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.
Last week, I noted that the D.C. Court of Appeals had found that the National Association of Home Builders did not have standing to challenge a determination by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River are traditional navigable waters. On Friday, in National Association of Home Builders v. United States Army Corps of Engineers, the NAHB lost yet another standing battle.
This time, the NAHB was challenging the Corps’ nationwide permit, NWP-46, allowing discharges of dredge and fill material into certain upland ditches. The District Court had found that the NAHB did have standing, but ruled against NAHB on the merits. The Court of Appeals didn’t even let them get that far, once more barring the courthouse doors.
Aside from the NAHB’s bad luck in losing in the court of appeals twice in one week, what’s news here?
The news is that, once again, the Court has provided useful guidance regarding what regulated entities – or their trade groups – must allege to establish standing in these types of cases. The NAHB had asserted that NWP-46 imposes costs on its members because it is ambiguous and leaves members uncertain when they are in fact subject to CWA jurisdiction for filling ditches. Unfortunately for the NAHB, the Court concluded that the Corps has been asserting jurisdiction over upland ditches for years. Moreover, the Court pointed to an acknowledgement by the NAHB VP for Legal Affairs that the Corps had “consistently suggested that at least some upland ditches were subject to CWA jurisdiction.”
In short, the Court concluded that the NAHB’s injury was not traceable to the permit, but was instead traceable to the Corps’ underlying assertion of jurisdiction, which was not asserted for the first time in NWP-46. Indeed, as the Court noted, because the Corps had previously asserted jurisdiction over upland ditches, NWP-46 benefited NAHB members, by providing them a way to comply with the CWA that is less costly than the individual permit process.
As the two NAHB decisions make clear, a trade group asserting standing on behalf of its members – or those members suing on their own behalf – must address the traceability and redressability prongs of the standing requirement with particularity, and must establish both that the specific regulatory action being challenged is the direct cause of their injury and that vacating the agency action will redress that injury.
I’m sure that the third time will be a charm for the NAHB. 
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.
Late last week, Greenwire reported that EPA is delaying its proposed construction general permit, or CGP, for stormwater. The delay is certainly a victory for the real estate industry, which has been fighting hard to delay the rule and, in particular, its numeric turbidity limit. The industry had complained about the data on which the standard was based, calculation errors by EPA, and what it views as a 10-fold underestimate of the compliance costs.
EPA denies that the delay was a political decision by the White House or OMB and stated that it needs to gather more information about existing stormwater treatment technologies before issuing the rule.
We’ll see whether EPA gets any credit from the business community for the delay. They certainly won’t get any from environmental groups. It’s important to remember that the rule is actually the result of litigation brought by the NRDC, so EPA cannot continue to delay indefinitely or it will just find itself back in court. As is often the case, EPA is going to have a difficult time avoiding being caught between a rock and a hard place at some point on this rule.
It’s easy enough to complain about EPA; I’ve even been known to do it on occasion. However, in Massachusetts, we have a different problem. We let local municipalities regulate all sorts of matters in which they have no expertise. We even delegate to municipalities the implementation of our state Wetlands Protection Act. That’s how we end up with cases such as Lippman v. Conservation Commission of Hopkinton. Lippman didn’t make any new law, but it does illustrate what havoc local boards can wreak.
The Lippmans wanted to build a single family house on land subject to the WPA. They filed the requisite notice of intent. The Conservation Commission held several hearings. On June 16, 2008, there was a motion to close the hearing and issue an order of conditions. It failed. On June 30, there was motion to deny the order. That too failed. The chair announced that the commission was deadlocked and would not decide. On July 14, the Lippmans received a formal letter announcing the deadlock and notifying them of their appeal rights. On July 28, the commission decided to deny the order, but failed to issue any decision.
On July 30, 2008, the Lippmans requested a superseding order of conditions from DEP, which is the appropriate course when the local commission fails to act. On September 11, the commission “purported” – the court’s word – to issue a formal denial. Notwithstanding this purported denial, DEP issued a superseding order on September 22, 2008.
Faced with the commission’s denial and DEP’s superseding order, the Lippmans’ sought a declaratory judgment that the commission action was void and the superseding order controlled. Although the Lipmman lost in Superior Court, the Appeals Court reversed:
Where a conservation commission does not issue its decision within the required twenty-one day period and the applicant appeals to the DEP, it is the DEP’s superseding order that controls; any late-issued decision of the commission is without effect.
Why does this fairly trivial case matter? For one thing, it’s worth remembering that the Lippmans sought authority to build one single-family house more than three years ago. The commission failed to act more than three years ago. Only now has a court decided in their favor. Indeed, an appeal was filed concerning the superseding order. That appeal was stayed pending the court decision, but now will have to be heard before the Lippmans can actually build.
My firm anecdotal view is that this case is emblematic of the types of results one gets from local boards. However much one may complain about EPA, its decisions are more comprehensible, more predictable, and more transparent than one often gets from local boards.
Three or four years to get approval to build one single-family house? Cases such as this are recruitment ads for the Tea Party.
As I noted earlier this month, the Supreme Court denied GE’s certiorari petition seeking to challenge the constitutionality of EPA’s use of unilateral administrative orders issued under section 106 of CERCLA. It thus comes as something of a surprise that the Court today accepted a certiorari petition in Sackett v. EPA. The Sackets are appealing a decision by the 9th Circuit Court of Appeals holding that pre-enforcement review is not available to challenge unilateral administrative orders issued by EPA pursuant to section 319 of the Clean Water Act. Lest anyone think that this is simply the Court reining in that liberal 9th Circuit, the 9th Circuit decision followed the lead of all four other circuit courts that have already addressed the question.
So, not only did the Supreme Court grant cert. in a CWA case even though it denied cert. challenging a very similar provision under CERCLA, it did so without a circuit split to resolve.
CERCLA’s order provision does differ slightly from that of the CWA. CERCLA explicitly prohibits pre-enforcement review; the CWA does not. It seemed to me that, while I am firmly on the side of the challengers as to the practical import of unilateral orders, EPA’s legal authority remains fairly solid. As the Court of Appeals noted, even in the absence of a specific statutory prohibition, judicial review is prohibited as long as preclusion “is fairly discernible in the statutory scheme.” Given the distinction between orders and civil enforcement, which is separately provided for in the CWA, and that the CWA does provide for judicial review of civil penalties imposed by EPA, a fair reading of the statute would seem to preclude pre-enforcement review of orders. This conclusion is buttressed by the purpose of the order provision, which is allow EPA to move quickly in particular cases, and the legislative history, which also seems to support preclusion.
The Court’s order granting cert. identified two questions – both the statutory interpretation question and the assertion that a ban on pre-enforcement review violates the due process clause. However, the constitutional claim is precisely what the Court refused to hear in the GE case. Obviously, that is not binding precedent, but why would the Court deny cert. to GE only to grant it three weeks later to the Sacketts?
Whatever the answer, there is a lot riding on this case. Notwithstanding the denial of cert. in the GE case, if the Supreme Court allows pre-enforcement review of orders under the CWA, it will have repercussions beyond the CWA. The CAA order provision would certainly be on shaky ground and, if the Court’s opinion were predicated on constitutional concerns rather than statutory interpretation, CERCLA’s order authority would seem to fail as well.
I should be telling my clients not to get their hopes up, but it's hard not to get one's hopes up.
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:
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:
For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least one acre (or less, if the project is part of a common development plan that is greater than one acre). The revised CGP would replace the current CGP which is set to expire on June 30. EPA has proposed to extend the current CGP through January 31, 2012, in order to give it time to promulgate the new CGP in final form.
The revised CGP does make some changes. The most notable changes, summarized in EPA's Q&A on the proposal, are intended to incorporate into the CGP the provisions of EPA’s February 2010 effluent limitations guidelines rule, known as the C&D rule. These changes include new requirements concerning:
Sediment and erosion controls
Soil stabilization
Pollution prevention
Inspections
Stormwater pollution prevention plans (SWPPPs)
Buffer zones
The buffer zone requirement was included in the C&D rule, but EPA is now proposing to add significant flesh to the bones. Specifically, the rule would require a minimum fifty-foot buffer between the construction site and any waters of the United States which are located either on or immediately adjacent to the site. The rule would provide flexibility to allow the permittee to substitute additional sediment and erosion controls for some or all of the buffer, so long as the controls “achieve the equivalent sediment load reduction as an undisturbed naturally vegetated, 50-foot buffer.”
For my Massachusetts readers, the 50-foot buffer will seem very similar to the buffer zone already required under the MA Wetlands Protection Act regulations. The jurisdictional scope of the CGP will not be identical to Wetlands Act jurisdiction, but they should be fairly similar.
Comments on the proposed rule will be due 60 days following Federal Register publication.
As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is not supposed to announce new rules – only clarifying interpretation of existing rules. However, we all know what a slippery slope that can be. Second, notwithstanding the purported flexibility of guidance, how often do regulators on the street – those actually using the guidance, rather than those writing it – treat guidance exactly like regulations and expect the regulated community to follow it to the letter?
The problem was brought to the forefront again recently by the decision in National Mining Association v. Jackson, in which Judge Reggie Walton in the District Court for the District of Columbia stated that EPA’s mountaintop mining guidance likely exceeded EPA’s authority. Although Judge Walton denied plaintiffs’ request for an injunction because they had not demonstrated irreparable harm, he made clear that the plaintiffs are likely to prevail on the merits. Addressing the core issues I noted above, he stated that the EPA mountaintop mining guidance
Qualified as final agency action because, despite the representation that it is an interim document, it is nonetheless being applied in a binding manner and has been implemented in its current version even though the EPA continues to receive comments about it. Therefore,… it appears that the EPA is treating the Guidance as binding.
Judge Walton went on to conclude that the various documents at issue constitute “legislative rules because they seemingly have altered the permitting procedures under the Clean Water Act by changing the codified administrative review process.” He also found that the documents exceeded EPA’s authority, because they ignored “EPA’s limited role in the issuance of Section 404 permits.”
Relatively hard on the heels of the National Mining Association decision, Daily Environment Report this week covered efforts by industry groups to prevent EPA from issuing guidance interpreting the Supreme Court’s Rapanos decision regarding the scope of Clean Water Act jurisdiction over “waters of the United States.” I’m sorry, but does anyone think that such “guidance” would not be treated in practice as having the finality of regulation? If, under such guidance, certain types of situations are considered to be “waters of the United States,” does anyone doubt that such situations will be subject to CWA permitting requirements 100% of the time?
Agencies officials generally make two arguments in favor of guidance. One is simply to ask for recognition of the practical reality that getting formal notice and comment rulemaking accomplished is very difficult and often impractical in the modern world. The second is that guidance provides flexibility. However, if the regulators want the rest of us to recognize the practical realities involved in promulgating regulations, then they must recognize the practical reality that guidance almost always immediately ossifies and that those implementing it treat it as gospel. There is often little in it for the regulated community.
Until Rand Paul succeeds in dismantling the modern administrative state, the debate will continue.
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 13th 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.
It has long been understood that Massachusetts that the Commonwealth cannot meet its renewable energy goals with solar power alone. Solar is great, but really ratcheting up the percentage of energy supplied by renewable sources is going to take a big commitment to wind. In fact, Governor Patrick announced a goal of 2,000 MW of wind on- and off-shore in Massachusetts by 2020. There are currently 17 MW of wind power in Massachusetts.
Everyone knows the permitting travails – now, hopefully, over – that Cape Wind has faced. It is less known that on-shore wind has not been any easier to develop in Massachusetts. Yesterday, in Ten Local Citizen Group v. New England Wind, the Supreme Judicial Court released a major on-shore wind project from permitting appeal purgatory. The New England Wind project (perhaps still better known as Hoosac Wind) in Florida and Monroe, Massachusetts, was proposed in 2003. Not uncommonly for projects of this sort, the appeal that delayed project implementation had nothing to do with the merits of on-shore wind. It was an appeal over wetlands approvals needed for a gravel access road. By the time MassDEP issued a Superseding Order of Conditions, the opponents requested an adjudicatory hearing, the hearing was held, the ALJ issued a 78-page recommended decision rejecting the permit, the Commissioner issued a 31-page final decision affirming the permit and rejecting the ALJ’s recommended decision, the Superior Court affirmed the Commissioner, and the SJC affirmed the Superior Court, it was July 6, 2010.
I don’t know about you, but I’m out of breath just typing this history. There has to be a better way. It’s certainly safe to say that if wind projects – wherever located – take 7 or 8 years to permit, it’s going to be 2120, not 2020, before we have 2,000 MW of wind in Massachusetts. As some readers will be aware, the Administration has been supporting legislation to facilitate siting of wind power facilities in Massachusetts, but it hasn’t been enacted yet and the forces that make it difficult to obtain final permits in Massachusetts go far beyond the issues that would be addressed by the wind siting legislation.
For the lawyers among my readers, the decision breaks little ground. Yes, the Commissioner of DEP has considerable discretion in interpreting her own regulations. No, the ALJs who hear adjudicatory appeals and make recommended decisions are not entitled to any deference.
Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidance – effective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from discharges of mountaintop fill has adversely affected streams downstream of surface mining operations.
The guidance is fairly straightforward – and for those to whom is it not sufficiently simple, EPA has provided a six-page summary version. Basically, EPA has concluded that permits for mountaintop mining must contain WQBELs that will ensure that in-stream conductivity levels do not exceed 500 microsiemens per centimeter (500 uS/cm). If modeling suggests that mining activities will result in any level above 300 uS/cm, “EPA should work with the permitting authority to ensure that the permit includes conditions that protect against conductivity levels exceeding 500 uS/cm.”
If you’re wondering what those levels mean and how big an impact the requirement to impose WQBELs will have, E&E Daily reported that EPA Administrator Jackson stated last evening that there are "no or very few valley fills that are going to meet this standard."
Though the guidance is effective immediately, EPA is characterizing it as a proposal and will take comment until December 1, 2010.
Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will be 60 days after Federal Register promulgation) and sites larger than 10 acres 4 years after the effective date.
As expected, EPA did not take NRDC and Waterkeeper Alliance up on their suggestion that EPA impose post-construction controls. However, since EPA has already signaled that its long-term plan is to impose stormwater controls beyond the current universe of industry and construction sites, it seems at this point that broader stormwater regulation by EPA is more a question of when than whether.
Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach field associated with the facility would damage drinking water supplies and nearby wetlands. The Court affirmed the MassDEP Commissioner’s rejection of the abutters’ challenge.
As the Court noted
the “applicable standard of review is “highly deferential to the agency” and requires the reviewing court to accord “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it…. We give deference to the decision of an agency interpreting its own regulations … [and] do not intrude lightly within the agency’s area of expertise, as long as the regulations are interpreted with reference to their purpose and to the purpose and design of the controlling statute.”
As if that were not enough of a nod towards agency deference, the Court also noted, in the context of the plaintiffs’’ challenge to the monitoring requirements imposed in the permit, that
The Legislature “has chosen to put into the hands of an expert administrative agency the decision making regarding complex issues of environmental … science…, and has allowed the agency considerable discretion in determining monitoring of applicable parameters in order to carry out its duty….
Finally, the Court made at least one statement about the plaintiffs’ affirmative case that is sure to be cited by MassDEP and permittees in future citizen suits. In rejecting the plaintiffs’ argument that toxic household chemicals might cause environmental damage, the Court stated that the “regulations do not require the department to establish permit conditions based on the plaintiffs’ speculative concerns.”
So, what’s the upshot of Healer? It certainly confirms that, as a general matter, courts are not going to reverse agency decisions unless they seem really off-the-wall. On the other hand, it remains true that MassDEP does not always win and my own jaded view is that courts remain willing to reverse MassDEP, even when deference would require that the court affirm the agency, if the agency decision somehow rubs the court the wrong way.
In an statement this week likely to send chills down the spine of developers, EPA Administrator Jackson called on Congress to provide a clearer definition of wetlands subject to permitting authority under the Clean Water Act. As most readers know, the 2006 Supreme Court decision in Rapanos v. United States narrowed the scope of regulatory jurisdiction over wetlands. Unfortunately, the absence of a majority decision in Rapanos means that, at this point, no one knows quite how much narrower. I think that most observers at least triangulate around Justice Kennedy’s concurring opinion, which stated that waters or wetlands with a “significant nexus” to waters that are navigable in fact should be subject to regulation. However, uncertainty abounds.
Uncertainty imposes significant costs on regulated entities (not to mention EPA and the Army Corps of Engineers). Therefore, a statutory fix that simply eliminated uncertainty would probably be welcomed by the regulated community. Of course, the devil is in the details. If the uncertainty is eliminated by subjecting any land that is ever wet to the CWA, such legislation would probably not be welcomed by developers. Jackson’s statement that “I believe that the country benefits from something broader rather than narrower” is not likely to assuage developers’ concerns.
Time will tell whether compromise is possible in order to eliminate uncertainty that benefits no one.
Developers and others who appear before local boards know what an uphill battle it is to challenge decisions of those boards. After all, there’s a reason for the existence of the phrase “You can’t fight City Hall.” Of course, it’s never a good idea to fight City Hall unless you absolutely have to do so, but a recent decision from the Massachusetts Appeals Court gives some hope to those forced into that position by a board taking an extreme position.
In Pollard v. Conservation Commission of Norfolk, the local conservation commission, acting under its local wetlands bylaw, rejected a request for an order of conditions – a permit, to those of you outside Massachusetts – on the ground that the developer had not met its burden of demonstrating that the proposed work would not adversely affect a resource area. The developer had submitted a report by a consultant, in which the consultant opined that the project would not adversely affect the resource area and would comply with the bylaw.
The only evidence in the record before the commission was the report from the developer’s consultant. The commission took no other evidence. Instead, the commission simply concluded that the expert’s report was not credible. Since the developer had the burden of demonstrating compliance with the bylaw, the commission concluded that this was a sufficient ground on which to reject the permit application.
The Appeals Court concluded otherwise.
While noting that the commission was not required to credit the developer’s expert, even though uncontradicted, the Appeals Court concluded that the commission was required to provide a basis for its rejection of the expert, noting that “evidence of a party having the burden of proof may not be disbelieved without an explicit and objectively adequate reason.” Since the commission had made no effort, either in its decision or in court, to explain its rejection of the expert opinion, the Court had no way to determine whether the commission “decision was arrived at with fairness and without predisposition.”
Developers cannot necessarily take this decision to the bank. As long as local boards provide some reasoned basis for their decision, a successful challenge will remain a long shot. However, where a local board truly ignores available evidence, there is some hope that courts will ensure that reason prevails.
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