COMMISSIONER OF ENVIRONMENTAL PROTECTION v. TIMOTHY MELLON et al., SC 17945

Judicial District of Hartford

 Environment; Attorney's Fees; Whether the Commissioner of Environmental Protection is Eligible for an Award of Attorney's Fees Pursuant to General Statutes § 22a-18 (e).  The plaintiff commissioner of environmental protection initiated this action pursuant to General Statutes § 22a-16 of the Connecticut Environmental Protection Act (CEPA).  After the trial court rendered judgment in her favor, the commissioner filed an application pursuant to General Statutes § 22a-18 (e), which permits a trial court to award attorney's fees and costs to, among others, any "person" who successfully asserts a claim under § 22a-16.  The trial court denied the application on the ground that the commissioner is not a "person" within the meaning of § 22a-18 (e).  In so ruling, the court acknowledged that the department of environmental protection is a state agency that falls within the definition of "person" as set forth in General Statutes § 22a-2 (c).  The court emphasized, however, that the definition of "person" in § 22a-2 (c) is applicable to CEPA "except where otherwise provided," and that the language of § 22a-16 militates against applying that definition to § 22a-18 (e).  The court noted that under § 22a-16, those who may maintain an action under CEPA include, among others, the attorney general, state agencies, and any "person."  It then opined that if "person" as defined in § 22a-2 (c) were intended to apply to "person" as used in § 22a-16, then § 22a-16 would contain superfluous language because the other entities identified in § 22a-16 all fit within the definition of "person" contained in § 22a-2 (c).  Accordingly, the court concluded that "person" as used in § 22a-16 must mean a natural person, and, therefore, neither the department of environmental protection nor the attorney general's office is a "person" within the meaning of § 22a-16 or § 22a-18 (e).  The court also found illuminating the fact that the entities identified in § 22a-16 and § 22a-18 (e) are identical, with the one exception being that the governmental bodies contained in the former are omitted from the latter.  These omissions, the court opined, strongly imply that the public entities are ineligible for an award of attorney's fees.  According to the court, this result is logical because unlike the department of environmental protection and the attorney general's office, which receive public funds for the purpose of protecting the environment, private parties require economic incentives to engage in environmental litigation that benefits the public.  In this appeal, the Supreme Court will determine whether the trial court's decision was correct.