II. Background; the Current Balkanized World of Environmental Protection
Any environmental attorney who practices across the full alphabet soup of environmental statutes -- RCRA, CWA, CAA, TSCA, CERCLA, FIFRA (not to mention their state counterparts) -- has experienced the frustration of finding that a cost-effective solution to an environmental problem is precluded by a provision of some other environmental statute. Clients, who don’t see the world as a random amalgamation of statutes, but through the prism of a specific facility or operating unit, experience this problem acutely. Unfortunately, that is not the way legislators see the world; legislators address one problem at a time, as such problems are brought to their attention by constituents or the news media. Love Canal leads to CERCLA. Acid rain leads to SO2 regulation under the Clean Air Act. PCB problems lead to TSCA. Now, concerns over global climate change may lead to regulation of greenhouse gases. Unfortunately, never the twain shall meet; or they meet, but not in a way that anyone could consider logical.
The closest that any statutes come to the promise of a comprehensive environmental statute is the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370(f), and NEPA’s state analogues, such as MEPA. These statutes are intended to require examination of overall project impacts. However, NEPA has significant limitations as a comprehensive environmental statute. First, its jurisdiction is limited to ”major Federal actions significantly affecting the quality of the human environment…”. NEPA, § 102(2)(C), 42 U.S.C. § 4332(2)(c). Second, it applies only to proposed future projects; it cannot be used to assess the impacts of existing facilities. Finally, and most importantly, NEPA has very limited substantive teeth. It is a purely informational statute. While an Environmental Impact Statement (EIS) that reveals significant potential impacts with no attempt by the proponent to mitigate those impacts may lead a permitting agency to deny necessary approvals, the substantive authority over a project remains with the permitting agencies.
Under NEPA, the agency proposing the action subject to NEPA prepares the EIS and then moves forward with the project, based on the conclusions of the EIS. A project opponent dissatisfied with the adequacy of the EIR must go to court, hoping that a federal judge will find the EIS inadequate. However, in Massachusetts, the project proponent must submit the Environmental Impact Report (we have to be different in Massachusetts; we have EIRs, not EISs) to EEA. EEA, after public comment, makes a formal determination whether the EIR complies with MEPA. EEA’s role in assessing the adequacy of the EIR -- including the statements in the EIR concerning how any adverse environmental impacts will be mitigated -- gives it a hook to use in requiring truly comprehensive review of new projects.
Ultimate permitting decisions in Massachusetts are still made by other agencies given such jurisdiction by the various substantive environmental laws. Historically, participation by permitting agencies in the MEPA process has sometimes been fitful at best. The question environmental practioners are now trying to answer is whether these policies are simply the first steps by EEA to position the MEPA process as the focus of comprehensive environmental protection review in Massachusetts.
III. The Details of the New Policies
If a project is subject to the GHG Policy, the project’s proponent must quantify the potential annual GHG emissions from the project in the EIR. Specifically, project proponents must assess potential GHG emissions from three different sources:
· Direct Emissions from Stationary Sources. Stationary sources include boilers, heaters, ovens, or furnaces (including periodic sources, such as emergency generators).
· Indirect Emissions from Energy Consumption. Indirect emissions result from heating, cooling, electricity, and/or steam used at a project site.
· Indirect Emissions from Transportation. Transportation-related emissions include emissions from employees, vendors, and customers.
In other words, this policy is not applicable only to power plants, and it does not require assessment only of the direct GHG impacts of a project. Instead, it requires a comprehensive assessment of indirect impacts as well, including GHG emissions from travel to and from the project and indirect energy use associated with the project.
What About Mitigation?
Although the cost to prepare the required analyses will not be trivial, EEA has worked hard with the real estate industry and other stakeholders to try to craft approaches to assessing GHG impacts that will be manageable for project proponents. EEA has also put one other significant carrot before project proponents. If a proponent offers to implement “exceptional measures” to limit GHG emissions, EEA may allow the proponent to opt out of the GHG quantification analysis. However, at this point, it is not clear what would constitute such “exceptional measures.” Would electricity from a renewable source qualify? How about agreeing to design a building to a certain level of LEED certification?
Given EEA’s apparently real flexibility regarding the assessment side of the equation, the rubber will really meet the road for the GHG Policy in how EEA approaches mitigation. The GHG Policy is clear that it is not intended merely as a data gathering device. EEA repeatedly emphasizes that proponents will have to assess potential mitigation measures and must “explain which alternatives were rejected, and the reasons for the rejection.”
The GHG Policy could be seen as merely a tweak -- if a significant one -- to MEPA in order to address the significant threat posed by global climate change. However, the comprehensive nature of the policy, and EEA’s separate statements regarding the links between energy and environment (note the new name of the agency) and the importance of embedding concerns about climate change into all of its decisions suggest that EEA has greater hopes for the GHG Policy than as a mere tweak to MEPA.
The view that EEA is seeking to make MEPA a comprehensive environmental statute was made more concrete by EEA’s issuance of the draft policy on “Integrated MEPA/Permitting Review.” The purpose of the Integrated Review Guidance is indeed to fulfill the promise of MEPA as a comprehensive environmental protection statute. Although the Integrated Review Guidance is only draft, and will be utilized solely as a pilot project initially, the intent is clearly to make the MEPA process the true focus of environmental review for new development in Massachusetts, rather than simply as a tool to be utilized by the various permitting agencies, each operating in their own silos. The policy itself states that its purpose is “to make MEPA an integral part of permitting, rather than a separate process that precedes permitting.”
It is too soon to predict the outcome of EEA’s apparent efforts to make MEPA a comprehensive environmental protection statute. First, only time will tell how committed EEA is to the project. Second, EEA remains limited by the jurisdictional authority it has been granted under MEPA. Third, as with NEPA, ultimate permitting decisions are still made by each agency pursuant to the authority granted the agency by the substantive statute requiring a permit. EEA has to date resisted efforts to mandate that agencies under EEA authority issue permits within a certain time period following completion of the review under the Integrated Review Guidance. Those agencies must comply with each statute they implement and good intentions will not justify in court an agency decision to ignore the provisions of one environmental statute in order to achieve a broader environmental benefit.
The real test of EEA’s current efforts will be whether it can find a way to assess cross-media environmental impacts, make a decision regarding whether a project is a net environmental benefit, and have that decision override narrower environmental statutes that would otherwise preclude a win-win outcome. What happens, for example, when the state Clean Water Act appears to require some treatment technology to mitigate an apparently small harm to the environment resulting from a water discharge, at a substantial cost in air emissions or decreased energy efficiency? There are also practical concerns regarding how agency personnel operate. What happens if the state Clean Water Act gives the Department of Environmental Protection sufficient authority to waive the discharge requirement, but the individual DEP employee reviewing the permit, who has worked on NPDES permits for her entire career, sees only the trees and not the forest? Persuading agency employees to pull in the same direction could be as significant an obstacle as negotiating the formal legal hurdles.
Until EEA figures out a way to reach the right environmental result across all media, the promise of a comprehensive environmental protection law will remain illusory. Stay tuned.
Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts SuperLawyers as a leading practitioner in environmental compliance and related litigation. He works on a wide range of environmental law issues, representing clients in the permitting/licensing of new facilities and offering ongoing guidance on permitting and enforcement related matters under federal and state Clean Air Acts, Clean Water Acts, RCRA, and TSCA. He also advises on wetlands and waterways regulation. Seth’s clients include electric and telecommunications utilities, companies in the printing and chemical industries, and education and health care institutions.
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