Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report. 

The EA also addresses the individual site assessment plans, or SAPs, that will have to be performed by each leaseholder. While BOEM retains the flexibility to determine whether the implementation of the SAPs is covered by the EA, there is certainly the suggestion that SAPs may be not require separate NEPA analysis.

The FONSI is of course not a full green light for wind development off the Mid-Atlantic coast. Once BOEM starts awarding leases, each lease-holder would ultimately have to prepare a Construction and Operations Plan, which would be subject to NEPA review and it would be quite surprising if individual wind projects were not obligated to prepare full EISs before proceeding to construction. 

Even so, establishing this process, and obviating the need for EISs prior to issuing leases and performing at least some SAPs, can only be helpful in getting siting of wind energy in this area off the ground.

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Just in case you are not sated with coverage about the Supreme Court argument in Sackett and the potential implications if EPA loses, I thought I would note that I did a brief (8 minutes) interview with LexBlog Network about the issues it presents. You can see it here. 

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A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.

So what’s the problem? The problem is that East Boston is a waterfront community. Indeed, arguments have long been made that, with the cleanup of Boston Harbor and the revival of other areas of the waterfront, East Boston should not be left behind. In that sense, the waterfront is, of course, a benefit.

The question now is of course what happens to the waterfront in fifty years. Will it still be waterfront or will it be land under the ocean? Today’s Globe story includes a map developed for The Boston Harbor Association, which purports to show the potential impacts of rising sea levels on Boston’s waterfront communities. It’s not a pretty picture. (Well, actually, it is, but you know what I mean.) Some East Boston residents want the potential impacts of sea level rise addressed before significant projects are built in East Boston.

As we noted last fall, the Commonwealth, as part of its implementation of the Global Warming Solutions Act, is trying to address adaptation comprehensively. The Secretary of Energy and Environmental Affairs issued the Climate Change Adaption Report in September 2011 (It also has a pretty picture, shown here, on the impact of sea level rise.) However, while the Adaptation Report includes much discussion, none of its recommendations have been operationalized to date and a lot of work will have to be done before regulations or – dare I say – guidance is issued.

Thus, for some time, these issues are going to be addressed on an ad hoc basis in the context of individual projects. At a certain level, I understand the concern and I’m all in favor of reasonable foresight. On the other hand, is ad hoc decisionmaking a way to decide how close buildings can be built to the water, or whether they need to be built on stilts? The state MEPA office is going to face this issue with increasing frequency in the coming years. Since I don’t believe in preemptive rants, I’ll hold off until we see how MEPA actually starts to handle these types of projects. They do have a lot of discretionary authority.

This really is a stay-tuned situation. All I can say now is that those who put their heads in the sand are likely to drown.

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Chapter 91 is in many ways my favorite Massachusetts environmental statute. After all, very few statutory regimes allow one to discuss the Colonial Ordinances of 1641-47, and where the waters ebbeth and floweth. The gist is that these waters, and the land under them, belong to the Commonwealth, in trust for its citizens. Of course, the modern details get more complicated, but that’s still the essence.

As Boston Harbor in particular has gotten cleaned up, and efforts to revive the waterfront have really picked up steam (thank you, Liberty Wharf!), an issue that has reared its ugly head is the requirement for projects subject to Chapter 91 to provide “Facilities of Public Accommodation.” This requirement is understandable at a certain level and can be a useful tool to ensure the ongoing revival of the waterfront as public space. However, what happens when a developer is required to devote the first floor of a project to an FPA, but there’s no public to accommodate? There are some waterfront locations where FPAs don’t really make sense. Indeed, the proof is often in the pudding; developers sometimes just cannot find tenants for FPA space.

That problem was the subject of the recent adjudicatory hearing decision in In re Matter of Navy Yard Four Associates, Ltd. The underlying facts and legal issues are somewhat complex and not really relevant here. What is relevant is that the licensee, known as “Navy Yard,” has a Chapter 91 license that, consistent with the regulations, requires that the first floor of the project be devoted to an FPA. Navy Yard sought to amend the license to get out from under the FPA requirement. The Recommended Final Decision came down against Navy Yard.

Commissioner Kimmell adopted the Recommended Final Decision, but, in what is most interesting in the Decision – and the reason for this post – he did not stop there. As the Commissioner noted:

            It is apparent that the legal wrangling in this case stems from the Navy Yard Four’s alleged difficulty in securing a tenant for a ground floor FPA.

            The paramount purpose of chapter 91 is to activate, preserve and protect public use and enjoyment of tidelands. While the FPA requirements have been highly successful in fulfilling this purpose and enriching our civic culture, it may be that in some instances FPA rules do not work as intended and interior spaces remain vacant. In my view, idle and vacant waterfront space does not promote the public use and enjoyment of tidelands, and represents a lost opportunit for the public.

            It is therefore incumbent upon the Department … to determine whether this problem exists, is widespread, and is attributable to FPA rules. If so, the Department should explore refinements to FPAs and consider alternative means of promoting the public use and enjoyment of the waterfront to address instances in which existing FPA rules do not secure these benefits.

To which, I can only add, it’s about time. Empty FPA space indeed benefits no one. 

I do not know what, if anything MassDEP will do with respect to FPAs. There are those who think that a legislative solution is necessary. I suspect that DEP disagrees. Either way, the Commissioner’s recognition of the issue and public statement about it in the Navy Yard Four decision is a positive first step.

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The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government; and Coastal Zone and Oceans. 

Certainly, the summary of potential impacts in Massachusetts is not a pretty picture – speaking metaphorically, anyway; many of the pictures in the report actually are pretty cool. For those who want a quick idea, take a look at the 100-year flood in downtown Boston under the high emissions scenario, on page 20 of the Report.

The trick is in choosing adaptation strategies that are cost-effective in the face of some substantial uncertainties. To give them credit, the Report’s authors are aware of the difficulties. We’ll see what happens when regulators start to consider concrete implementation of particular strategies that may limit development in certain areas or impose additional costs or requirements.

While the Report is too long to summarize here, a few highlights are worth noting:

*  An emphasis on combining mitigation and adaptation – look for more requirements to use low impact development approaches and to meet LEED building standards

*  A recommendation to increase buffer zones – do we take land out of development because it may be needed for flood control in 50 years?

*  Assessment of ways “to discourage and avoid siting in current and future vulnerable areas.” How do we decide what constitutes a vulnerable area and over what time horizon? Do we forbid construction? Require extensive insurance and rely on the market to control investment?

*  Consideration of the development of guidance “to fully implement” existing requirements that new buildings for “non-water-dependent uses” under Chapter 91 “be designed and constructed to … incorporate projected sea level rise during the design life of buildings.” Given existing requirements to devote the ground floor of such buildings to “facilities of public accommodation”, perhaps we could simply require owners to devote the first floor to salt water swimming pools!

Levity aside, this is serious stuff. The projections are certainly scary. That doesn’t make the regulatory decisions easy, however. Decisions regarding time horizons, discount rates, and how much to rely on regulations versus market incentives will be difficult, but getting them right will be critical to ensure that appropriate adaptations are made without adapting ourselves out of all economic growth.

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Some of the world's most well-known apparel companies have come under criticism from Greenpeace for not sufficiently monitoring and limiting industrial wastewater discharges by suppliers.  In a new report called "Dirty Laundry", Greenpeace highlights the wastewater discharges from two major manufacturers in China that supply products to a range of major brands -- including Adidas, Bauer Hockey, Calvin Klein, Converse, Lacoste, Nike, Phillips-Van Heusen and Puma.  

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While not ones to unnecessarily toot our own horns, the First Circuit’s decision in United States et al. v. Coalition for Buzzards Bay et al. is worth a read. We (specifically, Buzzards Bay Guardian Jonathan Ettinger, Amy Boyd, and I) have been representing the recently-renamed Buzzards Bay Coalition in this case for a number of years and yesterday’s decision represents both a victory for the Coalition and an important First Circuit precedent with respect to the National Environmental Policy Act (NEPA). 

In yesterday’s decision the First Circuit held that the Coast Guard failed to comply with NEPA when it promulgated a rule (the “2007 Rule”) which purported to expressly preempt certain provisions of the Massachusetts Oil Spill Prevention Act (MOSPA).

By way of background, the MOSPA was enacted in response to a spill of approximately 98,000 gallons of oil into Buzzards Bay in April 2003. The federal government filed suit against the Commonwealth, asserting that the MOSPA was preempted by federal law. (The Coalition intervened as a defendant to support the Commonwealth in defending the MOSPA). Following a district court decision and an appeal to, and remand by, the First Circuit, and while the case was pending once again before the district court, the Coast Guard promulgated the 2007 Rule. 

The Coalition and others believe that the 2007 Rule provides less protection against oil spills than does the MOSPA – for example, the 2007 Rule requires tug escorts only for certain single-hulled vessels transporting oil through the Bay while the MOSPA requires such escorts for single- and double-hulled vessels. But in the course of the rulemaking the Coast Guard relied on a Categorical Exclusion (CE) to obviate the need for the preparation of an EA or EIS, and did not consider the impact of this lessened environmental protection.  The Commonwealth and The Coalition argued that in relying on a CE and failing to perform a NEPA analysis, the Coast Guard violated NEPA. The District Court found that the Coast Guard’s reliance on a CE was erroneous, but held that such error was harmless. 

The First Circuit agreed that the Coast Guard’s reliance on a CE was erroneous because the promulgation of the 2007 Rule was “likely to be highly controversial . . . in terms of public opinion”, and thus triggered an “extraordinary circumstances” exception to the use of a CE. The First Circuit then disagreed with the lower court’s finding that such error was harmless. 

The Court distinguished the case from prior cases finding harmless error, stating that

 the sockdolager is that the Coast Guard did not perform and environmental analysis at all. Indeed, it made no site-specific appraisal of the potential environmental effects of its proposed action. For ought that appears, it took no “hard look” at the situation. It gave the matter the barest of glances and . . . made no ‘reasoned finding.’ . . . the absence of any [substantial] analysis is antithetic to a finding of harmlessness.

Thus, the Court made clear that the harmless error rule is only applicable where there is evidence that some substantial environmental analysis has been undertaken by an agency. In this case the administrative record did not show that “the Coast Guard ever analyzed, or even adequately studied, the environmental impact of its proposed action.”

The Court also rejected the Coast Guard’s argument that failure of the Coalition and Commonwealth to object to its reliance on a CE during the notice-and-comment period resulted in a waiver of such objections, stating that

. . . nothing in Public Citizen shifts the burden of ensuring NEPA compliance from the agency that is proposing an action to those who wish to challenge that action. Indeed, the Public Citizen Court stressed that ‘the agency bears the primary responsibility to ensure that it complies with NEPA.’

In reaching its decision, the Court did not address the issue of preemption.  As a result of the decision, the First Circuit vacated a previously issued injunction of the MOSPA, and the 2007 Rule will now be remanded to the Coast Guard for proceedings consistent with the Court’s opinion.

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I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.

First, it is not a unilateral effort to expand agency jurisdiction. Instead, it responds to the Supreme Court Rapanos decision. Given the lack of a majority decision, Rapanos certainly left both regulators and the regulated community scratching their heads. Moreover, although one of my concerns about guidance is that it can ossify, that is not the case here. The new guidance replaces EPA’s prior Rapanos guidance, issued in 2008.  EPA is entitled to conclude that the prior guidance did not accurately reflect the limits of CWA jurisdiction after Rapanos.

Significantly, in response to substantial pre-issuance pressure to shelve the guidance and instead pursue notice and comment rulemaking, EPA and the Corps have agreed both to take comment on this guidance and to undertake formal rulemaking. Thus, the guidance will serve only to clarify EPA’s and the Corps’ current interpretation pending issuance of a rule.                                                         

On the merits, the guidance seems to be a reasonable interpretation of Rapanos. Everyone knows that Justice Kennedy’s “significant nexus” test is not a model of clarity – that’s why guidance is appropriate. Regulated industries benefit from greater clarity – even if more wetlands will be found to be jurisdictional – because uncertainty imposes its own costs. While the American Farm Bureau Federation has already complained about the new guidance, I think we need to distinguish between complaints about the guidance per se and complaints which really go to the scope of the CWA itself. 

If the guidance itself is too long for you, EPA has provided a useful summary. The summary of the summary? The following waters are protected by the Clean Water Act:

• Traditional navigable waters
• Interstate waters
• Wetlands adjacent to either traditional navigable waters or interstate waters
• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
• Wetlands that directly abut relatively permanent waters

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a "significant nexus" to a traditional navigable water or interstate water:

• Tributaries to traditional navigable waters or interstate waters
• Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
• Waters that fall under the "other waters" category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

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In Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters.  The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company's Spruce No. 1 Mine proposal the death penalty, using its authority under § 404(c) of the Clean Water Act to veto a permit issued by the Army Corps of Engineers in 2007. As EPA noted in its press release, this is only the 13^th time in 38 years that EPA has utilized § 404(c) to veto a permit.

EPA’s decision resulted in howls of protest, not just from the mine’s owner, but also from the two Senators from West Virginia. Joe Manchin, who famously campaigned with an advertisement in which he shot a purported copy of cap-and-trade legislation, described EPA’s decision as a “shocking display of overreach.” 

EPA’s characterization was slightly different. The agency summarized the mine’s impacts as follows:

Burying more than 35,000 feet (more than 6 miles) of high-quality streams under mining waste, which will eliminate all fish, invertebrates, salamanders, and other wildlife that live in them;

Polluting downstream waters as a result of burying these streams, which will lead to unhealthy levels of salinity and toxic levels of selenium;

Causing downstream watershed degradation that will kill aquatic wildlife, impact birdlife, reduce habitat value, and increase susceptibility to toxic algal blooms;

Inadequately mitigating for the mine’s environmental impacts to high-quality streams , by using mining ditches, for example, to offset the functions provided by these natural streams; and

Failure to consider cumulative watershed degradation resulting from past, present, and future mining in the area.

While I’m sure that the owner will dispute some of EPA’s characterization, my money’s on EPA, overreach or not. The impacts of mountaintop mining are substantial and I don’t see a court rejecting EPA’s conclusion that they are, in this case, “unacceptable.”

To bring the situation back to Cool Hand Luke, what EPA and the mining companies have here is a failure to communicate, and EPA is the one in the Strother Martin role, wielding a very painful veto hammer.

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The Cape Wind project cleared another important hurdle yesterday with a 4-2 ruling by the Massachusetts Supreme Judicial Court, holding that the state Energy Facilities Siting Board (EFSB) can authorize local construction permits for the project’s transmission lines. The decision in Alliance to Protect Nantucket Sound Inc. v. Energy Facilities Siting Board is particularly significant because it means that the renewable energy project has all of the state and local permits it needs to move forward.  

In late 2007, after the Cape Cod Commission denied its proposed Development of Regional Impact (DRI), Cape Wind applied to the EFSB for a “certificate of environmental impact and public interest” -- a composite of all of the individual state and local permits required for the construction of the 18.4 miles of transmission lines that will connect the wind farm to the regional power grid. This suit, brought by the Cape Cod Commission, the town of Barnstable, and the Alliance to Protect Nantucket Sound, challenged the EFSB’s May 2009 decision granting the certificate to Cape Wind. In short, the SJC held that the EFSB had the authority to grant the certificate and upheld the Board’s substantive findings, which balance the environmental impacts of the transmission lines with the need for the project. 

A key aspect of the decision is the SJC's rejection of the petitioners' arguments that the EFSB should have reviewed “in-State” impacts of the wind farm, which is permitted exclusively by Federal authorities, rather than focusing solely on the impacts of the transmission lines, which require state and local permits.  Essentially, if the project is built in federal waters, the EFSB can trust the feds to get it right, the majority said.

Chief Justice Marshall (joined by Justice Spina) dissented, issuing a stern warning:

The stakes are high.  As we have recently seen in the Gulf of Mexico, the failure to take into account in-State consequences of federally-authorized energy projects in federal waters can have catastrophic effects on state tidelands and coastal areas, and all who depend on them. 

The decision also includes a lively debate about the implications of the public trust doctrine and the Chapter 91 licensing scheme in this context.

Writing for the majority, Justice Botsford concluded that the statute which authorizes the EFSB to issue certificates of environmental impact and public interest provides

an express legislative directive to the siting board to stand in the shoes of any and all State and local agencies with permitting authority over a proposed "facility"-- that is, a directive to assume all the powers and obligations of such an agency with respect to the decision whether to grant the authorization that is within the agency's jurisdiction, with regulatory enforcement thereafter returned to that agency.

Again, Chief Justice Marshall disagreed.  Reflecting on the SJC’s recent decisions in Moot v. Department of Envtl. Protection, (2007) and Arno v. Commonwealth, (2010), she reasoned that even in this case -- which has to do with the administration rather than the relinquishment of public trust rights -- the Legislature must act expressly. Here, Justice Marshall concluded,

the siting board has purported to act as the protector of the public's long-standing rights under the public trust doctrine without the necessary express legislative authority to do so.

Of course, underlying this debate is the important policy question of which picture of Nantucket Sound is more protective of the public trust?  The state, and now the SJC, have chosen.

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As many of you know, the Commonwealth's tidelands licensing statute, Chapter 91, is one of my favorites, for no other reason than that it gives me the opportunity to talk about where the "waters ebbeth and floweth."  Deriving from the Colonial Ordinances of 1641 and 1647, Chapter 91 is about as arcane as it gets – which, of course, lawyers are supposed to like. 

The short version is that the Commonwealth holds the fee interest in “Commonwealth Tidelands” – those below the low water line. While the Commonwealth can license private use of Commonwealth Tidelands, only the legislature, acting explicitly, can give up those rights. Private Tidelands, the land between high and low water, are owned by the upland owner, but are subject to public rights in “fishing, fowling, and navigation” – another reason why I love Chapter 91.

In a decision handed down today, the Massachusetts SJC made crystal-clear that nothing short of an explicit legislative act is sufficient to eliminate the public’s ownership rights in tidelands. In Arno v. Commonwealth, the “owner” of land in Nantucket that was filled in the 19^th Century sued the Commonwealth, essentially seeking a declaration that he was the fee owner of the land. His argument was that a prior owner had registered the land in 1922, and the Attorney General, in commenting at the time, did not object to registration or assert that the Commonwealth still owned the land. To the SJC, what the AG did – or intended to do – in 1922 was irrelevant. 

Neither the Land Court nor the Attorney General had the authority to divest the public of its rights in Arno’s parcel…. Only an act of or an express delegation by the Legislature could extinguish the public’s rights.

The decision is probably not a surprise following the SJC’s original Moot decision, but is nonetheless a lesson to those who would claim ownership in tidelands. If the waters ebbeth and floweth – or if they ever did – only the legislature can give them away.

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Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures, where those drainage structures ultimately deposited stormwater containing hazardous substances into Commencement Bay -- now, a Superfund site -- in Tacoma, Washington.  

I’m sorry, but if that doesn’t make you sit up and take notice, then you’re just too jaded. Under this logic, isn’t everyone who constructs a parking lot potentially liable for the hazardous substances that run off in stormwater sheet flow? 

For those who aren’t aware, phosphorus, the stormwater contaminant du jour, is a listed hazardous substance under Superfund. Maybe EPA doesn’t need to bother with new stormwater regulatory programs. Instead, it can just issue notices of responsibility to everyone whose discharge of phosphorus has contributed to contamination of a river or lake.

The Court denied both parties’ motions for summary judgment regarding whether the discharges of contaminated stormwater were federally permitted releases. Since the Washington DOT had an NPDES permit, it argued that it was not liable under § 107(j) of CERCLA. However, as the Court noted, even if the DOT might otherwise have a defense, if any of the releases occurred before the permit issued – almost certain, except in the case of newer roads – or if any discharges violated the permit, then the Washington DOT would still be liable and would have the burden of establishing a divisibility defense. 

If one were a conspiracy theorist, one might wonder if EPA were using this case to gently encourage the regulated community to support its recent efforts to expand its stormwater regulatory program. Certainly, few members of the regulated community would rather defend Superfund litigation than comply with a stormwater permit.

You can’t make this stuff up. 

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Yesterday, the Supreme Court decided, 8-0, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, that a Florida law which allows the State DEP to fill in submerged land (owned, under Florida law, by the State), and then to cut off the littoral owners’ rights to accretion of the beach front without paying compensation, was not a taking requiring compensation under the 5^th Amendment. The decision was fairly easy, even for the property rights wing of the court, because it concluded that Florida law had always provided for such a result, so that the action by the DEP did not change the private owners’ preexisting rights.

However, the decision masks both continuing deep divisions on the Court concerning Takings Clause issues and confusion, if not incoherence, in the Justices' thinking.  As I noted when the Court took the case, the Court in Lucas distinguished state regulatory action limiting owners’ use of the property from “restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” I think it's a specious distinction. We used to regulate by common law of nuisance. Now we regulate by statute and regulation. Why should the common law be treated differently by the Supreme Court for Takings Clause purposes than statutes or regulations? 

In yesterday’s decision, four members of the Court answered this question. It turns out, according to Justices Scalia, Alioto, Roberts, and Thomas, that judicial changes to the common law may also subject the government to a regulatory takings claim. The reason? It is that, according to Justice Scalia, “the Constitution was adopted in an era when courts had no power to ‘change’ the common law.” News to me. I hadn’t realized that there was a halcyon day when the common law was fixed and perfect. Thus, it turns out, common law restrictions on property avoid the taking label only if they existed as of the time of the Constitution.

Justices Kennedy, Sotomayor, Breyer, and Ginsburg concurred in the judgment (Stevens did not participate), but stated that it was premature to try to determine when judicial decisions might provide grounds for a takings claim. Justice Kennedy did emphasize that the plain language of the Takings Clause does not address what are now known as regulatory takings: 

The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain.

Of course, Justice Kennedy is right on this score – a point somehow ignored by Justice Scalia in his originalist approach to constitutional interpretation. 

I normally represent private property owners and there are certainly times when, it appears to me, the government tries to achieve what might be noble objectives on the backs of private owners, simply because it doesn’t want to bear the cost.  Nonetheless, I think that this issue isn’t that complicated and the proper resolution would eliminate most takings claims. If a private use of land unreasonably imposes costs on neighbors or the public, then that use can be restricted, either by courts or by regulatory agencies, without payment of compensation. That type of regulation simply isn’t a taking. And, yes, the definition of “unreasonable” may change over time. That’s life in the big city – or the beachfront. Get over it.

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I’ve been waiting to write this headline ever since the SJC took this case. Today, the SJC issued its long-awaited decision in Moot v. Department of Environmental Protection. For those of you who pay attention to where the waters ebbeth and floweth – or at least where they ebbed and flowed in 1641 – you know that this is the second time that Moot has been before the SJC.

After the SJC struck down MassDEP regulations which provided that landlocked tidelands did not need a license under Chapter 91, as the Commonwealth’s waterways statute is now known, the Legislature took a shot at fixing what would have been a major problem by passing new legislation specifically excluding landlocked tidelands from the need to obtain a license. 

Moot challenged the legislation, arguing that it completely relinquished all of the Commonwealth’s rights in private tidelands, without making the findings necessary to justify such a relinquishment. The SJC did not agree. The Court concluded that the Commonwealth has preserved its rights in landlocked tidelands, and noted that projects subject to MEPA must address project impacts on the Commonwealth’s tideland rights. In essence, the Court concluded that the oversight provided by MEPA was sufficient to demonstrate that the Commonwealth could and would still enforce its rights in landlocked tidelands. Since those rights are still protected, the Court concluded, the Legislature had authority to exclude landlocked tidelands from the need to obtain a license under Chapter 91. 

This is clearly the right result. The only question in my mind is the gymnastics that the Court had to go through to get there. The Court may have concluded that the Commonwealth has not relinquished all of its rights in landlocked tidelands, but does anyone think that the MEPA process will ever result in developers being required to make changes to their projects to protect those rights? I sure hope not. Certainly, the first developer forced to do anything different as a result of that process is not going to be a happy camper. It would have been cleaner for the SJC to acknowledge that the Legislature was effectively relinquishing the public’s rights in landlocked tidelands and to affirm that act. Nonetheless, this decision pretty much did what was needed and a large number of landowners – not just the developers defending this case – are breathing a lot easier this afternoon.

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Earlier this week, Energy & Environmental Affairs Secretary Ian Bowles announced the release of the nation’s first ocean management plan. The plan is similar, but not identical to, the draft plan issued last July. Here are the highlights

A Prohibited Area off the coast of the Cape Cod National Seashore, where most uses will be – you guessed it – prohibited

Multi-Use Areas, constituting approximately two-thirds of the planning area, where uses will be permitted if they comply with stringent standards for protecting marine resources

Renewable Energy Areas, where commercial- and community-scale wind projects have been found to be appropriate.

One significant element of the final plan, and one highlighted in Secretary Bowles’s press release, is that, where projects are proposed in areas including sensitive marine resources, it will be presumed that an alternative project outside the resource area would be less environmentally damaging. Project proponents would have to meet a balancing test, demonstrating that the project has public benefits which outweigh the detriment to the resource.

It’s going to take some time to digest the entire plan. However, most of the nation outside Houston has accepted the concept of zoning on land for almost 100 years – and land-based zoning affects private property. It’s difficult to argue with the concept that the Commonwealth should plan for resources – state waters – that it does own. In addition, having a defined framework for reviewing proposals to utilize state waters should help remove some of the uncertainty associated with the current ad hoc review that necessarily occurs in the absence of a plan. 

Deerin Babb-Brott – time to take a well-earned vacation!

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Public and private developers spend a lot of time talking about NIMBY, or Not In My Backyard. With the increasing number of coastal development projects, ranging from wind farms to LNG facilities to plans for casinos, we should perhaps be talking about another acronym: NIMO, or Not In My Ocean. Yesterday, a decision from the First Circuit Court of Appeals in Weaver's Cove LNG v. Rhode Island Coastal Resources Management Council gave some hope that NIMO will not mean that states can simply squelch development of ocean resources.

Weaver’s Cove, as originally proposed in 2003, was to be an LNG terminal  located up the Taunton River, in Fall River, Massachusetts. To address safety and related concerns, the proposal has been moved off-shore.

The only element of the project that is subject to the jurisdiction of Rhode Island authorities is dredging that would be necessary in Rhode Island waters. That dredging requires a federal consistency determination by the Rhode Island Coastal Resources Management Council, or CRMC. In addition, Rhode Island state law requires that the CRMC provide a license to the project, known as an Assent. Here, the CRMC refused to provide either the federal consistency determination or the state law Assent. Weaver’s Cove LNG sued, won in the District Court, and won again yesterday at the Court of Appeals.

The facts of the case are complicated and the Court limited the decision as far as it could to the case-specific facts. Nonetheless, there are two points to be gleaned from the decision that may be of broader import

The Coastal Zone Management Act contains a provision, specifically intended to prevent states from frustrating the purposes of the CZMA, which provides that, if a state fails to act on a consistency request within six months, the state’s concurrence is “conclusively presumed.” Here, Rhode Island argued that the clock hadn’t begun to run, because Weavers’ Cove hadn’t provided all of the information necessary for CRMC to make a consistency finding. The Court didn’t buy it. Again, the facts here won’t translate to other cases, but what will transfer is the Court’s refusal simply to accept Rhode Island’s request that the Court defer to a state agency’s interpretation of its own law. Calling the CRMC’s interpretation of Rhode Island law “untenable” and “clearly erroneous,” the Court rejected it and held that, because of the CRMC’s failure to act, consistency would indeed be “conclusively presumed.”

Perhaps even more significantly, the Court concluded that the Rhode Island law which would require that the CRMC issue an Assent before the project could move forward is preempted by the Natural Gas Act (NGA). While the Court did not find that the NGA explicitly preempted Rhode Island law or that it occupied the field, it did conclude that, in this case, state law conflicted with the NGA. 

Notwithstanding the Court’s efforts to limit its preemption holding, I think it will provide grist for preemption arguments in other cases, as will its reluctance to defer to state agency interpretation of state law, where such deference might create obstacles to the accomplishment of federal objectives.

It’s too much to say that this decision represents the end of NIMO. However, it’s also difficult to see this as totally abstracted from an awareness by the Court of the delays experienced by the Cape Wind project. We’ve got to figure out a way to get to an answer more quickly. The answer my be “no” to some projects, but it shouldn’t take six years to get an answer.

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In 1992, in South Carolina Coastal Council v. Lucas, the Supreme Court held that a state statute or regulation that denies a property owner all economic use of her property requires payment of just compensation under the Takings Clause. The Court distinguished statutes and regulations from restrictions inherent in background principles of the common law of nuisance – the latter types of restrictions do not require just compensation.

The Supreme Court announced earlier this week that in the fall 2009 term it will hear another, similar, property rights case. The Court will hear an appeal of a decision by the Florida Supreme Court holding that a beach erosion control statute did not unconstitutionally deprive landowners of their property rights without just compensation. 

The facts in Stop the Beach Replenishment v. Florida Department of Environmental Protection are somewhat obscure and relate specifically to the consequences of beach replenishment in Florida. However, it again does raise the question of how the Supreme Court treats statutes. Prior to the 1960s, governments pretty much regulated nuisances pursuant to common law police power. Apparently, exercise of such power has the constitutional blessing of the Supreme Court.

On the other hand – to note the obvious – since the 1960s, across the gamut of environmental police power issues, use of statute and regulation has overtaken reliance on the common law. For some reason, however, constitutional jurisprudence has not caught up with reality on the ground. The whole idea of the common law is that it is flexible and changes over time. Is there any doubt that, had there not been an explosion of environmental statutes and regulations, there would have been an explosion in the development of the common law of nuisance? It seems near certain that courts would have identified numerous additional uses of property over the past 40 years that would now be considered nuisances.

Why should the same regulatory outcome require compensation if taken pursuant to statute or regulations, but not if it occurs as a result of judge-made common law?   

(In the interests of full disclosure, the broad question of how courts treat statutes, as opposed to the otherwise developing common law, was raised by my then-Professor Guido Calabresi in his 1982 book, A Common Law for the Age of Statutes.  Judge Calabresi, your student has not forgotten.)

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I know it’s hard to believe, but some of you may not have realized that today is World Oceans Day. In connection with World Oceans Day, Senator Jay Rockefeller has written a letter to the White House in support of the concept of “ocean zoning.” Senator Rockefeller will also be holding hearings on the issue tomorrow. Among those testifying will be Deerin Babb-Brott, who is the Assistant Secretary in the Massachusetts Executive Office of Environmental Affairs and is in charge of Massachusetts’ first in the nation ocean zoning effort.

The Massachusetts effort is based on the Oceans Act of 2008, which called for development of a comprehensive ocean management plan. In other words, ocean zoning. Since enactment of the Act, EOEEA has been working on developing the required plan, with assistance from the Ocean Advisory Commission, which was created by the Act to help guide EOEEA’s development of the plan. The plan has yet to issue and, based on recent documents from EOEEA, it may be some time before the final plan sees the light of day.

Notwithstanding the complexities of the issue – or perhaps because of them – Senator Rockefeller apparently believes that federal ocean zoning would be appropriate. He may be right. Issues such as renewable energy and deepwater aquaculture may be of local concern, but do we really want a patchwork of local laws and regulations dictating policy on issues of broad national concern?  If we go that route, it won’t be very long before there is a yet more complicated set of exemptions and preemptions.

I’m sure that Deerin will not be advocating federal preemption of local ocean zoning efforts, but there is a part of me that hopes that Deerin’s testimony is so effective that he talks himself out of a job.

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In December, I posted about the decision in Canton v. Paiewonsky, in which Judge Fabricant held that a party seeking to challenge the certificate of the Secretary of Energy and Environmental Affairs approving an Environmental Impact Report must do so within 30 days of issuance of the first permit for a project – even if the plaintiff’s concerns about the project are totally unrelated to that permit and the plaintiff would not be harmed by issuance of the permit. As before, I’ll provide the disclaimer that this firm represents the plaintiff in the Canton case.

That acknowledgment aside, it is difficult to read today’s Appeals Court opinion in Hertz v. Secretary of the Executive Office of Energy and Environmental Affairs as saying anything other than that Judge Fabricant got it wrong. Hertz is technically not even a decision about MEPA. The plaintiffs in Hertz challenged an amendment to a municipal harbor plan. The Appeals Court ruled that they did not have standing, notwithstanding that they abutted the property that was the subject of the amendment to the plan, because they did not suffer a particularized harm that was protected by the municipal harbor plan process.

What is most interesting about the decision in Hertz is that, even though it is not a MEPA case, the Court’s analysis focused on the Supreme Judicial Court decision in Enos v. Secretary of Environmental Affairs – which is a MEPA decision and which is the case on which the Town of Canton relied for the argument its suit was timely. Reading the opinion in Hertz together with Enos, the conclusion seems clear that, had Canton sued to challenge the adequacy of the EIR upon issuance of the first permit issued to the project, Canton’s inability to allege that the issuance of the permit would cause it to suffer particularized harm would have meant that the suit would have been dismissed for lack of standing. That being the case, the statute of limitations cannot begin to run on issuance of the first permit; the statute of limitations has to begin to run on issuance of the permit about which the plaintiff is complaining, because only then has the plaintiff suffered a harm sufficient to provide it with standing to sue.

We’ll see what the SJC does with the appeal in Canton, but it still seems here that the better reading of the MEPA statute is that the statute of limitations for a suit challenging a certificate on an EIR must begin to run when the permit that is the subject of the plaintiff’s concern is issued, rather than when the first permit is issued, regardless of whether the plaintiff has any concerns about that first permit.

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