Burton v. Dominion Nuclear Conn. Inc

NANCY BURTON. v. DOMINION NUCLEAR CONNECTICUT, INC.

(SC 18603)

Supreme Court of Connecticut

Dated: December 6, 2010

Dated: April 19, 2011

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Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Vertefeuille, Js. Argued December 6, 2010—officially released April 19, 2011

Nancy Burton, pro se, the appellant (plaintiff).

Elizabeth C. Barton, with whom were Harold M. Blinderman and Rene A. Ortega, for the appellee (defendant).

Opinion

ZARELLA, J. The plaintiff, Nancy Burton, appeals from the judgment of the trial court dismissing her complaint and denying her application for a temporary restraining order on the ground that the court lacked subject matter jurisdiction. The plaintiff seeks to prevent the defendant, Dominion Nuclear Connecticut, Inc., which owns and operates the Millstone Nuclear Power Station (Millstone) in the town of Waterford, from implementing, or continuing to implement, ¹ a 7 percent increase in electric power generating capacity (uprate)² in its Unit 3 nuclear reactor because the increase purportedly would cause unreasonable pollution by significantly increasing the discharge of radioactive waste³ and raising the temperature of the cooling water released into Long Island Sound (thermal plume). On appeal, the plaintiff claims that the trial court improperly dismissed, for lack of standing, her complaint alleging (1) a cause of action under the Connecticut Environmental Protection Act (CEPA), General Statutes § 22a-1 et seq., (2) a claim of public nuisance, (3) classical aggrievement, ⁴ and (4) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b (a). She also claims that, to the extent the trial court concluded that the doctrines of federal preemption, exhaustion of administrative remedies and primary jurisdiction provided additional grounds on which to dismiss her complaint, its conclusions were improper. The defendant responds that the trial court properly dismissed the complaint on jurisdictional grounds. We affirm the judgment of the trial court.

The following relevant facts and procedural history are set forth in the trial court's memorandum of decision. ''On August 12, 2008, the [federal] Nuclear Regulatory Commission [commission] approved [the defendant's] license amendment request for a stretch power uprate of 7 percent at Millstone Unit 3. This uprate increased Millstone's licensed core power from 3411 megawatts thermal to 3650 megawatts thermal. The plaintiff... [had] petitioned to intervene in the uprate license amendment request proceeding. The [commission] appointed an atomic safety licensing board to rule on the plaintiff's petition, which was denied.

''The [commission's] decision to approve the license amendment request was supported by a 260 page safety evaluation report issued on August 12, 2008. The [commission] also performed an environmental evaluation of the impact of the uprate on the human environment. The results of this evaluation are reflected in an environmental assessment and finding of no significant impact published in the Federal Register on August 7, 2008. In it, the [commission] concluded that 'even with the small increase in the radioactivity being discharged into the environment, the projected dose to the maximally exposed member of the public, while slightly increased... will remain well below the ''as low as is reasonably achievable''... guide[lines]' established in the [commission's] regulations. Dominion Nuclear Connecticut, Inc.; Millstone Power Station, Unit 3; Final Environmental Assessment and Finding of No Significant Impact Related to the Proposed License Amendment to Increase the Maximum Reactor Power Level, 73 Fed. Reg. [46,056 (Nuclear Regulatory Commission August 7, 2008)].

''With respect to the nonradiological impacts of the thermal effluents from the [power] plant after the uprate, the [commission] determined that '[n]o effects on the aquatic or terrestrial habitat in the vicinity of the plant, or to endangered or threatened species, or to the habitats of endangered or threatened species are expected as a result of the increase in thermal discharge.' Id., 46,055. The environmental assessment concluded that issuance and implementation of the uprate will not have a significant effect on the quality of the human environment. Id., 46,057.''

On October 23,2008, the plaintiff filed her complaint, ⁵seeking an injunction, damages and other relief on the ground that the uprate would cause unreasonable pollution to Long Island Sound and to an estuary located near property that she owns and uses seasonally. The plaintiff also filed an ex parte application for a temporary restraining order to preclude the defendant from implementing the uprate unless it could do so without increasing the discharge of radioactive waste into Long Island Sound and without increasing the temperature of the thermal plume.

The trial court scheduled a hearing on the application for a temporary restraining order for November 3, 2008. The defendant responded with a motion to dismiss the complaint and the application on the ground that the plaintiff lacked standing to bring her claims and, alternatively, on grounds of federal preemption, exhaustion of administrative remedies and primary jurisdiction.

On November 10, 2008, the trial court held a hearing on the motion to dismiss and, on January 7, 2009, granted the motion. The court dismissed the plaintiff's complaint for lack of standing and further concluded that the plaintiff's complaint was subject to dismissal on the basis of the doctrines of federal preemption, exhaustion of administrative remedies and primary jurisdiction. On January 20, 2009, the plaintiff filed a motion for reconsideration, which the trial court denied. This appeal followed.⁶

I

We begin with the defendant's claim that the plaintiff's request for injunctive relief should be dismissed as moot because Millstone implemented the uprate following the trial court's decision, and, therefore, no practical relief is available to the plaintiff. The plaintiffresponds that the defendant relies on inapposite legal authority and that there is no evidence in the record to support the conclusion that, even if the uprate has been implemented, it cannot be reversed or "undone." (Internal quotation marks omitted.) We agree with the plaintiff that her request for injunctive relief should not be dismissed as moot.

''Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.'' (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 492-93, 778 A.2d 33 (2001).

''Connecticut courts have rejected injunctive remedies on the ground of mootness where the issue before the court has been resolved or has lost its significance because of intervening circumstances. See Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249-52, 440 A.2d 310 (1982) (court dismissed as moot plaintiff's request for injunctive relief to restrain picketing during strike because strike and picketing had ended while appeal was pending); Daley v. Gaitor, 16 Conn. App. 379, 381 n.2, 547 A.2d 1375 (court dismissed as moot plaintiff's request to enjoin city of Hartford from administering promotional examination to police officers following city's promotion of officers during pendency of appeal), cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).'' Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 126, 836 A.2d 414 (2003).

In the present case, the plaintiff does not dispute the defendant's contention that Millstone implemented the uprate following the trial court's decision. There is no evidence in the record, however, that this intervening circumstance prevents the court from affording the plaintiff any practical relief. In previous cases in which we have upheld the trial court's dismissal of claims for mootness, the reasons for requesting injunctive relief no longer existed at the time the...