s requested ruling did not ask the court
to decide whether a regulation is valid or to determine
the application of a regulation, statute, or final decision.
See Pinchbeck v. Dept. of Public Health, 65 Conn. App.
201, 206, 782 A.2d 242 (holding that § 4-175 did not
authorize plaintiff to bring declaratory judgment action
because ‘‘[s]he did not ask the [trial] court to decide
whether a regulation is valid or whether a regulation,
statute or decision applied to the facts of [her] case’’),
cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).
The judgment is affirmed.
In this opinion the other judges concurred.
applicable policy’’ because it was ‘‘limited to case management services for
a finite segment of the greater Medicaid population for a single contract
period of July 1, 2013 through June 30, 2016, and applies only to the case
management agencies responding to the [request for proposals].’’ (Internal
quotation marks omitted.) Id., 368.