In GreenRoots, Inc. v. Energy Facilities Siting Board, the Massachusetts Supreme Judicial Court (SJC), for only the second time, had an opportunity to interpret the Environmental Justice Policy (EJ Policy) promulgated by the Executive Office of Energy and Environmental Affairs (EOEEA). The first time, in the 2014 case City of Brockton v. Energy Facilities Siting Board, the SJC decided, first, that the Energy Facilities Siting Board’s (EFSB) application of the EJ Policy was subject to judicial review, despite the EJ Policy’s express disclaimer that it doesn’t create any right to judicial review, and second, that agencies must provide greater public participation and increased scrutiny for projects near EJ populations that exceed certain environmental thresholds.
In GreenRoots the SJC clarified the second takeaway from City of Brockton, holding that the EFSB and other agencies under EOEEA’s purview must provide “enhanced public participation” and “enhanced analysis of impacts and mitigation” for projects that both 1) exceed the “Environmental Notification Form (ENF) threshold” for air, solid and hazardous waste, or wastewater and sewage, and 2) are located within 1 mile of an EJ population, or within 5 miles for projects that exceed the ENF threshold for air. Below ENF thresholds agencies still are “bound by ‘a general, but affirmative, requirement’ to ‘promote environmental justice’ in a manner consistent with its mission.” Particularly, agencies must “establish an inclusive, robust public participation program for key agency actions that…affect EJ populations.” As part of that process agencies must consider (but not necessarily adopt) strategies to increase public participation, such as scheduling meetings at convenient times and places for “neighborhood stakeholders,” translating key documents, providing interpreters at public meetings, outreach to community-specific local media, and using “collaborative approaches to problem-solving… to address public concerns.”
In GreenRoots, the project did not exceed the ENF thresholds and the SJC found that the EFSB met the general requirement of the EJ Policy by:
- publishing notices in multiple languages in local media outlets
- holding an initial public comment hearing
- hearing public comments over four days during the hearing for final approval, and providing simultaneous translation in Spanish at those hearings (albeit delayed and marred with Zoom technical difficulties—“the process could have been improved”)
- including evening hours to accommodate more participants
- requiring Eversource to hold focus groups regarding design and negotiate a community benefits agreement
GreenRoots also argued that, in an earlier proceeding before the EFSB, the agency failed to hold a public hearing “in each locality in which a facility would be located” when it held a public comment hearing in Chelsea but not in East Boston, where the proposed substation was to be located. The SJC ruled that this argument had been waived. In dicta, the court stated that notifying the East Boston residents and holding the hearing within 2 miles of the locality was acceptable, but in a footnote urged the EFSB to provide further clarification of the term “locality” through regulation or guidance.
The SJC granted “great deference” to the EFSB’s expertise concerning the resiliency of the project to sea-level rise, finding that the EFSB provided sufficient reason for approving a 40-year planning horizon (uncertainty about “electrical system needs and sea level trends”), especially given that the EFSB required Eversource to reevaluate its resiliency plan every five years.
In GreenRoots the SJC has made clear (again) that the EJ Policy creates a right to judicial review, and has clarified the two different standards, depending on whether the project exceeds ENF thresholds. The good news for project proponents is that if your project doesn’t exceed ENF thresholds, the “general” affirmative requirement to enhance public participation isn’t onerous. But keep an eye out for regulations or guidance on what the term “locality” means.
