In Massachusetts, Regulatory Agencies Are Still (Almost) Always Right

The Massachusetts Endangered Species Act, or MESA, is similar in some respects to the federal ESA, but is definitely its own kettle of (endangered) fish.  Indeed, after the decision by the Supreme Judicial Court yesterday in Pepin v. Division of Fisheries and Wildlife, one could almost say that MESA is a blank slate, authorizing DFW to write any regulations it chooses that might arguably benefit species that are endangered, threatened, or of “special concern.”

MESA protects species two ways.  First, it authorizes DFW to establish “significant habitat.”  Permits for work in “significant habitat” may be granted if the “proposed action will not reduce the viability of the significant habitat to support the endangered or threatened species population involved.”  Perhaps due to the statutory authorization of takings claims following designation of significant habitat, that provision of the statute has been used a grand total of zero times since enactment.

Which brings us to the other relevant protection – the statutory prohibition on takes of species that are endangered, threatened, or of special concern.  Pursuant to that authority, DFW created a new category – not mentioned in MESA – known as “priority habitat” and created a separate permitting scheme for proposed developments in priority habitat.  The standard for obtaining a permit for work in priority habitat that will cause a take is that “there is a long-term net benefit to the conservation of the impacted species.”

Mr. Pepin did not appreciate DFW’s development of the priority habitat program and brought a facial challenge to the regulations, arguing that they exceeded DFW’s authority.  The argument was that DFW could issue separate regulations to prevent takes and that the priority habitat program might be largely valid, but that, given the constitutional protections explicitly built into the significant habitat program, DFW could not create and end-run around those protections by creating the priority habitat program without comparable protections.

Unfortunately for the Pepins, the legal part of this story is short.  As our Massachusetts readers know:

Duly promulgated regulations of an administrative agency are presumptively valid and “must be accorded all the deference due to a statute.”

When this extreme form of deference was combined with the “broad authority” delegated to DFW under MESA, it was game over.  Need I add that our SJC is extremely friendly to statutes whose purpose is to protect the environment?

I suppose there is no point to noting that the Court was simply wrong in describing the significant habitat provisions as a “flat bar against development.”  I suppose that there is also no purpose in noting that the SJC acknowledged that the significant habitat provisions have never been used by DFW, but refused to acknowledge what everyone understands in practice – that the priority habitat regulations were a (well-meaning) effort by DFW to fix a statute that, absent that fix, was too Draconian.  The Court was clearly not willing to explore whether that is the proper role of administrative agencies.


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