The value of sitting en banc and the Finley case

In the previous post I referred to the Connecticut Supreme Court's decision to sit en banc and decide all cases with the participation of all seven justices. This decision was announced on the Judicial Website as follows: "The new policy recognizes that the public has an interest in having every justice hear and decide every case, whenever possible. This will hopefully strengthen the precedential value of each opinion." http://www.jud.ct.gov/external/news/press293.htm. If the participation of seven justices strengthens the value of a decision, is a decision weakened by the participation of only two sitting justices?

The case of Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008) was decided in October 2008. The panel consisted of the retired (at the time of participation) Chief Justice William Sullivan, two sitting justices, Justice Flemming L. Norcott and Justice Peter T. Zarella, and Superior Court Judges Sandra Leheny and Julia Aurigemma. If the decision had affirmed previous holdings, this case would have evanesced into the penumbra. However, the Finley case is the first instance since the passage of the Connecticut Environmental Protection Act in 1971, that an appeal by environmental intervenors resulted in the overturning of the granting of a wetlands permit. An astonishing feat.

The reasoning? The majority opinion authored by retired Chief Justice Sullivan and joined by Justice Zarella and Judge Leheny, held it was "implicit;" id., 41; that the agency had not determined that the application was consistent with its regulations. Why? Because, inter alia, the agency attached a condition to the permit requiring the submission of a revised sedimentation and erosion control plan that implements all state regulations. The concurring opinion, authored by Justice Norcott and joined by Judge Aurigemma, rather than relying on the language of the permit condition, examined the administrative record. While acknowledging the deference shown to agency fact-finding, Justice Norcott found sufficient reason to conclude that the conditions did not specify how the deficiencies were being remedied. Both opinions state they acknowledge the validity of permit conditions and point to Gardiner v. Conservation Commission, 222 Conn. 98 (1992) as an instance of valid permit conditions.

I have tried to discern the bright line between the valid permit conditions in Gardiner and the invalid ones in Finley, but I am unable to do so. One condition in Gardiner required a full subsurface investigation of the area where a detention basin would be located to determine whether the basin's placement near an existing landfill would create pollution. Had the Finley decision found the Gardiner conditions no longer acceptable, I would have understood the reasoning -- although to break with stare decisis truly would have begged for more Supreme Court justice participation. (I explore the details of the Gardiner case in an article about the Finley case published in the CACIWC newsletter The Habitat, Winter 2009, Volume 21, No. 1. The article is available on my website, www.attorneyjanetbrooks.com and at CACIWC's at www.caciwc.org.)

Implicit in the majority opinion in Finley is the understanding that the agency should have denied the permit. Consistent with Supreme Court case law, the agency would have needed substantial evidence in the record to establish "actual adverse impact" to a wetlands or watercourse for the denial to be upheld. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 74 (2004) ("The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse.") (emphasis in original); id., 76-77 ("The [agency], however, made no specific finding of any actual adverse impact to any wetlands or watercourses.") Did the agency have actual evidence? There's nothing in the opinion to suggest that.

Which permit conditions that require the submission of further information will be upheld as in Gardiner and which will be the basis for overturning agency action as in Finley? Only time will tell, but this time it will be based on the decision of seven justices, which will benefit us all.