On June 3, 2020, the U.S. Court of Appeals for the First Circuit vacated an air permit issued by the Massachusetts Department of Environmental Protection (DEP) and remanded the matter to the agency for further analysis. The case is Town of Weymouth v. Massachusetts Department of Environmental Protection. The First Circuit’s decision is linked here.
The case involves a fiercely opposed compressor station planned for existing industrial property in Weymouth, Massachusetts. This compressor is critical to Algonquin Gas Transmission’s Atlantic Bridge project, which will move natural gas from the Boston area to a new connection in Beverly, Massachusetts, to then be transported to consumers in New Hampshire, Maine, and New Brunswick.
The Town of Weymouth and other petitioners challenged many aspects of the air permit, and succeeded in forcing DEP to revisit its BACT (best available control technology) analysis. My colleagues Randy Rich and Emily Dupraz discuss the environmental and energy law implications of the decision in their blog post linked here. This post will focus on the Environmental Justice and noise aspects of the decision, in the context of permitting large commercial development projects in Massachusetts.
The petitioners claimed that DEP failed to comply with the Massachusetts Environmental Justice Policy (EJ Policy). The Massachusetts Executive Office of Energy and Environmental Affairs (EEA) first issued an EJ Policy in 2002 and updated it in 2017. The purpose of the EJ Policy is to encourage sustained efforts to ensure that environmental justice is evaluated in connection with actions by EEA agencies. For projects that require a DEP permit – in this case a DEP air permit – the EJ Policy is implemented through the Massachusetts Environmental Policy Act (MEPA) review process. The EJ Policy requires enhanced public participation for projects that exceed the Environmental Notification Form (ENF) threshold for air and are within five miles of an EJ population.
The compressor station is within five miles of an EJ population but does not exceed MEPA ENF thresholds for air, so the EJ Policy by its terms does not apply to the DEP permit proceeding. DEP nonetheless required enhanced public participation, which typically includes things like translation of documents and interpretation services at public meetings. The petitioners argued that DEP’s actions – even though not required – were inadequate. The petitioners relied on dicta in City of Brockton v. Energy Facilities Siting Board, a 2014 decision of the Massachusetts Supreme Judicial Court which suggested that EEA agencies have an obligation to consider EJ matters in all permit proceedings. The First Circuit did not take the bait, rejecting the petitioners’ argument and holding that DEP is only obligated to consider EJ matters if specifically required to do so under the EJ Policy.
Noise is treated as a condition of pollution under DEP’s air permit regulations. The Code of Massachusetts Regulations states, at 310 CMR 7.00:
- Noise is defined as “sound of sufficient intensity and/or duration as to cause a condition of air “
- Air pollution means “the presence in the ambient air space of one or more air contaminants or combinations thereof in such concentrations and of such duration as to: (a) cause a nuisance; (b) be injurious, or be on the basis of current information, potentially injurious to human health or animal life, to vegetation, or to property; or (c) unreasonably interfere with the comfortable enjoyment of life and property or the conduct of business.”
DEP also has a Noise Policy that defines in specific terms when emissions of sound are excessive. Under the Noise Policy, a source of sound will violate the regulation at 310 CMR 7.00 if the source “[i]ncreases the broadband sound level by more than 10 dB(A) above ambient” or “[p]roduces a ‘pure tone’ condition.”
The First Circuit rejected the petitioners’ argument that noise from the compressor station would cause a nuisance, which is an impermissible “condition of air pollution.” The court found that DEP’s regulations properly address noise and the Noise Policy establishes specific standards with which the petitioners don’t take issue. The court rejected the petitioners’ arguments that EPA and WHO noise requirements – which are more stringent than the Noise Policy – should apply. Further, although the Noise Policy doesn’t apply to construction noise or unplanned emergency events, DEP did require mitigation measures during construction and required the use of a blowdown silencer to muffle the noise from any blowdown.
The First Circuit’s rejection of Environmental Justice and noise claims as reasons to overturn the compressor station’s air permit is not surprising. DEP’s permit proceeding exceeded the minimum requirements of the EJ Policy and the Noise Policy by requiring enhanced public participation and noise mitigation where neither was mandated by the respective policies. This is consistent with our experience in DEP permitting. Enhanced public participation is common, even when not mandated by the EJ Policy. And DEP and permit applicants frequently work together to mitigate noise impacts even when mitigation is not required by the Noise Policy. We note, however, that DEP does strictly enforce the requirements of both the EJ Policy and the Noise Policy when they are applicable.