Great legal article about Environmental Justice and the proposed power plant, see below. This was in MassLawyers Weekly... With SJC boost, ‘environmental justice’ gains ground Power plant presents issue of 1st impression By: Brandon Gee October 16, 2014 In a decision that seems to have pleased no one, the Supreme Judicial Court upheld a review board’s approval of a controversial proposed power plant in Brockton, but also created new hurdles for future projects. At first glance, the SJC’s decision in City of Brockton v. Energy Facilities Siting Board would seem to be a total victory for developers, generally, and the Brockton Power project, specifically, as the justices rejected the objections of both the city and concerned neighbors to the siting board’s approval of the natural-gas power plant. The ruling, however, comes with a twist that should encourage environmental and civil rights activists going forward. In an issue of first impression, the SJC found that the siting board’s application of Massachusetts’ Environmental Justice Policy is subject to judicial review. And, while the SJC found the board adequately applied the policy in the case, the court suggested in a footnote that it may hold the board to a higher standard once it has had more time to digest the policy and “incorporate specific environmental justice principles into its consideration of petitions to construct generating facilities.” As a practical matter, the Brockton Power project is still on the ropes: In a related decision, Brockton Power v. Energy Facilities Siting Board, the SJC affirmed the siting board’s subsequent rejection of Brockton Power’s amended plans to use potable municipal tap water for cooling water in the plant. The original plan (the one blessed by the SJC in City of Brockton) to use treated wastewater from a city reclamation facility was scuttled when the city refused to sell such water to the project. ‘Lip service’? Environmental justice is an equal protection concept that, according to the state’s Executive Office of Energy and Environmental Affairs, “is based on the principle that all people have a right to be protected from environmental pollution, and to live in and enjoy a clean and healthful environment.” Advocates often fight the disproportionate siting of polluting facilities in or near low-income and minority communities. The former Executive Office of Environmental Affairs enacted its Environmental Justice Policy in 2002. Gov. Deval L. Patrick combined the state energy and environment offices under a single secretary in 2007, which broadened the policy’s reach. Brockton Power Co. submitted its application to the Energy Facilities Siting Board — or EFSB — that same year. “Underserved and under-represented populations ought not be burdened with all the polluting facilities in their neighborhoods because they lack the means to resist politically like more influential groups,” said Lisa C. Goodheart of Boston’s Sugarman, Rogers, Barshak & Cohen, who represented affected residents opposed to the project. “The Brockton Power case was the first time anyone said to the EFSB, ‘Hey, you’ve got to pay attention to this policy.’ They didn’t know what to do with it.” The policy has two specific requirements: enhanced public participation for projects in communities that meet certain demographic thresholds, and enhanced scrutiny of projects expected to increase air pollution beyond thresholds set by the Massachusetts Environmental Policy Act. The EFSB concluded — and the interveners challenging its decision did not dispute — that there had been ample outreach and public participation. The interveners did challenge, however, the board’s conclusion that the project was not subject to any enhanced review under the Environmental Justice Policy since the secretary of Energy and Environmental Affairs certified that the project did not exceed the Massachusetts Environmental Policy Act threshold. Veronica S. Eady of the Conservation Law Foundation, which filed an amicus brief in the case, said that the policy should have required more of the siting board. “Census data suggests that not only does the EFSB have to comply, but also do whatever it can to protect these classes,” Eady said, noting that asthma rates near the site of the proposed power plant are some of the highest in the state. “We would want to see a demographic and health study and a look at the dispersion of pollutants coming out of the facility. None of that was done.” Neither the Attorney General’s Office, which represented the EFSB, nor attorneys at the Boston firm Keegan Werlin, which represented Brockton Power, returned messages seeking comment. Before the SJC could settle whether the siting board had complied with the policy — or, as Goodheart suggested, “basically just gave it lip service” — it had to decide whether it even had a right to review the matter, given that the policy itself disclaims its creation of “any right to judicial review involving compliance or noncompliance.” The EFSB and Brockton Power contended that no judicial review was available. The SJC disagreed. Writing for the court, Justice Margot G. Botsford noted that state law “requires the board to determine whether ‘plans for the construction of the proposed generating facility are consistent with current health and environmental protection policies of the commonwealth’” and the Environmental Justice Policy “is among the ‘environmental protection policies of the Commonwealth.’” “It follows, therefore, that the EJ policy is subject to judicial review as part of the court’s consideration whether the board’s decision meets the requirements of § 69J¼, fifth par.,” Botsford wrote. ‘More process’ Seth D. Jaffe, an environmental compliance lawyer at Foley Hoag who was not involved in the case, said the SJC’s conclusion is troubling. “My concern is where the SJC is willing to ignore that language here, they can ignore that language in another case,” Jaffe said, referring to policy’s language denying its creation of any new legal rights or remedies. “The policy is directed at the agencies, and they are supposed to do what they are supposed to do. It’s just not subject to citizen enforcement.” Jaffe said the SJC’s disregard for such language is particularly concerning in the City of Brockton case since the policy was not originally intended to apply to the EFSB. Goodheart conceded that point, but said the Patrick administration was aware of and intended for the policy to become binding on additional bodies including the EFSB when it created the combined Executive Office of Energy and Environmental Affairs. Goodheart said she does not think the limiting provisions have been rendered meaningless. “You can’t go out and sue somebody because they violate the Environmental Justice Policy without some other legal mechanism that gets you into court,” she said. “But for [the policy] to have any meaning at all, the SJC has to look at whether the siting board made a proper determination. One of the lessons of the case is you don’t need a freestanding private right of action for environmental justice to become part of the fabric of siting decisions in the commonwealth.” Jaffe, however, said the lesson is merely that the SJC thinks “more input is always better and can never be wrong.” “I don’t think that’s correct,” the Boston lawyer said. “More process isn’t always better — it’s as simple as that. Process imposes costs.” Such costs could balloon significantly depending on how the EFSB and other regulatory agencies contend with a footnote in the decision that states that the issue of timing was important in the case as Brockton Power’s application was filed within months of the Environmental Justice Policy becoming applicable to the EFSB. While the SJC limited its review to the most specific requirements of the Environmental Justice Policy in the case, it signaled it may require more in the future given the policy’s “general, but affirmative” requirement that agencies “develop their own strategies to proactively promote environmental justice” through “rulemakings or other actions.” The footnote states: “There may be an argument that … the board … has an obligation under the EJ policy to incorporate specific environmental justice principles into its consideration of petitions to construct generating facilities. We do not reach the question, however, because even if the EJ policy did impose such an obligation, the board reasonably could not be expected to have carried it out in time to apply to its review in this case.” That also worries Jaffe, who said the policy is “sufficiently vague that it can be used to say almost anything. Nobody thinks Massachusetts is an easy place to do business in. This is an example of that.” Goodheart and Eady, meanwhile, see the footnote as a silver lining. “The timing issue kind of got them off the hook in this case,” Goodheart said. “Next time they won’t be able to get around this.” Meanwhile, Eady said she appreciates “the nod” of the footnote, but “absolutely would have preferred to see the court require the EFSB do an environmental justice analysis.” masslawyersweekly/2014/10/16/with-sjc-boost-environmental-justice-gains-ground/
Posted on: Fri, 24 Oct 2014 15:20:53 +0000
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