Environmental

Does the 9th Circuit’s rejection of Berkeley, CA’s municipal gas ban spell doom for Massachusetts’ own gas-banning “Demonstration Program”?

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We bring to your attention this post by our colleague Randy Rich of Pierce Atwood’s Energy Infrastructure Group on the 9th Circuit’s decision earlier this week in California Restaurant Association v. City of Berkeley, No. 21-16278. The court decided that the federal Energy Policy and Conservation Act, 42 U.S.C. § 6297(c), preempts the City of Berkeley’s ordinance banning natural gas piping within newly constructed buildings. Interestingly, the Commonwealth of Massachusetts was part of a group of states that filed an amicus brief urging the 9th Circuit to find no federal preemption and thus uphold the Berkeley ordinance.

Although the 9th Circuit’s decision isn’t legally binding here, we wonder how it will affect efforts to ban the use fossil fuels in the Commonwealth. Section 84 of Chapter 179 of the Acts of 2022 (pdf) authorizes the Mass. Department of Energy Resources (DOER) to establish a demonstration program allowing 10 cities and towns to adopt general or zoning

New Mass. AG continues hard line against local bylaws that hinder battery energy storage systems

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On March 1, 2023, Massachusetts Attorney General Andrea Joy Campbell’s Municipal Law Department issued a decision (pdf) disapproving two sections of the Town of Wendell’s amended zoning bylaw, one of which prohibited stand-alone battery energy storage facilities in all districts. As previewed in our blog post last month, based on a footnote in the former AG’s disapproval of the Town of Carver’s zoning moratoria on battery storage systems, Attorney General Campbell has taken the position that M.G.L. c. 40A, § 3 (colloquially known as the Dover Amendment) protects battery storage systems as “structures that facilitate the collection of solar energy”– even as stand-alone systems.

In the case of Wendell, the proposed bylaw amendment, which allowed battery storage in conjunction with solar installations but prohibited commercial or industrial-scale battery storage, was not, in the Attorney General’s view, “grounded in articulated evidence of public health, safety or welfare concerns sufficient to justify the prohibition.” There was no evidence in the record

Mass. AG Clamps Down on Local Solar and Battery Storage Moratoria

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Late last year, pursuant to her review authority under M.G.L. c. 40, § 32, then-Attorney General (now Governor) Maura Healey (the AG) issued a decision disapproving the Town of Carver’s moratoria on large-scale solar projects and battery storage systems. The grounds for the decision were straightforward and well-supported: citing the Supreme Judicial Court’s June, 2022 decision in Tracer Lane II Realty, LLC v. City of Waltham (see our blog post on that important opinion), and case law disfavoring moratoria generally, the AG determined that Carver’s moratoria violated M.G.L. c. 40A, § 3 (Section 3) by unlawfully restricting solar and battery storage systems “with no articulated evidence of an important municipal interest, grounded in protecting the public health, safety, or welfare […] sufficient to outweigh the public need for solar energy systems.” The AG found that instead of promoting the policy behind Section 3, the moratoria “undermined the state policy favoring solar energy” and that the town’s interest

And Environmental Justice for All? Mass. High Court Clarifies Application of EJ Policy

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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

Public Trust Doctrine – Mass. High Court Finds Municipal Harbor Plan Regulations Involve Unlawful Delegation of DEP Authority

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In this April 2021 blog post we discussed the Superior Court’s decision in Armstrong vs. Theoharides.  Since then the Supreme Judicial Court (SJC) took the case on direct appellate review and earlier this week the SJC issued a decision (pdf) affirming the Superior Court.  The SJC found that the longstanding procedure for approving Municipal Harbor Plans – in which the key decisions are made by the Secretary of Energy and Environmental Affairs (the Secretary) – involve an unlawful delegation of the licensing authority that the Legislature gave the state Department of Environmental Protection (DEP) under the state’s Public Waterfront Act, M.G.L. c. 91 (Chapter 91).

Municipal Harbor Plans (MHPs) are codified in regulations at 301 CMR 23.00 et. seq. (the MHP Regulations) and affect licensing by DEP under Chapter 91 and its implementing regulations at 310 CMR 9.00 et. seq. (the Chapter 91 Regulations). In order to obtain a license to

Mass. High Court: Three-Year Clock for Wetlands Protection Act Enforcement Actions Re-Starts With Every Sale of Property

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The Massachusetts Supreme Judicial Court (SJC) recently handed a victory to a conservation commission seeking to impose an enforcement order on a property owner who bought land containing unauthorized fill placed there by a prior owner 35 years before.  The SJC ruled that the “statute of repose” in the state Wetlands Protection Act, which protects property owners from enforcement for prior violations in certain situations, does not run with the land.

The Wetlands Protection Act, M.G.L. c. 131, § 40 (the Act), generally prohibits removing, filling, or altering wetlands without an order of conditions from a local conservation commission.  The Act also provides that “[a]ny person” who acquires property on which work has been done in violation of the Act shall restore the property to its original or permitted condition; but the Act limits the time period during which an enforcement action against “such person” may be brought.  Specifically, an action must be brought within three years of the recording of the deed (or

Fate of Municipal Harbor Plans Thrown Into Question

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The Superior Court’s April 1, 2021 decision in Armstrong v. Theoharides (pdf) was no April Fool’s joke and could have far-reaching consequences for Massachusetts waterfront development.  In a case against the Secretary of Energy and Environmental Affairs (EEA) brought by the Conservation Law Foundation and residents of the Harbor Towers condominium complex in Boston, the court sided with the plaintiffs and found that the Secretary exceeded her authority in approving the Boston Downtown Waterfront District Municipal Harbor Plan (the Boston Waterfront MHP). That approval would have allowed the construction of a 600-foot-tall tower at the site of what is now the Aquarium Garage, as well as the development of the Hook Lobster site, both on Atlantic Avenue in Boston.

Municipal Harbor Plans (MHPs) are codified in EEA regulations at 301 CMR 23.00 et seq. (the MHP Regulations) and affect licensing by the Department of Environmental Protection (DEP) under the state’s Public Waterfront Act, M.G.L. c. 91 (Chapter 91), and its

Breaking: Massachusetts Attorney General Strikes Down Municipality’s Attempt to Ban Gas Installations in Buildings

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On July 21, 2020, Massachusetts Attorney General Maura Healey struck down a by‑law passed by the Town of Brookline that would have disallowed most construction that included “fossil fuel infrastructure.” The Attorney General’s decision can be found here. This by-law would have prevented gas installations in new or substantially renovated buildings and would have required heat, hot water, and appliances to be all electric starting in 2021, with certain exemptions.

The Attorney General’s Municipal Law Unit is tasked with review of town by‑laws to assure they don’t conflict with state laws or the state constitution. This review is limited, and usually by-laws are approved unless there is a direct conflict. The Attorney General acknowledged the climate change policy behind the Brookline by-law, but confirmed that local laws cannot: (1) conflict with the state building code, (2) conflict with the state gas code, or (3) conflict with state law giving the Department of Public Utilities control over gas distribution.

The Supreme Judicial

First Circuit Compressor Station Decision Vacates DEP Air Permit, Addresses Environmental Justice and Noise Issues

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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

Mass. SJC Expands Time for Bringing Property Damage Claims Under Chapter 21E

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Lawsuits to recover cleanup costs and property damages resulting from environmental contamination can be expensive and time-consuming. Plaintiffs should be sure their claims are timely before embarking on the litigation path.

M.G.L. c. 21E (Chapter 21E), the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, contains a statute of limitations provision, Section 11A. Until now, the law was reasonably clear on when a property damage claim must be brought. In its recent decision in Grand Manor Condominium Association v. City of Lowell (pdf), the Massachusetts Supreme Judicial Court (SJC) elaborated on the meaning of “damage” under Chapter 21E and redefined what triggers the statute of limitations for a property damage claim. In Grand Manor the SJC ruled that the statute of limitations does not begin to run until the plaintiff learns that the damage to the property “is not reasonably curable by the remediation process.”

Section 11A(4) of Chapter 21E states that claims for property