Category Archives: MEPA

MassDEP Regulatory Reform Release 2.0: Wetlands, Water, and Waterways

In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs.  As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait.  MassDEP has provided two separate helpful summaries of the changes, one concerning wastewater issues and the other concerning wetlands, waterways and water quality.

On the wastewater front, the most significant change is the complete elimination of sewer extension/connection permits.  MassDEP has acknowledged that those permits are purely redundant… More

Coming (Sort of) Soon To An Ocean Near You: 4 Gigawatts of Wind Power

As a follow-up to my post earlier this month on BOEM’s release of the Environmental Assessment for the Massachusetts Wind Energy Area, I just thought that I would note that, according to Daily Environment Report, Maureen Bornholdt of BOEM announced earlier this week at a public hearing on the EA that BOEM expects to start auctioning leases for the WEA by the fall of 2013. Of course, that’s just when the fun starts. Each lessee is going to have to do a full environmental review before construction even begins, so it will still be some time before we see electrons flow from the… More

Repeat After Me: There Ain’t No Such Thing as a Free Lunch

Yesterday, the Boston Globe reported that MassDEP is considering promulgating new regulations to manage noise from on-shore wind turbines. I sympathize with my friends at MassDEP, who are trying to implement a clean energy agenda and ensure that Massachusetts meets the aggressive carbon reduction targets in the Global Warming Solutions Act. This is no easy task in a home rule state that would have a fighting chance to win any national NIMBY championship competition. 

I hope against hope that the Department can take some action that will not unduly obstruct construction of wind projects, but that will, if not… More

Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?

Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind Turbines.” 

I hope that that’s the way the report will be read, but I’m worried. Perhaps I just have too many NIMBY-related scars. Whatever the reason, I am worried about the report’s statements that there

is limited epidemiologic evidence suggesting an association between exposure… More

Has the Battle Begun? A Look at One of the Front Lines of the Adaptation Issue

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… More

Dog Bites Man: Environmental Impact Edition

Casablanca36Earlier this week, Greenwire noted a Los Angeles Times story reporting that businesses are using the California Environmental Quality Act – California’s version of NEPA – as a tool of economic competition, trying to kill or delay projects for economic reasons. Much like Claude Rains, I am shocked, shocked, to find that there is strategic litigation going on here. In the past two years, I have defended multiple court cases and administrative hearings brought by a 10-citizens group against one particular client. Many of those claims have been premised on our… More

Coming Soon to Massachusetts: Adaptation to Climate Change

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… More

I’m As Mad As H___ and I’m Not Going To Take It Anymore: Massachusetts Historic Commission Edition

Last week, SouthCoastToday and the Herald News both reported that a large expansion by Meditech of its facility in Freetown was on life support, after the Massachusetts Historical Commission required Meditech to strip the top two feet of soil from 21 acres and sieve it for archeological artifacts, at a projected multi-million dollar cost. The Herald News quoted various local leaders calling the MHC’s decision “incomprehensible…arbitrary…bizarre… and unacceptable.” What they did not point out, and what is even more troubling than just the decision here, is that the best description of the MHC action is simply this: business as usual.

It’s… More

MEPA Case Law: A Lose-Lose Proposition

Yesterday, the SJC issued its eagerly awaited decision in Ten Persons of the Commonwealth v. Fellsway Development. I think that the SJC probably got it right. It says something about MEPA jurisprudence, however, that the decision is good for neither citizen plaintiffs nor for developers. I’d suggest that the legislature go back to the drawing board, but it won’t happen and, if it did, I wouldn’t trust the legislature to get it right.

Fellsway Development involves an proposed development within the Middlesex Fells Reservation. After running into certain obstacles, the developers reconfigured their project to avoid the… More

The Next Big Thing for the Future of Everything

In what might not be an overstatement, Seth has described Massachusetts’ Global Warming Solutions Act (GWSA), as "the future of everything".  If so, welcome to the future of the future of everything.  The GWSA requires the Executive Office of Energy and Environmental Affairs (EEA) to set a 2020 goal for state-wide reductions of greenhouse gas emissions, and, before January 1, 2011, to create a plan outlining how to get there.  Just in time, EEA yesterday released the Clean Energy and Climate Plan for 2020, which sets the 2020 emissions goal at 25% below 1990 levels (the maximum reductions… More

Dog Bites Man: NEPA Reviews Are Getting More Complex

Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” and she blamed, at least in part, agencies which “overreact to the fear of litigation.”

Not surprisingly, a speaker on the same panel from DOT felt otherwise. According to Helen Serassio, an attorney at DOT:

We’ve gotten to the point where they’re kind of out… More

There Is a Statute of Limitations For Challenging Permits In Massachusetts (Or, We’re Crazy Here, But Not That Crazy)

Those who operate industrial facilities or do development in Massachusetts often know far more than they would like about Chapter 214, § 7A, the environmental citizens’ suit provision of the Massachusetts General Laws. Chapter 214, § 7A, eliminates plaintiffs’ usual obligation to demonstrate standing and simply gives 10 citizens the right to sue to prevent or eliminate “damage to the environment.” The damage does have to constitute a violation of a statute, regulation, ordinance, or by-law, the major purpose of which is to prevent damage to the environment.

Chapter 214, § 7A, does not contain any statute of limitations. Does this mean that ten persons… More

No News Is Good News: Massachusetts Updates Its MEPA Greenhouse Gas Policy

Yesterday, the Massachusetts Executive Office of Energy and Environmental Affairs released its Revised MEPA Greenhouse Gas Emissions Policy and Protocol. For those who cannot get enough of this stuff, they also released a summary of revisions to the policy and a response to comments. On the whole, EEA took an appropriately moderate, incremental approach to revising the GHG policy. Indeed, it’s telling that the very first “change” identified by EEA in its summary is not a change at all – it’s EEA’s decision to retain the current case-by-case approach to determining appropriate performance standards and mitigation requirements. EEA decided not to… More

The CEQ Issues Draft Guidance on Consideration of Climate Change Under NEPA

Late last week, the CEQ issued its long-awaited draft Guidance on how to factor climate change into NEPA reviews. CEQ explicitly stated the draft is not effective at this time. CEQ will take comment for 90 days and “intends to expeditiously issue this Guidance in final form” after close of the comment period. Assuming CEQ does so, it will join several states, including California, New York, and Massachusetts, which already require that climate change be addressed in their state NEPA analogues.

The draft is very limited in scope at this point; CEQ may have decided that what is most… More

The SJC Gets MEPA Wrong Yet Again

I have never been a fan of specialized courts, but I have to admit that the Massachusetts Supreme Judicial Court’s MEPA jurisprudence is strong evidence for the other side. It’s almost hard to describe how badly the SJC has mangled MEPA. The most recent example is yesterday’s decision in Town of Canton v. Commissioner of the Massachusetts Highway Department. (Requisite disclaimer – this firm represented the Town of Canton in the case.)

In Canton, the SJC ruled that a party bringing suit to challenge the adequacy of the Certificate issued by the Secretary of Energy and… More

Massachusetts Releases First in the Nation Ocean Management Plan

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.

More on Guidance v. Regulation

Laura Rome of Epsilon has helpfully reminded me that the maturity of a regulatory program is also relevant to whether an agency should proceed by guidance or regulation.  With newer programs that remain in flux, the flexibility inherent in guidance – and the easier amendment process for guidance – counsels in favor of guidance rather than regulation.

Laura’s comment also reminded me that, a few years ago, NAIOP was sufficiently concerned about MassDEP’s use of guidance as an end-run around the formality of the regulatory process that it submitted to MassDEP suggested “Guidance on Guidance.”  The overarching… More

Regulations v. Guidance: Pick Your Poison

There are not too many areas of environmental law where practice intersects frequently with academic theory. One such area is whether agencies should use notice and comment rule-making any time they want to set forth policy or whether they should instead be permitted to use flexible guidance documents. The real issue from the practitioner’s point of view is the extent to which use of guidance permits street level bureaucracy a degree of unfettered discretion that is truly scary. Like Judge Roy Bean, these bureaucrats are the law West of the Pecos – or at… More

When Must Suits Be Brought Under MEPA; Too Late May Indeed Be Too Early

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… More

Massachusetts Takes Steps to Ensure That Stimulus Spending is Not Bogged Down in Environmental Reviews

It looks as though Massachusetts is going to at least try to avoid having lengthy environmental reviews create obstacles to spending its share of the federal stimulus package. A draft report prepared by the Commonwealth’s Permitting Task Force makes several recommendations which, if implemented, would indeed help to ensure that the money can get out the door and the shovels in the ground. Highlights include:

Allowing projects to proceed, at their own risk, during permit appeals. Providing that appeals related to any stimulus projects would be heard in the permit session of the… More

When Must Suit Be Brought Under MEPA? When is Too Early Still Too Late?

A recent Superior Court decision may significantly affect how appeals are conducted in MEPA cases. In Canton v. Paiewonsky, Judge Fabricant ruled that Canton’s challenge to the MEPA certificate for the Westwood Station project was filed too late, because it was not filed within 30 days of the issuance of the first permit issued to the project, even though the first permit had nothing to do with the basis for Canton’s challenge to the MEPA certificate.

First, a bit of disclosure: this firm represents the Town of Canton in this case. Nonetheless, I truly believe that,… More

The Massachusetts GHG Policy Expands Its Scope

In October 2007, the Massachusetts MEPA office issued its Greenhouse Gas (“GHG”) Policy, requiring certain limited categories of projects subject to MEPA to assess the GHG impacts of those projects and include mitigation of those impacts in the environmental impact review. In short, projects with obvious traffic or air emissions impacts were subject to the policy.

On August 8, 2008, Governor Patrick signed the Global Warming Solutions Act of 2008. Among other provisions, the Act provided specific statutory authority for the MEPA GHG Policy and provided that greenhouse gas emissions should be addressed in any state permits.

As a result of… More