cross-soundveto

MESSAGE FROM GOVERNOR RELL:
"Long Island Sound is one of Connecticut’s most precious natural resources, and in these final few weeks of summer, thousands will be enjoying its tremendous recreational opportunities. We must do everything we can to preserve and protect it, and make certain our children and grandchildren have the opportunity to enjoy it.”

State officials say Long Island Sound pipeline plan dead
DAY
Published on 2/27/2009

Hartford (AP) - Two energy companies have ended their nearly eight-year effort to build a natural gas pipeline in Long Island Sound between Connecticut and New York.
Houston-based Spectra Energy Corp. and Westborough, Mass.-based National Grid USA are withdrawing their appeal to the U.S. Commerce Department to overturn Connecticut regulators' denial of environmental permits for the Islander East project, Spectra spokeswoman Toni Beck said Thursday.

The companies also appealed the permit rejections all the way to the U.S. Supreme Court, but justices declined to hear the case in December.

Spectra and National Grid were proposing a nearly 50-mile pipeline, which included a 23-mile section in Long Island Sound from Branford, through the Thimble Islands to Wading River, N.Y., on Long Island's north shore. They submitted their first application to federal officials in 2001.

The companies said the pipeline would have been a “cost-effective and energy-efficient” way to deliver much-needed natural gas to the Connecticut, Long Island and New York City markets. Federal and New York regulators approved the plan.

But the Connecticut Department of Environmental Protection, Gov. M. Jodi Rell and state Attorney General Richard Blumenthal opposed the project, saying it would damage water quality, natural resources and prime shellfish beds.

”Islander East is dead,” Blumenthal declared Wednesday, while Rell called the companies' decision “a real victory for Connecticut and the quality of Long Island Sound.”

But Beck said the companies are not ruling out proposing another route for a pipeline.

”We still believe there's a need for this gas, but we just need to find the right project to get it there,” Beck said.

Spectra Energy, created from Duke Energy's natural gas businesses in 2007, runs more than 18,000 miles of natural gas pipelines in the U.S. and Canada.

National Grid serves more than 800,000 natural gas customers in New York state and Rhode Island, and distributes electricity to more than 3 million consumers in New York, Massachusetts, Rhode Island and New Hampshire.

DEP Denies Natural Gas Pipeline Plan; State: route would damage shellfish, natural resources
DAY
By Stephanie Reitz, Associated Writer
Published on 12/20/2006

Hartford — Connecticut environmental regulators have again ruled against building a natural gas pipeline through Long Island Sound.
The state Department of Environmental Protection informed Islander East Co. on Tuesday that its application had been denied because the pipeline's proposed route would damage water quality, natural resources and prime shellfish beds.

DEP regulators rejected the proposal in 2004, but a federal appeals court ruled earlier this year that they had not adequately explained that denial. They were told to review the permit application again.

DEP Commissioner Gina McCarthy said Tuesday that the agency is not opposed to construction of a pipeline across the Sound, but that the proposed route was not acceptable.

“Islander East just insists on putting it in the wrong place,” she said. “We can clearly strike a better balance than this between obtaining the energy we need and protecting the quality of our environment.”

A message left for a representative of Islander East was not immediately returned Tuesday.

The company, a partnership between KeySpan Corp. and Duke Energy, had argued that DEP's denial in 2004 was not based on science or water quality standards.

The 50-mile natural gas pipeline would run from Branford through the Thimble Islands and to the eastern end of Long Island.

McCarthy described the region as “some of the purest waters of the Sound and some of its most fragile and sensitive areas,” including hundreds of acres of state- and municipal-owned shellfish beds that might never recover from the damage.

The project was approved in 2002 by the Federal Energy Regulatory Commission. In 2004, the U.S. Department of Commerce approved the pipeline's construction, and found that there was no reasonable alternative to the proposed pipeline course.

Connecticut Attorney General Richard Blumenthal said Tuesday that the proposed route “well deserves denial and demise,” and that the DEP's decision affirms Connecticut's commitment to protecting Long Island Sound.

“The potential damage to wildlife and water quality are presented by DEP with compelling factual support,” he said. “I am prepared and determined to defend this DEP decision in court.”

Court denies immediate approval for gas pipeline
Maria Garriga, Register Staff
10/07/2006

In a partial victory for Connecticut, a federal court denied Islander East’s request for immediate approval of its pipeline project, overriding the state DEP’s refusal. However, the court also ordered the DEP to conduct another review, this time one that links its objections to actual evidence.

Both parties hailed the court’s ruling as a victory.

While the Federal Energy Regulatory Commission approved the final route for the Islander East pipeline, the state DEP denied the company a permit after concluding the pipeline could damage the ecology of Long Island Sound.

Islander East had requested the court override the DEP’s denial and grant immediate approval to start the project.

State officials lauded the decision for placing the authority back in the state’s hands.

"The court rejected Islander East’s request that our state be ordered to permit the pipeline — contrary to the DEP conclusion that it violates our water quality standards. The pipeline severely jeopardizes the Thimble Islands and other vital habitats, as well as water quality in the Sound," Attorney General Richard Blumenthal said in a press statement released Friday.

"In simple terms, this means that the court acknowledges the state’s right to protect our water quality and valuable environmental resources," said Branford First Selectwoman Cheryl P. Morris. "I am hopeful that based on the evidence showing the potential damage to our waters, to the Thimble Islands and to the town of Branford shellfish beds if the pipeline is constructed as proposed, that the DEP will once again deny the application for a water quality certificate."

Duke Energy officials, who run the Islander East project, also consider the ruling a victory because the court dismissed the DEP’s initial refusal. The appeals court ruled the DEP failed to sufficiently link its rejection to specific evidence.

"The Second Circuit Court of Appeals yesterday ruled that the Connecticut Department of Environmental Protection had no legal basis for denying a water quality certificate to the Islander East Pipeline Co. for the interstate natural gas pipeline project that Islander East proposes to construct across Long Island Sound," said Duke spokesman John Sheridan. "Islander East will provide the means to deliver natural gas supplies from throughout North America to markets in Connecticut, Long Island and New York City. This will exert a stabilizing influence on gas and electricity prices."

Blumenthal immediately took issue with Islander East’s position.

"Islander East’s claim that the court determined DEP had no legal basis for its action is blatantly false. The court specifically said, ‘We draw no conclusion as to whether the record evidence obligates CT DEP to grant Islander East’s application.’ The court said that the DEP failed to adequately explain the basis for its denial and that DEP should conduct an appropriate additional review of the evidence," he said Friday.

Connecticut officials, however, took note that the court declined to override the state’s authority in the DEP decision.

"The federal court’s decision affirms the authority held by the Department of Environmental Protection’s authority to reject a proposal that could potentially cause harm to Long Island Sound. With this affirmation, the department can now investigate, evaluate and reach a conclusion that is beneficial to Connecticut, while being mindful of our natural resources and the health of our environment," state Sen. Gayle Slossberg, D-Milford, said Friday.

The business community, however, was heartened that the court will give Islander East another chance.

"In the business community, we worry whether there is enough infrastructure for everybody. It could be electricity or natural gas. We will be watching this closely," said Anthony P. Rescigno, president of the Greater New Haven Chamber of Commerce. "To think this (pipeline) is only for New York is not true. There’s isn’t enough capacity in Connecticut for our own needs. We are all interdependent."

The court gave the DEP 75 days to conduct another review for an environmental permit.

"Basically, the court remanded our decision on the permit involved back to us to review and to reissue after we conduct a review," said DEP spokesman Dennis Schain. "We need to remain impartial because we are part of the regulatory process."

Federal court sends pipeline permit back to DEP
DAY
Oct 6, 8:31 PM EDT

HARTFORD, Conn. (AP) -- A federal appeals court has ruled that Connecticut environmental regulators must review again a permit by Islander East, whose plans to build a natural gas pipeline through Long Island Sound has been delayed for years by a series of state challenges.

In a decision late Thursday, the 2nd U.S. Circuit Court of Appeals in New York determined the DEP failed to adequately explain the basis for its initial denial of the water quality permit.

The company, a partnership between KeySpan Corp. and Duke Energy, had argued that DEP's denial was not based on science or water quality standards. The 50-mile natural gas pipeline would run from Branford to the eastern end of Long Island.

The court rejected the company's request for immediate approval and instead ruled the DEP must revisit the application and provide evidence to support either a denial or approval of the certificate.

"We believe the court made a fair and well-reasoned decision that clears the way for the (DEP) and Islander East to work together to address the few remaining issues that need to be addressed prior to construction," said Duke Energy Vice President Bill Yardley.

The project was approved in 2002 by the Federal Energy Regulatory Commission. In 2004, the U.S. Department of Commerce approved the pipeline's construction, and found that there was no reasonable alternative to the proposed pipeline course. But the project has been tied up in state and federal courts and regulatory agencies amid environmental concerns.

Connecticut Attorney General Richard Blumenthal said the route, which goes through the Thimble Islands, will damage wildlife habitats around the islands, degrade water quality and severely affect the shoreline. He vowed Friday to continue his opposition and is considering an appeal of a constitutional challenge to the federal Energy Policy Act.

"I will fight this destructive project with undiminished energy and redoubled determination," Blumenthal said. "I am pleased the judges affirmed Connecticut's right to review and regulate huge energy projects that threaten Long Island Sound's fragile environment."

Shellfish Bed Rights At Issue
By KIM MARTINEAU, Courant Staff Writer
August 23, 2006

BRANFORD -- The town is on the verge of revoking a local lobsterman's rights to a shellfish bed that lies smack in the path of the proposed Islander East gas pipeline.

The shellfish bed is a potential goldmine - not for the oysters and clams that may be lurking there, but because an energy company with deep pockets may need to dig through the bed to get its pipeline through if permission to build is granted.

Michael Torelli, 46, purchased the right to farm a small stretch of seabed off the coast of Branford before the town realized one of his two leased beds lay in the way of the planned Islander East pipeline. The state had asked the town not to lease any beds along the pipeline route, afraid that speculators might snatch up the leases and strike deals with Islander East, to allow the pipeline to be buried below their beds.

For several months now, the town has been trying to persuade Torelli to release his bed, identified on seafloor maps as a rectangle inscribed with the number "544." Complicating the matter, Torelli is in state prison, doing time for drunken driving. In a letter sent to Bergin Correctional Facility in Storrs two weeks ago, the shellfish commission warned Torelli he may lose both of his leases if he doesn't relinquish his claim to bed 544.

A Guilford shellfisherman, Chris Walston, has proposed seeding Torelli's adjoining bed with 50,000 clams purchased from a Long Island hatchery. But before Walston can plant the seeds, Torelli needs a license from the state. So far, no application has arrived, said David Carey, director of the Department of Agriculture's aquaculture bureau.

The fate of the Islander East pipeline, a partnership between Key Span and Duke Energy, is still undecided, as the company awaits two decisions in federal court. In June, the town shellfish commission decided to place all shellfish beds in the pipeline corridor off limits to clamming and oystering until the future of the pipeline is settled. A Branford shellfisherman, Nick Crismale, had asked the town for permission to lease several beds along the corridor. Under the deal, Islander East would have given him millions of free seed clams to plant after the pipeline went in. The town denied Crismale's request.

Torelli's lawyer, Gregory Cohan, said he's taking no action on his client's behalf concerning the shellfish beds and declined further comment.

Effort to rebury cable hits snafus
Andy Bromage, New Haven REGISTER
12/03/2004

NEW HAVEN — The reburying of the cross-Sound cable in New Haven Harbor has hit a few snags in recent weeks.
First, the barge doing the digging dropped anchor into a fisherman’s clam beds, officials said. Later, the barge allegedly failed to move for an approaching freighter.

The first incident was a tiff between Cross-Sound Cable Co. and Fair Haven Clam & Lobster, owned by Michael Fraenza. It began on Oct. 30 and was only recently resolved. Fraenza, who could not be reached for comment Thursday, apparently felt CSC was violating an earlier agreement by dropping anchor in a federal navigation channel under which he leases clam beds.

Cross-Sound Cable spokeswoman Rita Bowlby said the company did nothing wrong. "We did not drop any anchors that were not meant to be dropped," she said.

"We have not disrupted Mr. Fraenza’s clam beds."

The state agrees. Michael Grzywinski, a state Department of Environmental Protection analyst, said CSC is legally permitted to drop anchor in the channel. Grzywinski explained that while most shell fishers opt not to harvest from beds lying under shipping routes, they are allowed to do so.

The two sides worked it out, but not before going to court and eventually reaching a settlement, Bowlby said. Cross-Sound Cable is under mandate to rebury its 330-megawatt power line between New Haven and Shoreham, N.Y., to a proper depth. At the time the dispute occurred, the barge was working about a mile southwest of Lighthouse Point.

In the second incident, CSC’s barge reportedly failed to move for an approaching freighter in mid-November, said New Haven Harbor Master Mike Pimer. The barge is required to raise anchor and move within an hour of a ship’s arrival, "They didn’t pull the anchors out of the way and the pilot on this freighter was extremely upset," Pimer said. "It was a dangerous situation."

The freighter pilot, identified by Pimer as Capt. Ken Warner, could not be reached for comment Thursday. A U.S. Coast Guard spokesman did not return phone calls.

Bowlby denied Pimer’s story, saying no such incident ever occurred. "We’re in constant communication with the Coast Guard and harbormaster," she said. "When they need to come through, we get out of the way."

Karyn Gilvarg, city plan director, said the recent snafus, while relatively minor, are exactly the type of concerns that led the city to oppose the cable plan.

COMMUNICATION FROM THE SECRETARY OF THE STATE:
GOVERNOR'S VETO MESSAGE

The following communication was received from the Honorable Susan Bysiewicz, Secretary of the State, on the date indicated, read by the Clerk and ordered printed in the Journal.

April 19, 2002

The Honorable Susan Bysiewicz
Secretary of the State
30 Trinity Street
Hartford, CT 06106

Dear Madam Secretary:

I am returning herewith, without my approval, House Bill 5346, Public Act 02-7, entitled An Act Concerning Hydrogen Production Facilities and Hydrogen Conversion Technology and the Protection of Long Island Sound. I agree with members of the General Assembly that there needs to be a comprehensive assessment and plan to evaluate all pending transmission and pipeline projects. I also agree with the General Assembly that it is imperative that any plan should balance the necessities of sufficient utility resources to provide safe, reliable service to our people while preserving our environment. I share the concern of the General Assembly that the existing leaking cables in Long Island Sound must be replaced and that one of the most important factors to consider is the importance of protecting Long Island Sound, one of the State's most precious resources. To this end, current laws, enacted by the General Assembly, establish a process for the experts in our administrative agencies to review projects in the Long Island Sound with the overriding goals of upholding the State's environmental policies concerning all coastal resources and activities including fish and aquaculture - and I commend the legislature for enacting these measures.

Although I would like to support legislation that develops a comprehensive plan and gives us time to review pending projects, I cannot support legislation that does not provide for such a plan and might subject the State to substantial financial exposure because it is not constitutionally sound. Unfortunately, this act places a moratorium on all projects in the Long Island Sound, including one that has followed the process and has already received all necessary permits. Furthermore, this act fails to set forth a plan and creates a loophole that allows projects to go forward in a precious one-mile corridor of Long Island Sound. As Justice Holmes stated many years ago, "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for change. " Pennsylvania Coal Co. v. Mahon, 266 U. S. 393, 415 (1922).

My first responsibility as Governor is the citizens of the State of Connecticut. As I have stated publicly, we as a State cannot forget that when it comes to issues of energy reliability, we are an integral part of the New England power grid and that many of our sister states are dependent upon each other to meet our daily energy needs. Southwestern Connecticut alone represents 7% of New England's population and 14% of New England's electric demand and is recognized by federal and regional authorities as the most transmission-constrained area in New England. We also cannot forget that we have an obligation to protect our environment for future generations and we must be mindful of the environmental impacts that any increased infrastructure will inevitably have on our State.

I applaud the legislature for recognizing that undertaking a study to develop a comprehensive plan relating to electric power line crossings or gas pipeline crossings of Long Island Sound is a valuable exercise. However, as Governor, I realize that this is a small, albeit critical, piece of the puzzle. Issues involving energy reliability and the environmental impacts of energy policy are very complicated and need to be treated and viewed in a comprehensive fashion, rather than in a piecemeal approach. This act only deals with the very narrow issue of electric power line crossings or gas pipelines crossings of Long Island Sound. It does not deal with transmission or gas pipeline siting processes in the rest of Connecticut, nor does it evaluate these issues in relation to the State's larger energy and environmental needs. We, as a State, must work together to make wise choices that balance the necessities of sufficient utility resources to provide safe, reliable service to our citizens while preserving our environment.

I recently issued Executive Order No. 26 as a vehicle for examining these complicated issues in a productive and lawful fashion. This executive order gives us the time necessary to review pending proposals so that we can proceed in a thoughtful manner on the development of electric transmission and gas projects in Connecticut. This executive order covers not only projects in Long Island Sound, but projects in Southwestern Connecticut as well. Central to the review is an assessment of the present status, future potential, and environmental impacts of proposed methods for laying of power lines, pipelines or cables and an identification of possible measures that may be taken to mitigate environmental impacts and maintain the aesthetic integrity of regions in Connecticut where it has been determined transmission must be sited. The task force created by the executive order will also examine the potential of proposed expansions to mitigate or eliminate the adverse environmental impacts of the existing energy facilities in Connecticut.

The review under my executive order will be comprehensive and thorough, but will not reach back and unfairly penalize a company that has followed the process set up by the General Assembly. Unlike my executive order, Public Act 02-7 is problematic for the following reasons:

I) This legislation is fundamentally unfair. Section 3(b) of House Act 5346 is intended to prohibit the construction of a single, fully approved
electric power line crossing in Long Island Sound.

Members of both houses of the General Assembly have commented that the reason for the retroactive portion of this legislation is to specifically apply to one company, Cross-Sound Cable Company, LLC ("Cross Sound"). This act specifically targets a single company that has, over the past two years, obtained all required permits from federal and state agencies including: the Federal Energy Regulatory Commission ("FERC"), the United States Army Corps of Engineers ("Army Corps"), the Connecticut Siting Council ("Siting Council"), and the Connecticut Department of Environmental Protection ("DEP"). This retroactive moratorium is contrary to the findings of these administrative agencies and completely abrogates the administrative process the legislature established for the siting of these projects. It is important to recognize that it was the legislature that enacted the processes that this company diligently followed to acquire all the necessary permits. I do not dispute that it is the legislature that has the authority to make policies and change them when they deem necessary, however it is not sound public policy to allow a company to go through the entire regulatory process and then change the rules at the end of the process. The General Assembly, in their wisdom, could have enacted the same moratorium at issue here last session and I would have signed the act1. That action would have treated all pending applicants the same. In addition, the legislature could have enacted other less intrusive alternatives at any point during the administrative process to change the current law consistent with its environmental policy without retroactively affecting the rights of Cross Sound and without exposing the State to a multi-million dollar liability.

This act, however, singles out Cross Sound, which has been going through the administrative process of obtaining these permits for the last two years. Cross Sound's first application to the Siting Council was rejected in March of 2001, in part because of the Council's concern that the installation of the proposed cable system would result in unacceptable impacts to the benthic habitat and existing shellfish resources within New Haven Harbor. The company went through the time and expense of reconfiguring their proposal to satisfy the concerns of the Siting Council. The new application changed the route and included directional drilling to avoid actively harvested shellfish beds. The cable was also moved to below the sea bed in the navigational channel to avoid actively farmed oyster beds. The reconfigured proposal had a full review from the Siting Council, including 13 public hearings to afford the public opportunity to comment. Cross Sound also made applications to DEP and the Army Corps with its new route and both agencies, which have experts to analyze these issues as they relate to the Sound's fisheries, environment and commercial channels, determined that the impacts to Long Island Sound would be insignificant. DEP also declared that "[r]outine activities that don't trigger the need for permits, such as maintenance and harvesting of oyster beds in New Haven Harbor, suspend far more sediment for longer periods and at a time of year when organisms are more vulnerable than will the placement of this cable. " DEP and the Siting Council, two administrative agencies authorized by the legislature to determine such issues, both concluded that the new route minimized environmental impacts.

Contrary to statements made during the debate on the amendment related to the Cross Sound project moratorium, the company has begun work on the project. The construction of substations that will be necessary to receive and deliver electricity has begun, as has the directional drilling that is required to place the cable in Long Island Sound. The permitting process as established by the legislature has been fully satisfied and lawfully executed and it is patently unfair to penalize those who follow the process simply because, after the fact, the legislature determines that it wants to change the standards that apply. As debate in the House of Representatives revealed, the legislature simply did not like the result of the administrative process and therefore, sought to change the result retroactively through legislation. 2 As Executive Order No. 26 demonstrates, I, too, feel that it is important that for all future projects we follow a comprehensive plan, however, I cannot support legislation that retroactively tries to change that process for one company. Furthermore, I have deep concerns that this legislation could deter other companies from wanting to develop their businesses in Connecticut.

II) This legislation speaks of activities to be done after a comprehensive environmental assessment and plan but there is no plan currently in statute or in the act.

My reservations with this legislation go beyond questions of fairness. There are other internal problems with the language of Public Act 02-7. This act, as drafted, does nothing to solve the problems relating to the environmental impact of new energy infrastructure on our State's natural resources. Specifically, Section 3 assumes that a comprehensive environmental assessment and plan will be completed before the DEP and the Siting Council evaluates a pending application. While this is a good idea, this section is meaningless because it does not address the specifics of the plan. As the Office of Legislative Research noted in their recent analysis of this act, it "does not specify who will prepare the plan. " Further, the act does not completely define the scope of the evaluation or any other information from which I can assume that such a plan or assessment would be meaningful or productive. I cannot support legislation that allows such an important issue as the development of a comprehensive environmental assessment and plan to remain undefined.

As Governor, I can only judge the merits of an act before me based upon its language as passed by the legislature. The lack of specification regarding this assessment and plan causes me great concern. The legislative testimony available from the debate on this amendment reveals that the study mentioned in Section 3 of this act, which has yet to be voted upon by the General Assembly, addresses only the issue of who will perform the comprehensive environmental assessment and plan. This act is incomplete and I cannot and will not authorize a suspension of any process without a thoughtful and lawful procedure for undertaking an assessment or plan. The lack of an articulated plan reinforces that the intent of the entire act is to stop one particular project, rather than formulate a solution for these very difficult issues.

III) This legislation provides a mile-wide loophole and fails to define key terms.

This act has many other problems that are equally as troubling. Although the proponents of this legislation maintain that the purpose of the act is to protect the pristine environment of Long Island Sound, the language in Section 3(b) provides a mile-wide loophole for a Connecticut company to install any type of pipeline or cable during this one year moratorium. This mile-wide corridor from Norwalk to Northport, New York represents, according to DEP, some of the most productive shellfish beds and some of the most sensitive fisheries habitats in the entire Long Island Sound. If the legislature were truly concerned about the aquaculture and environment of Long Island Sound it would not allow this very broad language. As Representative Stratton indicated during the legislative debate, "the language that you are voting for does not, in and of itself, prohibit that merchant cable from going across from Norwalk to North Port if that accomplished anything. "

The acceptance of this troubling language by the legislature again causes me great concern and leads me to question the purpose of this act. If the legislature intended to not disturb Long Island Sound, how does it justify this broad language? If this act seeks to provide a one-year moratorium for all projects, how can this one-mile corridor be excluded? Why did the legislature not adopt more narrow language that would provide exclusively for the repair or replacement of the leaking line? The answers to these questions are not revealed in the text of this legislation and I cannot support an act that allows one company a mile-wide loophole during the moratorium while retroactively punishing another company that has followed all of the rules.

Furthermore, this act fails to provide a definition for the term "Long Island Sound. " This omission is problematic since there is no statutory definition of Long Island Sound and DEP has traditionally included all of Connecticut's harbors, streams, and navigable rivers in its interpretation of Long Island Sound. Nothing in this act tells DEP that this interpretation should be changed and therefore precludes DEP from allowing any necessary replacement or maintenance cable or pipeline in nearly all of Connecticut's major bodies of water for one year. It is important to recognize that nearly every major body of water that falls within DEP's interpretation of Long Island Sound contains a telephone, gas or electrical pipeline or cable. The maintenance and replacement of many of these innocuous cables would be prohibited by this legislation. The prudent course would be to clearly define what is meant by Long Island Sound, rather than enact legislation that is overly-broad and which might ultimately jeopardize other regions of the State beyond the Long Island Sound region.

It is also disturbing that the retroactive provisions of this act, which includes a moratorium on the already permitted Cross Sound project, did not have a public hearing. Although the underlying act that supports this moratorium did have the benefit of public hearing, the most controversial portions of the act were never made available for a public hearing. The public never had the opportunity to ask critical questions or give valuable insight regarding this act. Nor did the company that is targeted by the retroactive moratorium have the opportunity to make its case in front of the appropriate committee of cognizance. The lack of a public hearing on these sections reinforces my other concerns with this act and strengthens my belief that this act is fundamentally unfair.

IV) This Act presents serious concerns regarding its constitutionality and potentially exposes the State to significant financial liability.

As the Attorney General forthrightly admits in his opinion regarding this legislation, "no one can predict with precision or certainty how a court would rule on this question after the development of a complete factual record. " Although it is the role of the Judiciary to ultimately determine the constitutionality of the State's statutes, as Governor, I cannot support legislation that may be constitutionally unsound and could expose the State to millions of dollars in potential damages. Clearly, Cross Sound cannot argue a regulatory taking on the basis of ownership of the submerged lands it would utilize in the laying of its cable. Those lands are owned by the State of the Connecticut and held in trust for the benefit of our citizens. However, it is far less clear that Cross Sound could not show that it has a property interest in the lawfully issued permits and that deprivation of that property interest, either temporarily or permanently, would be compensable.

As the Attorney General acknowledges, these are very complicated issues and unlike the Attorney General, I do not want to presume what form the principal constitutional challenge against the State will take. Rather, it is my responsibility to examine all possible challenges and liabilities that the State could possibly encounter and to evaluate the implications of these challenges on the taxpayers of our State. If this act becomes law, Cross Sound will more than likely seek remedies for violations of their constitutional rights, which, if successful, could make the State liable to the company for its losses. The losses caused by this retroactive moratorium could include contractual penalties, foregone revenues, and increased debt costs. Section 3(b) is problematic from a policy and legal position for a number of reasons.

First, this legislation is problematic because it denies Cross Sound of its right to the permits and approvals it has received from Siting Council, DEP and other regulatory agencies. The company may have a strong claim of entitlement to these permits since the permits have already been granted and, but for the retroactive moratorium of Section 3(b), the company would enjoy the benefits of these permits. If this act becomes law, Cross Sound could claim that it violates their substantive due process rights under federal and state constitutions. To make this claim, Cross Sound would have to be able to demonstrate that a protected property interest exists and that the property interest was removed without a rational basis. In order to establish a property interest, the company must have a legitimate claim of entitlement to the permit, which it would appear to have since the project has been fully permitted.

The State cannot deprive a person of a protected property right unless the deprivation is reasonably related to a legitimate governmental objective. Here, although the General Assembly's goal is to protect Long Island Sound, it is constitutionally problematic since the company has already received all necessary regulatory approvals - approvals that were predicated on findings of acceptable or mitigable acts. The legitimate State interest in protecting the environment was achieved by requiring the project to undergo several regulatory reviews with respect to environmental impact. Moreover, the U. S. Supreme Court, as early as 1904, determined that legislative enactments directed toward stopping a particular development, and not aimed at promoting the general welfare, are arbitrary and capricious. Dobbins v. City of Los Angeles, 195 U. S. 223, 239-41 (1904). Such arbitrary and capricious action by the legislature could be found to be not reasonably related to a legitimate government interest, and therefore constitutionally unsound.

Section 3(b) of Public Act 02-7 requires that work that has already been fully permitted and has already begun on this project immediately cease. In essence, Cross Sound is being arbitrarily singled out by legislation that seeks to revoke prior governmental conclusions that the project is in the public good. All of this is being done at the expense of the company. Cross Sound may raise a legitimate claim that this legislation implicates the takings clause of both the United States Constitution and the Connecticut Constitution, which prohibits state governments from using legislation to take property rights "for public use, without just compensation. " U. S. Const. Amend. V. It is well established that regulatory action, such as this legislation, can effect a taking. A claim of a taking in this case requires the party to demonstrate that the infringed interest is a property interest and that this legislative action effectuates a taking of that interest.

Under both federal and state law, Cross Sound may make a viable claim that the permits to construct the cable, as well as materials necessary to construct it, fall within the definition of a property interest. In addition, this act may constitute an action that effectuates a taking of an interest. Judicial recognition of the constitutional right of a licensee or permit holder to procedural due process before a license can be taken away is not vitiated by virtue of the permitted activities occurrence on public property. The United States Supreme Court requires a fact-specific analysis to determine whether a regulatory taking has occurred, which includes a determination of the regulation's interference with distinct, investment-backed expectations, the character of the governmental action, and the degree of economic impact. In this case, the act could be viewed as interfering with Cross Sound's investment backed expectations. After diligently pursuing all necessary permits from each and every state and federal agency, Cross Sound may argue that it could not have anticipated that the legislature would effectively revoke these permits and it
had reasonable grounds to believe that they could complete and operate the project as scheduled.

The Superior Court has already determined that "[d]elay of the project beyond the initial April to May window will cause the Cross-Sound to incur from $45 to $60 million due to foregone project revenues, contractual penalties, and other costs. " New Haven v. Connecticut Siting Council, No. CV-02-0513195S (Ruling on Application for Stay Pending Decision, April 9, 2002), p. 15. The United States Supreme Court has held even temporary deprivations of property arising from legitimate state regulation or valid moratoria are compensable under the Fifth and Fourteenth Amendments of the Constitution. First English Evangelical Lutheran Church of Glendale vs. County of Los Angeles, CA, 55 U. S. L. W. 4781, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987). Clearly, with the possibility of claims as these and with the amount of potential damages being as substantial as they are, I cannot approve this legislation.

Second, this retroactive moratorium enacted by the legislature intentionally singles out Cross Sound cable for disparate treatment that may not be rationally based on any legitimate government objective and may be unconstitutional as applied to Cross Sound. In order to make a successful claim on these grounds Cross Sound would need to demonstrate that they were treated differently from other similarly situated individuals and that such treatment was based on considerations such on considerations other than rationally based public policy. In this case, Cross Sound is the only fully permitted electric cable project to which Section 3(b) applies. It appears that the legislature is intentionally targeting this project and treating it differently.

The State Supreme Court recently struck down a statute that prohibited DEP from approving the establishment or construction of a transfer station or volume reduction plant within one-quarter mile of a child day care center in a city with a population greater than 100,000 on the ground that, as applied, it violated a specific company's equal protection rights. City Recycling Inc. v. State of Connecticut et al, 257 Conn. 429, 778 A. 2d 77 (2001). The Court found "[the plaintiff's equal protection claim] compelling in light of the legislative history of [the public act] which demonstrates that the legislation was aimed solely at the plaintiff's permit application. " Id. at 449. The present situation is even more compelling due to the fact that unlike the City Recycling case where a permit application was pending, here all permits have already been received. 3 The legislative history of Public Act 02-7 clearly demonstrates that this section of the act is aimed solely at Cross Sound. Representative Jessie Stratton (D-17th District) stated during the debate, "[t]he language in lines 21 to 26 and actually some of the rest of this language would also impact a project that has been approved, usually referred to as Cross Sound Cable that would cross from New Haven to Long Island. "4 It appears that this section of the statute was narrowly drafted to apply solely to Cross Sound and that, in light of the findings of all the requisite administrative agencies, with regard
to environmental impact, the legislature has not demonstrated a rational basis for subjecting this project to a retroactive moratorium. Having signed the law that was subsequently deemed unconstitutional as applied in the City Recycling case, I cannot support legislation that has the probability of meeting the same fate.

Third, this act may unconstitutionally interfere with interstate commerce. The U. S. Supreme Court has established two tests to determine whether a state law offends the dormant Commerce Clause of the U. S. Constitution. The first is a balancing test that weighs the local benefits of a state law against the burdens on interstate commerce. The second test is a per se test that prohibits states from enforcing laws that discriminate against interstate commerce unless it has no other means to advance a legitimate local interest. It is questionable whether the retroactive moratorium established in the act before me would pass either test. When a state law retroactively takes from an out-of-state company their permits to a one hundred-foot wide corridor and grants an in-state economic interest a mile-wide corridor across Long Island Sound, it clearly raises concerns about the commerce clause.

It is clear that the act tries to achieve environmental benefits to the citizens of Connecticut. However, the State's regulating authorities have determined, after 13 public hearings and hundreds of hours of agency staff evaluation, that there will be minimal impact on the environment. In addition to the DEP and the Siting Council, the Army Corps, FERC, and the Connecticut Superior and Supreme Courts have been asked to stop the project based on environmental concerns. No regulatory or judicial body has found that the environment would benefit by halting the project. I am in no position to second-guess the experts, whether they are judges or administrative agency staff. When considering the minimal environmental impact associated with this project against the burden on interstate commerce, I must be mindful of the potential legal exposure the State faces if challenged for a violation of the Commerce Clause.

IV) Conclusion

Clearly, Long Island Sound is important to all Connecticut residents. I have always supported the protection of Long Island Sound. However, there are other ways for the State to pursue its legitimate interest in creating environmental policy for Long Island Sound. Over the past seven years, I have worked to protect the environment and dedicated substantial resources of the state to cleaning up and preserving Long Island Sound. Since 1994, Connecticut has been working diligently to implement measures to manage nitrogen removal and combined sewer overflow elimination. Indeed, since 1987, Connecticut has committed over a billion dollars to upgrading sewage treatment plants, which substantially decreases the nutrient loading to Long Island Sound. DEP is working cooperatively with the marina industry to develop pollution prevention techniques above and beyond compliance. Our State is a national leader and pioneer in wetland restoration. In the summer of 2000, I, along with the State Bond Commission, made available $1 million in research funds to be administered through the Long Island Research Fund to determine the cause of the die-off of lobsters in Long Island Sound. These and many other projects demonstrate the State's commitment to preserving and cleaning up Long Island Sound. It is important that we remain focused on this goal and continue to evaluate the environmental impact of any proposed infrastructure or
development in or around Long Island Sound.

I have also consistently maintained that energy reliability is a major public policy concern that needs to be balanced with our environmental goals. As I have stated previously, I support the creation of a comprehensive environmental assessment plan. Executive Order No. 26 goes a long way towards achieving such a plan. As a result of the Order, I have asked several environmental, energy, and independent experts to evaluate all pending and future transmission projects concurrently. By taking a comprehensive look at the environmental affects of each pending transmission project currently under review by the regulatory authorities, the State can prepare to mitigate any potentially adverse environmental impacts without unfairly penalizing a specific company who has already been through the regulatory process.

This act undermines the federal policy for regional interdependence in electricity transmission. This legislation threatens the long-term reliability of electric power systems in Connecticut and throughout the Northeast region. The Siting Council determined that this project would enhance the reliability and efficiencies of the electric system and the inter-regional electric transmission infrastructure here in Connecticut. The improvement and development of the electric system in Connecticut is critical to our future as a State. Maintaining the environment in and around Long Island Sound is of paramount importance and we must formulate a strategy for looking at these issues in a comprehensive, rather than piecemeal fashion.

The act before me is fundamentally unfair and incomplete. The act provides a mile-wide loophole that could expose the most precious corridor of Long Island Sound to development during the one-year moratorium. The controversial portions of this legislation never had a public hearing. The act references a plan that is not outlined anywhere in statute and is not referenced in any portion of this act. Likewise, the act leaves undefined the term "Long Island Sound", thus effectively barring DEP from approving any maintenance or upgrading of necessary cables or pipes in many of Connecticut's bodies of water. In addition, the potential constitutional issues raised in this act may expose the State to tens of millions of dollars in liability if faced with a lawsuit by Cross Sound - the only company adversely affected by this act. Therefore, I cannot in good faith sign this act.

For these reasons I hereby return House Bill 5346, Public Act 02- 07 without my approval, having carefully reviewed all aspects of this legislation

JOHN G. ROWLAND

Governor

Monday, April 29, 2002 - 6:20:08 AM MST
Connecticut, N.Y. take part in Sound planning; Group to study ferries as way to ease traffic
By BILL CUMMINGS bcummings@ctpost.com

Connecticut and New York officials are launching a new effort to find ways to reduce highway congestion by moving more freight and people from the roads onto Long Island Sound.

A months-long study will focus on developing ferry services between Connecticut ports and New York City, and may dive into the idea of establishing ferry service, or water taxis, between cities on the state's southwestern coast, such as Bridgeport and Stamford.

Finding ways to move more freight by water is also a component of the study, dubbed the Long Island Sound Waterborne Transportation Plan.

Although Connecticut and New York individually have studied transportation issues for years, the effort marks a new direction in which agencies from both states are jointly planning for the future.

"Our market is a part of [New York's] market, said James Wang, director of the Greater Bridgeport Regional Planning Agency. "We have to work with them and look beyond Connecticut.

The study, funded with about $300,000 in federal funds and in-kind contributions from the agencies involved, aims to map strategies for the next 25 years.

The study is being jointly conducted by the Greater Bridgeport Regional Planning Agency, the New York Metropolitan Transportation Council and the Southwestern Regional Planning Agency.

Representatives from other groups in Connecticut, New York, New Jersey and Rhode Island will also participate.

"We want to look at all modes, said Chris Ryan, a spokesman for the agencies conducting the study.

"We want to look at whether one area should be increased and if there is a need. The study may conclude there is not a need, he said.

A kickoff meeting is scheduled at 9:30 a.m. May 7 at Housatonic Community College in downtown Bridgeport. A similar meeting will be held later that day across Long Island Sound at Port Jefferson, N.Y.

The public is invited to attend the meetings, hear presentations and offer comments.

A position paper explaining the need for the two-state planning effort notes, "roadway and transportation networks serving the communities adjoining Long Island Sound are becoming increasingly congested. "As the region continues to grow, these problems will only become more serious.

To address those concerns, the three agencies plan to look at marine facilities, marinas, harbors and tributaries along the Sound in order to see where ferry or freight service could be increased.

There is now no ferry service between Connecticut and New York City.

In this area, there is regular ferry service between Bridgeport and Port Jefferson. In eastern Connecticut, a ferry crosses the Sound between New London and Orient Point, N.Y. Other ferries at New London take passengers to Block Island and Montauk, N.Y.

Wang said a still-emerging plan to move freight across the Sound, instead of trucking it along congested Interstate 95, will be part of the overall study. That concept is being studied by the GBRPA, the Bridgeport Port Authority and similar authorities in New York and New Jersey.

The initiative seeks to use barges to move freight containers between New York, New Jersey and Connecticut. Ports such as Bridgeport or New Haven would serve as a hub, where the containers would be off-loaded and hauled to final destinations by trucks.

In addition to getting many trucks off the region's crowded highways, advocates say the plan would also create jobs in either Bridgeport or New Haven, depending on which city the state picks for the pilot program. Ryan said market assessments, land-based connections and the potential positive and negative impacts of any new program will be considered during the study.

"The specific container proposals would be viewed as part of a more overall plan, he said.

"There is clear consensus, established by legislative mandate in Connecticut, and as a matter of policy and practice elsewhere in the region, that we must fully explore all feasible options to reduce transportation congestion, the three agencies say in a mission statement.

Wang acknowledged that, over the years, there have been many plans to better utilize the Sound as a transportation mode. He said ferry service proposals, for example, often fail because state governments fear the operations would require subsidies.

He said public money would be needed to build parking lots and ferry terminals, but the operations would be funded day-to-day based on passenger rates. Market studies are needed to determine if the idea is feasible, he said.

Bill Cummings, who covers regional issues, can be reached at 330-6230.