Massachusetts SJC Defines Trigger for MEPA Appeal Period

Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, 2010

The Massachusetts Supreme Judicial Court (the “SJC”) has ruled that appeals challenging the certification of an environmental impact report (“EIR”) for a private project under the Massachusetts Environmental Policy Act, G.L. c. 30, §§ 61-62I  (“MEPA”), must be filed within thirty days of “at the very least, …the issuance of the first permit issued from those listed in the [Final] EIR” regardless of whether the first permit is related to the subject matter of the appeal or publicly noticed.  The Court left open the question of whether such claims must be brought within thirty days of the first issuance of any permit regardless of its inclusion in the Final EIR.  

For larger private projects that trigger MEPA review, the project proponent files an environmental notification form (“ENF”) with the Secretary of the Executive Office of Energy and Environmental Affairs (the “Secretary”) prior to receiving any permits or approvals from state agencies.  The Secretary then determines whether the project requires a more in-depth environmental impact report (“EIR”).  After public notice and a public review period, the Secretary issues a final statement as to whether the Final EIR (“FEIR”) complies with MEPA.  State agencies generally issue permits for  projects after FEIR approval.  Challengers to the Secretary’s certification of a FEIR for a private project must commence suit no more than thirty days after “the first issuance of a permit.”  G.L. c. 30, § 62H. 

In Town of Canton v. Commissioner of the Massachusetts Highway Department, SJC-10431 (Jan. 19, 2010), the Town of Canton (the “Town”) sought to challenge the FEIR submitted by developers of the Westwood Station project on the basis of adverse traffic impacts.  Westwood Station submitted a draft EIR in January 2007 and a FEIR in September 2007.  The Town commented on the traffic issues in both EIRs and the Secretary issued the certification of the FEIR on November 1, 2007.  As required by MEPA, the Town filed a written notice of its intent to challenge the certification of the FEIR in court based on its traffic concerns, but filed no lawsuit since no “permit” had issued triggering the thirty-day limitations period.  In January 2008, however, the Department of Environmental Protection (“DEP”) did issue a sewer connection permit for the project which was listed in the FEIR (the “DEP Permit”).  DEP did not publish notice of this permit or notify the Town directly.  Nine months later, in September 2008, MassHighway issued a finding under G.L. c. 30, § 61H, concerning traffic impacts  (the “MassHighway Finding”) and the Town filed suit within thirty days challenging both the FEIR and the MassHighway Finding. 

The developer argued the suit must be dismissed as untimely where it was filed more than thirty days after the “first issuance of a permit”-- the DEP Permit.  The Town asserted that the thirty-day period should not commence until an approval related to the subject matter of its challenge issued -- in this case the MassHighway Finding related to traffic.  The Town further argued that, even if it should have commenced its suit within thirty days of the DEP Permit, the time limit should have been tolled because there was no public notice of that permit.
Relying on the plain language of MEPA, the Court concluded that both the subject matter of the permit and the lack of public notice were irrelevant to triggering the thirty-day limitations period.  In so ruling, the Court left the burden on challengers of an FEIR to make inquiry as to whether any permits or approvals have been issued by any state agency.

For further information, please contact Brian C. Levey at blevey@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.