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The Supreme Judicial Court (SJC) recently issued a decision in Town of Canton v. Commissioner of the Massachusetts Highway Department et al., No. 10431, slip op. (Mass. Jan. 19, 2010) which has clarified the law governing appeals commenced under the Massachusetts Environmental Policy Act, G.L. c. 30, §§ 61-62H (MEPA).   
    
The appeal in this case was taken by the Town of Canton, seeking judicial review of a determination by the Secretary of the Executive Office of Energy and Environmental Affairs (the “Secretary”) that certified a Final Environmental Impact Report (FEIR) for the Westwood Station project, a large mixed-use development project located in Westwood, near the Canton line. The Town argued that the FEIR was inadequate because of its failure to address the proposed project’s traffic impacts.  

Under G.L. c. 30, § 62H, an action challenging an FEIR must be commenced no later than thirty days following the first issuance of a permit under the FEIR.  In this case, two state permits were issued several months before the Town filed suit – a Department of Environmental Protection (MassDEP) Beneficial Use Determination and a MassDEP sewer connection permit. Despite the Town’s arguments that (i) neither of these permits triggered the first issuance of a permit under the statute since the Town did not have notice of either, (ii) neither conferred on the Town standing to sue, and (iii) neither related to the Town’s concern regarding traffic impacts, the Superior Court dismissed the suit based on the Town’s failure to file its complaint within the applicable statute of limitations period (i.e., within thirty days after the issuance of the first permit).  

Judge Ireland of the SJC affirmed the lower court’s decision.  In his decision, Judge Ireland held that the MEPA statute should be interpreted in accordance with its plain language and, therefore, the provision requiring that an action must be commenced within thirty days following the first issuance of a permit refers “at the very least” to the first permit issued of those listed in the FEIR (i.e., the sewer use permit in this case). Notably, Judge Ireland left as an open issue whether the beneficial use determination, an approval not listed within the FEIR and not noticed, would be a “first permit” under the language of the statute, since it was unnecessary to this case.

To support his interpretation of the statute, Judge Ireland reasoned that the purpose of MEPA is to expedite environmental approvals, including litigation related to those approvals, and to allow a delay in litigation would contradict that intent. As to the Town’s lack of notice of the sewer use permit, Judge Ireland observed that the permit was listed on the FEIR and that, as an interested party, the Town had a duty to conduct its own due diligence to ensure it was notified of the issuance of such a permit.
    
Judge Ireland dismissed the Town’s argument that it would have lacked standing to sue under the sewer use permit, noting that the Town could have established standing under G.L. c. 214, § 7A by showing that potential injury to the environment was about to occur, without requiring a showing of specific injury. Even though the sewer use permit did not involve traffic considerations, it was the first step toward a development that may result in the harmful traffic impacts alleged by the Town:  “[F]irst issuance of a permit signifies an actual commitment of resources to advance the project to construction, which, in turn, would cause the alleged harm to the environment.”  

The decision provides greater clarity to parties involved in disputes regarding MEPA filings, confirming that challenges to the adequacy of filings can be brought only at the outset of the permitting process, even though the complete permitting schedule may span months or years.

This advisory was prepared by Nutter’s Land Use, Permitting and Development Practice Group. For more information, please contact your Nutter attorney at 617-439-2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.