Originally published January 28, 2010
This article was prepared by Nutter's Land Use, Permitting and Development Practice Group with primary authorship by Karen Z. Bell![](/images/woman.jpg)
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 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.