January 30, 2008
LEGISLATIVE HISTORY OF THE CONNECTICUT
By: Paul Frisman, Principal Analyst
You asked for the legislative history of the Connecticut Environmental Policy Act (CEPA). We provide the history both of the original 1973 public act (PA 73-562) and of revisions made in 2002 (PA 02-121). You also asked several specific questions about CEPA, which we answer separately below.
CEPA (CGS §§ 22a-1 through 22a-1h and Conn. Agencies Regs. § 22a-1a-1 through 22a-1a-12) is meant to ensure that state agencies consider environmental factors when deciding whether to take an action that may significantly affect the environment. It requires them to evaluate, in writing, the impact the proposed action would have on the environment.
Among other things, these environmental impact evaluations, or EIEs, must examine the direct, indirect, and cumulative environmental consequences of the proposed action, and any reasonable alternatives to it (CGS § 22a-1b(c)). The Office of Policy and Management (OPM) reviews EIEs, determining, among other things, if the agency has taken all practicable steps to avoid or minimize environmental harm. However, findings of adverse impact do not necessarily stop a project from proceeding.
The legislature approved CEPA (PA 73-562) in 1973, one year after Governor Meskill vetoed PA 72-153, a similar bill. The governor said PA 72-153 would overlap existing federal and state requirements, be too costly, and be onerous to administer. Meskill later in 1972 issued an executive order (Executive Order 16) to achieve the vetoed act's “essential purposes.” PA 73-562 was similar to Executive Order 16, with the added provision that the public have access to, and the ability to comment on, state agency proposals.
In 2002, the legislature adopted PA 02-121, which adds a “scoping” process that allows the public to comment on a proposed action before an agency begins the formal EIE process.
PA 73-562 (SB 2069) AAC The Adoption of a Connecticut Environmental Policy Act
Senator Costello, Environment Committee co-chair, summarized the history and rationale for PA 73-562 before the Senate on May 10, 1973. Costello called the bill one of the session's most important pieces of environmental legislation. He noted that the legislature had in the previous session overwhelmingly adopted a state environmental policy act (PA 72-153). Such acts, he said, are “designed to give the public protection against actions of state agencies which sometimes in their zeal to carry out their mandates of construction projects…overlook the impact on the environment which is so precious to us all” (1973 Senate Proceedings, May 10, 1973, p. 3260).
But Governor Meskill vetoed PA 72-153, saying it overlapped with existing federal and state requirements, would be too costly, and would be administratively onerous (Governor's veto message, May 19, 1972). The governor instead issued an executive order (Executive Order 16), partially implementing the concept of state agency environmental impact statements.
Senator Costello said SB 2069 was “basically the governor's executive order” with the additional provision that the public have access to and the ability to comment on state agency proposals. He said the Senate should adopt it because of legal advice that an “executive order is unenforceable and there is no way that we can truly know that our state agencies will carry out the important responsibility of evaluating the environmental impact of their projects” (1973 Senate Proceedings, May 10, 1973, p. 3262).
Costello acknowledged that the bill, while supported by many environmentalists, was weaker than many people wished. “I think from the testimony at our hearings and from the mail I received that most who are actively involved in the protection of the environment would seek a stronger act…It is not as strong as I personally would wish, but I think it is essential that we have a statement of environmental policy on our statute books.” Senator Murphy, who spoke in favor of SB 2069, also described it as weak. Murphy called the vetoed PA 72-153 a “superior” bill (1973 Senate Proceedings, May 10, 1073, pp. 3261-3263).
Representative Harlow brought the bill out in the House on May 17, 1973, calling it a “significant piece of legislation” that would put state agencies on the same footing as private industry. Representatives Ciampi and Pearson spoke in favor of SB 2069, although both legislators described it as weak. Representative Ratchford also spoke in favor of the bill (1973 House Proceedings, May 17, 1973, pp. 7182-7189).
The Senate approved the bill by a vote of 34 to 0 on May 10, 1973. It passed the House on May 17, 1973 by a vote of 137 to 0. The governor signed it on June 22, 1973.
PA 02-121, AAC Revisions to the Connecticut Environmental Policy Act
PA 02-121 (SB 5708) established an early CEPA “scoping” process, required a public scoping meeting if 25 people request one, and required sponsoring agencies to address substantive issues raised at such meetings in their EIEs.
Representative Stratton, in introducing the bill on the House floor, said it would make the CEPA process more efficient and more effective. “One of the concerns of many has been that the CEPA process has, sometimes out of frustration, ending up bogging a process down…It is my sincere hope that with this legislation we will no longer see any agency be tempted…to exempt a state project from what we require everyone else to do” (House Transcript, May 6, 2002, pp. 5015-16).
Among those testifying on the bill at an Environment Committee public hearing were Deputy Environmental Protection (DEP) Commissioner Jane Stahl, who said the scoping process and other provisions would “strengthen the utility of CEPA as a planning and environmental protection tool” (Environment Committee Hearing transcript, March 11, 2002, p. 1144).
Council on Environmental Quality (CEQ) Executive Director Karl Wagener acknowledged at the hearing that CEPA “does need some work,” and said his agency generally supported the bill (Environment Committee hearing transcript, p. 1165). OPM Undersecretary Brian Mattiello said CEPA needed to be modernized, and said the proposed bill was a good beginning. But Mattiello expressed some concern about the proposal committing agencies to a course of action too soon.
Representatives of the Connecticut League of Conservation Voters, the Connecticut Fund for the Environment, and the Connecticut Association of Conservation and Inland Wetlands Commissions, among others, spoke in favor of the raised bill. Environmental attorney Earl Phillips and Eric Brown, of the Connecticut Business and Industry Association, spoke against the bill, calling it incomplete.
The House amended SB 5708 on May 6, 2002, and approved it by a vote of 145 to 0. The Senate approved the amended bill on consent on May 7, 2002. Gov. Rowland signed it June 7, 2002. Among other things, the amendment (LCO 5125):
1. eliminated a requirement that a sponsoring agency develop a mitigation plan, and that OPM and DEP jointly enforce it;
2. eliminated a requirement that OPM and DEP investigate complaints concerning improper implementation of any such mitigation plan;
3. revised the public scoping process and timetable;
4. eliminated references under the law to environmental assessments and findings of no significant impact;
5. made the public scoping hearing discretionary, unless requested by 25 people or an association of 25 members; and
6. eliminated a requirement that certain environmental statements prepared after July 8, 1975 be submitted for agency review.
WHAT IS THE ROLE OF A SPONSORING AGENCY?
The agency responsible for the primary recommendation or initiation of actions is considered a sponsoring agency for the purpose of preparing environmental classification documents, EIEs, and findings of no significant impact. When more than one agency is involved in the primary recommendation or initiation of an action, one of those agencies must act as the sponsoring agency. The other agency must share the responsibility for the scope and content of documents prepared according to state regulations.
The determination of which agency is considered the sponsoring agency is based on:
1. the magnitude of its involvement;
2. its authority to approve or disapprove the activity;
3. its expertise concerning the action's environmental effects;
4. the duration of its involvement; and
5. the sequence of the agency's involvement (Conn. Agency Regs. § 22a – 1a-2).
The following summary of the sponsoring agency's role is taken from the OPM website, at OPM: Overview of Connecticut Environmental Policy Act. The sponsoring agency's responsibilities also are summarized in OLR Report 2004-R-0610 (attached).
According to OPM, sponsoring agencies consult their Environmental Classification Document to determine whether a CEPA study of a proposed action may be required. If an agency feels that the potential exists for significant impact, it should solicit comments from the public and other state agencies to determine whether there are any special issues or concerns regarding that project. This scoping process should be performed at a very early point in project planning to help ensure that it considers relevant environmental concerns in an adequate and timely manner.
If, after putting the proposed project through scoping, the agency determines that the potential for significant environmental impact exists, it prepares an EIE.
The sponsoring agency circulates the EIE to OPM, DEP, CEQ, the Historical Commission, other appropriate state agencies and the town clerk in the community where the action will occur. The sponsoring agency publishes notice of the EIE in the Environmental Monitor and in publications of general circulation.
Any interested party may comment in writing to the sponsoring agency. The public notice period must remain open for at least 45 days but may be longer at the discretion of the sponsoring agency. The sponsoring agency may hold a public hearing if it wishes or if one is requested in accordance with statutes and regulations.
At the close of the EIE comment period, the sponsoring agency reviews all comments and prepares a response to the substantive issues raised or modifies the proposal. The agency then prepares a Record of Decision.
OPM reviews the sponsoring agency's submittal of the EIE, all comments, responses, appropriate reports, supporting documentation and the Record of Decision. It then determines the adequacy of the EIE and of the process and advises the agency of its decision.
If the document is determined to be inadequate, OPM recommends changes or requests additional information. If OPM finds the document is adequate, the sponsoring agency may proceed with the project.
CAN A PRIVATE DEVELOPER CONDUCT A CEPA STUDY?
The regulations do not refer specifically to developers. However, a private contractor may conduct an EIE or finding of no significant impact if the contractor has no financial interest in the study's outcome. By regulation, a sponsoring agency may delegate the task of preparing EIEs and findings of no significant impact. When these documents are prepared under contract, the contractor must execute a disclosure statement specifying that it does not have a financial interest in the outcome of the action. If an environmental document is prepared by contract, the sponsoring agency and other participating agencies must provide guidance, participate in its preparation, and independently evaluate the document before it is generally circulated (Conn. Agency Reg. § 22a-1a-2(c)).
HOW ARE SECONDARY IMPACTS DEFINED?
CEPA regulations do not refer to secondary impacts, but refer instead to indirect effects, which they define as secondary consequences on local or regional, social, economic, or natural conditions or resources that could result from additional activities induced or stimulated by the proposed action, both in the short- and long-term (Conn. Agency Regs. § 22a-1a-3(a)).
Among the direct and indirect effects on the environment to be considered are the proposed action's:
1. impact on air or water quality, or on ambient noise levels;
2. impact on a public water supply system or serious effects on groundwater, flooding, erosion, or sedimentation;
3. effect on natural land resources and formations, including coastal and inland wetlands, and the maintenance of in-stream flows;
4. disruption or alteration of an historic, archeological, cultural, or recreational building, object, district, site or its surroundings;
5. effect on natural communities and upon critical species of animals or plants and their habitats; interference with the movement of any resident or migratory fish or wildlife species;
6. use of pesticides, toxic or hazardous materials or any other substance in such quantities as to create extensive detrimental environmental impact;
7. substantial aesthetic or visual effects;
8. inconsistency with the written or mapped policies of the Statewide Plan of Conservation and Development and such other plans and policies developed or coordinated by OPM or other agency;
9. disruption or division of an established community or inconsistency with adopted municipal and regional plans;
10. displacement or addition of substantial numbers of people;
11. substantial increase in congestion (traffic, recreational, or other);
12. a substantial increase in the type or rate of energy use as a direct or indirect result of the action;
13. the creation of a hazard to human health or safety; and
14. any other substantial impact on natural, cultural, recreational or scenic resources (Conn. Agency Reg. § 22a-1a-3(a)).
More information on CEPA can found in OLR Report 2004-R-0610 (attached), and on the following state websites:
Council on Environmental Quality: http://www.ct.gov/ceq/cwp/view.asp?a=987&Q=249024&ceqNav=%7C
Department of Environmental Protection: http://www.ct.gov/dep/cwp/view.asp?a=2709&q=324144&depNav_GID=1511
Office of Policy and Management:
OTHER STATES CEPA PROGRAMS
The National Conference of State Legislature reports that 17 states (including the neighboring states of Massachusetts and New York), the District of Columbia, Guam, and Puerto Rico have environmental planning requirements similar to the National Environmental Policy Act. The list of these states and the citations to their appropriate laws, can be found here:
In addition, a 2000 study by the Montana Environmental Quality Council summarized and compared environmental policy acts in 15 states. We have attached the portion of the study summarizing and comparing these acts. The chapter also can be found on-line at http://leg.mt.gov/content/publications/lepo/mepa_report/chapter5.pdf.
Links to the Massachusetts and New York programs can be found at http://www.mass.gov/envir/mepa/index.htm and http://www.dec.ny.gov/regs/4490.html.