Showdown on citizen environmental action statute

Environmental and business groups are marshalling forces for an anticipated showdown Friday that pits part of the cornerstone of state environmental law against development and job creation. At issue is legislation that would restrict using environmental grounds to block development projects.

Supporters say it’s needed because the existing language in the landmark Connecticut Environmental Protection Act of 1971 is dated, too broad and easily and often abused, resulting in a hostile business climate that drives project developers to other states.

Opponents are branding it an assault on one of the state’s most important environmental laws, specifically a provision that gives citizens the right to intervene in administrative agencies when environmental issues are involved.

“This citizens’ provision has been a central part of great environmental progress in the last 40 years,” said Roger Reynolds of the advocacy group Connecticut Fund for the Environment, who plans to testify at a Planning and Development Committee hearing Friday. “I think this is a pretty serious assault.”

The issue has had developers and others grumbling for years. As it exists now, an environmental “intervenor” can object to proposed development at any stage of the process, even after it has cleared local, state or federal environmental hurdles.

Business groups contend the statute has been abused, because intervenors don’t have to provide evidence or fully identify themselves. Competitors, they claim, have been known to hide behind a guise of an environmental concern, when their real purpose is to keep a business challenge out. Business groups also claim that anti-development groups and others will simply use the statute as a delaying tactic.

“It’s an attrition thing,” said Wayne Cobleigh, an environmental consultant with GZA GeoEnvironmental Technologies. Cobleigh is also the state director of the International Council of Shopping Centers, a leading member in a coalition of groups fighting for passage of the legislation. He and others said developers just give up or their funders pull out.

Cobleigh said as a consultant, he’s been on many sides of development projects, including as an intervenor — a losing one at that — on a Simsbury housing project.

“We’re not anti-environmental, we’re anti-abuse,” he said. “You shouldn’t be using environmental laws to stop economic development; you should be using environmental laws to protect the environment.”

Legitimate environment complaints, he and others insisted, had nothing to worry about.

But Reynolds disagreed. “The long and short of it — it would single out environmental intervenors and impose a lot of restrictions on them that aren’t imposed on other litigants,” he said. “If you’re going to go after baseless or frivolous litigation, go after everybody.”

The new language specifies that intervenors “demonstrate” and not just “assert” that the action is harmful. It requires that all intervenors and their funders be named. It sets time limits for intervening actions and could force interveners to pay court and legal costs if they lose and their environmental claims are deemed to have been delay tactics or otherwise frivolous.

“Average citizens would think twice about opening their mouths,” said Lori Brown, executive director of the Connecticut League of Conservation Voters, who saw the bill as another example of an ever-widening national sentiment that environmental protection is bad for business. “It would really put a chilling effect on people’s ability to weigh in.”

But developer Richard Hayes Jr. of Hayes-Kaufman said environmentalists should be embracing the changes. “It will give them more credibility,” he said. “It will take the bad apples out.”

Hayes is among many with tales of projects they say were thwarted or slowed by interventions that may not have been environmental. Hayes said he had four in the last decade, the most problematic of which is a Home Depot in Vernon, in the works since 2001, now awaiting a ruling in state Supreme Court.

Michael Goman, president of Goman + York Property Advisers in Farmington, said a third of the major shopping mall projects he’s done have been slowed by environmental interventions, though he declined to say what they were. But the bigger problem, he said, was the development opportunities lost because Connecticut’s already long permit approval system has a potential to get even longer if there are interventions.

“The big issue for us is the chilling effect it has on our ability to attract investment capital,” he said. “I have to explain the market risk and permitting risk. By the time I finish with the permitting risk they say, ‘not interested.'”

It’s that uncalculated loss that has the Connecticut Business and Industry Association supporting the legislation. “Nobody is saying get rid of the act,” said Eric Brown, an environmental lobbyist for CBIA, even though he said he’s heard complaints about it for 20 years. “I think this is a very thoughtful and legitimate effort to strike a better balance.”

Sen. Steve Cassano, D-Manchester, co-chairman of the Planning and Development Committee, said he saw abuses of the statute during his time as mayor of Manchester. “I’m hearing from people all over the state their horror stories of three to five year delays,” he said. “A lot of good projects are being hurt, and a lot of jobs are being lost as a result.”

Echoing the sentiments of many, he said in the 41 years since the Connecticut Environmental Protection Act — which he called a showpiece bill for the environment — passed, a lot of environmental regulations have been added to the books, lessening the need for the intervenor statute.

“On one hand it accomplished what it was supposed to do and on the other hand it killed a lot of things it wasn’t supposed to,” he said. “We’re just asking for transparency.”

The Fund for the Environment’s Reynolds said there are existing statues that address baseless claims, pointing to large judgments against Westfarms Mall for bringing frivolous actions against the developers of Blue Back Square in West Hartford.

He also rejected assertions by legislation supporters that the statute has been widely abused, pointing to a 2010 report by the then Department of Environmental Protection that looked into the concern and found: “CEPA intervention in the Department’s permitting process is rare.”

It went on to quantify that intervention was used 0.2 percent of the time when a department permit was required, although admitted it could not calculate its use at the local level. The report also said there was at least a perception that interventions under CEPA made the state a difficult place to do business.

Reynolds also noted that applicants have been known to abuse the permitting process, appealing zoning or wetlands rulings when there is no basis, but counting on concessions from municipalities that would rather give in than submit to expensive litigation.

Attorney Diane Whitney, who heads Pullman & Comley‘s environmental department and has also been a central proponent of the legislation, though as recently as last year called for the statute’s repeal, said she’s had clients lose development bids due to frivolous interventions.

“Intervenors need to provide evidence of pollution. I don’t think that’s unfair; I think that’s eminently fair,” she said. “I think what’s unfair is to string out an application endlessly.

“All we’re saying to intervenors is ‘tell us what the environmental harm is.’ If it is legitimate environmental harm, they will know.”