Section Review

SJC reaffirms limited role of courts in regulating public infrastructure projects

Steven W. Kasten is a partner in the Trial Department of McDermott Will & Emery, LLP. Kasten represented the Massachusetts Port Authority in the Town of Hull case and related litigation concerning Massport's plans to construct a new runway at Logan Airport. However, the views expressed herein are Kasten's, and do not necessarily reflect those of the Massachusetts Port Authority.
Earlier this year, in Town of Hull v. Massachusetts Port Authority, 441 Mass. 508, the Supreme Judicial Court addressed for the first time the provisions of section 62H of the Massachusetts Environmental Policy Act (MEPA), General Laws chapter 30, section 62H, setting forth prerequisites for commencing an action for judicial review of the adequacy of an environmental impact report. Section 62H, in relevant part, limits the time and manner in which such suits may be commenced. It further provides, however, that such limits will not apply if a court determines that the project proponent knowingly concealed material facts or knowingly submitted false information in any report required to be filed in connection with the MEPA review. In Town of Hull, the SJC held that this "concealment exception" cannot apply where the matters allegedly concealed or misrepresented were raised in public comments during the MEPA administrative review process.1 The court also rejected Hull's related common law nuisance claim.

The decision strongly affirms the court's conception of MEPA review as part of a public decision-making process, after which the role of private attorney general lawsuits is, and should be, carefully circumscribed, lest it become a vehicle for endless second-guessing of policy judgments made by the legislative and executive branches of government. The holding ensures that absent genuinely egregious circumstances, development projects subject to MEPA review will not be held hostage to costly pre-trial discovery of matters beyond the MEPA administrative record, and will not be impeded by last-minute lawsuits asserting arguments that could have been raised during MEPA review.

Background

The town of Hull brought suit in October 2001 challenging the Massachusetts Port Authority's proposed construction and operation of a new 5,000-foot runway at Logan Airport, known as "Runway 14/32." Runway 14/32 is to be located along the southwest edge of the Logan airfield, roughly parallel to the only existing major northwest-southeast runway, Runway 15/33. It is to be used only for takeoffs and landings to and from the southeast, over Boston Harbor. Runway 14/32 is being proposed as a means to reduce air traffic delay, especially during moderate to strong northwest winds. Logan's airfield lacks parallel runways to accommodate landings, and suffers capacity shortage, in such conditions.

Residents of Hull naturally would be concerned about the possible noise impacts of Runway 14/32. The Hull peninsula juts toward Boston from the South Shore. Hull's public high school is located at the peninsula's northwestern tip, within a few hundred yards of the extended centerline of Logan Runway 15/33, a 10,000-plus-foot runway that can accommodate jumbo jets. Airplanes landing from over Boston Harbor onto Runway 15/33 pass near the high school on descent into Logan, approximately five miles from the landing threshold, at a typical altitude of approximately 1,500 feet, causing noise disturbance in and around the high school. Planes landing on the proposed Runway 14/32 would also approach Logan from the southeast. In addition, the availability of the new Runway 14/32 might induce air traffic controllers to use Runway 15/33 for landings from the southeast more often than is the case without Runway 14/32. Accordingly, the prospect of operating the new Runway 14/32 presented the possibility of adverse noise impacts in Hull, particularly near the High School.

Runway 14/32 was the subject of public review under MEPA, as well as under the National Environmental Policy Act (NEPA). In the course of that review, Massport prepared draft and final Environmental Impact Reports (EIRs) as required by General Laws chapter 30, section 62C, implementing regulations, and project-specific directives issued by the secretary of the Executive Office of Environmental Affairs.2 Pursuant to MEPA Section 62C, after an EIR is submitted to the secretary of EOEA and noticed in the Environmental Monitor, the public is given a period of time to comment on the report, after which the secretary issues a determination whether, in his or her judgment, the report adequately and properly complies with the MEPA statutes and implementing regulations.

During the public comment period, the town of Hull, together with a number of other South Shore communities, submitted a lengthy report to the secretary of EOEA entitled "Errors and Omissions; Massport's Flawed SDEIS/EIR." This "Errors and Omissions" report presented a detailed critique of the operational, noise, and air quality assessments undertaken in the EIR, and attached reports from noise and air quality experts they had retained. In these public comments, the town asserted that the deficiencies in the EIR included what it characterized as the "knowing concealment of material facts" and "knowing submission of false information." The allegation most relevant to the residents of Hull, for practical purposes, was that Massport had manipulated the model utilized in its noise assessment in a manner that understated the noise impacts of the project near Hull High School, so as to avoid inclusion of the high school and surrounding residential areas in its proposed soundproofing mitigation program.

Notwithstanding these criticisms and others levied by many opponents of a new runway at Logan, the secretary issued a certificate pursuant to Section 62C determining that, in his view, the final EIR adequately and properly complied with the requirements of MEPA Sections 62-62G. Massport then resolved to move forward with the project, and made the necessary findings and commitments regarding environmental impact and mitigation pursuant to MEPA Section 61.

MEPA Section 62H

MEPA Section 62H sets forth a number of requirements for bringing an action alleging that a final EIR fails to comply with the requirements of MEPA Sections 62-62G and implementing regulations.3 First, any person intending to commence such an action must provide written notice of intent to sue, and do so within 60 days from publication in the Environmental Monitor of notice that the EIR is available for review. The notice must identify with particularity the issues to be considered, and must be sent to the attorney general, the project proponent, and the secretary of EOEA. Second, the action must be commenced within 120 days from publication of notice of availability for a public project, or within 30 days from the first issuance of a permit or grant of financial assistance by an agency for a private project. Finally, the allegations made in the case, in addition to being specified in the notice of intent, must have been raised at the appropriate point in the administrative review procedure, unless it was not reasonably possible with due diligence to have raised the issue, or the matter is of critical importance to the environmental impact or the project.

All of these requirements are subject to the following "concealment exception":

If a court determines that an agency or person proposing a project has knowingly concealed material facts or knowingly submitted false information in any form or report required under sections sixty-two to sixty-two H, inclusive, the limits on the manner and time in which the actions or proceedings may be commenced shall not apply and the secretary of environmental affairs may require the preparation and review of such forms or reports as may be necessary to correct any deficient form or report.

The lawsuit

In October 2001, Hull commenced suit alleging that Massport's environmental impact review of the proposed Runway 14/32 was deficient and in violation of MEPA. Hull filed the case, however, only after the 120-day limitation period had expired, and without having served the notice of intent required by Section 62H. As in its public comments, Hull alleged numerous deficiencies in the air quality and noise assessments reported in the EIR, and characterized many of these alleged deficiencies as "knowing concealment" of material fact or submission of "false information." The complaint incorporated by reference and attached as an exhibit the Errors and Omissions Report. The complaint sought a declaration that Massport had knowingly concealed material facts, and an injunction against the construction of Runway 14/32.

Massport moved to dismiss the complaint as untimely, and for lack of notice, pursuant to Section 62H. Massport noted in its motion that the allegations of the complaint were identical to those set forth in the "Errors and Omissions Report." The trial court denied Massport's motion, however, determining that the complaint sufficiently alleged concealment or false information to sustain the action at the pleading stage. An intensive and costly process of document discovery and depositions ensued, after which the court ultimately granted summary judgment in Massport's favor. The court found that Hull's evidence was insufficient to support a finding that Massport knowingly concealed material facts or knowingly submitted false information. In its ruling, the court necessarily focused a great deal of attention on Hull's assertions as to the manner in which it viewed the EIR to be misleading, the admissible evidence Hull could offer in support of its assertions, and the actual content of the EIR. The court ultimately concluded that the critical deficiencies alleged by Hull concerned methodological issues, and that the EIR contained adequate disclosure to definitively negate any claim of fraud or concealment of fact.

The SJC's opinion

The SJC accepted Hull's appeal for direct review and affirmed the judgment. The court, however, held that the trial court's analysis of the specifics of Hull's claims of concealment and misrepresentation, as described above, had been unnecessary. The court held that "where concealment and false submission allegations were raised by the town during the Secretary's review process and thus were already known to the town, the concealment exception to ß 62H, fourth par., cannot be used to extend the time period in which the town may commence an action to challenge the FEIR." Town of Hull, 441 Mass. at 514. Effectively, the SJC held that the town's claims relating to the EIR could have been dismissed earlier in the case, before substantive (and expensive) discovery, on a showing that the allegations of concealment and false information in the EIR had already been raised during the MEPA public comment period.

The court's holdings, moreover, extends to matters raised in the administrative review process by those other than the person who subsequently brings suit. The court concluded, broadly, that "whatever else knowing concealment of a material fact or submission of false information may mean under ß 62H, fourth par., it cannot encompass information and allegations presented to the Secretary during the public comment portion of the MEPA review process." Town of Hull, 441 Mass. at 516. Accordingly, where "an issue has already been raised before the Secretary during the [MEPA] proceedings, any party seeking to challenge the FEIR on that ground must bring a timely challenge." Id. (Emphasis added.)

The court based its holding on several grounds. First, the court noted that Section 62H provides that one result of a judicial finding of "knowing concealment" is that the secretary may order additional analysis in a supplemental EIR to rectify the deficiency in question. In the court's view, it would make little sense to permit a claim to proceed based on alleged "knowing concealment" that was already brought to the attention of the secretary in written public comments on the EIR.

While this reasoning is sound in the context of this case, it would be a mistake to assume that that remand would necessarily be viewed as the exclusive remedy in other contexts. The language of Section 62H need not be read to suggest remand as an exclusive remedy. Rather, Section 62H also provides that the notice, time to sue and other limitations imposed by Section 62H simply will not apply. Thus, in other contexts, the result of a finding of concealment could conceivably be that the plaintiff is permitted to proceed with an otherwise untimely lawsuit, with or without a remand to the secretary to determine whether the concealed or misstated facts are such as to require supplemental environmental analysis and public review.

At the same time, the court was not called on to decide, and its decision leaves open, whether a judicial finding of concealment would permit the reopening of matters that were undoubtedly important to the adequacy of the EIR, but may be unrelated to the concealment. This is an interesting issue of some practical significance in future cases. Arguably, the court's treatment of the remand issue suggests sympathy for an argument that a finding of concealment would only permit the plaintiff to reopen matters within the scope of such concealment.

Second, the court reasoned that it would simply make no sense to permit a plaintiff to extend the time requirements of Section 62H based on alleged concealment or misstatement of fact about which the plaintiff was aware and commented on during the MEPA administrative review process. Third, and perhaps more significantly, the court noted that its holding furthers the express legislative purpose in amending MEPA in the late 1970s to "immediately expedite environmental approvals." St. 1977, c. 947 (Preamble). The same language served as an important basis for the SJC's 1988 decision in Cummings v. Secretary of Envtl Affairs, 402 Mass. 611 (1988), where the court held that the secretary's determination under MEPA not to require the preparation of an EIR is not subject to judicial review, and to a lesser extent in its 2000 decision in Enos v. Secretrary of Envtl. Affiars, 432 Mass. 12 (2000), where the court held that one who suffers an adverse impact by virtue of the construction of a project requiring MEPA approval does not on that basis alone have standing to seek a declaration of right as to the propriety of the secretary's certification that an EIR complies with the requirements of MEPA.

Discussion

The result reached by the SJC in the Town of Hull case was not particularly surprising. The town missed a straightforward statutory deadline for bringing suit, made and pursued allegations already presented in the MEPA administrative review process, and offered no explanation connecting its late filing to any information deficit arising out of an alleged knowing concealment or false submission in that administrative review process. The opinion nevertheless adds significant texture to the court's body of case law regarding the purposes and limits of MEPA litigation.

In a series of cases beginning shortly after MEPA's enactment, the SJC has made clear that it will not hesitate to intervene and enjoin development projects in cases where the proponent fails to follow the MEPA process,4 but that in cases where a public authority is pursuing a project that is exempt from the MEPA EIR administrative review process, or has successfully completed that process, the court will not lightly intervene.5 Most recently, in Sierra Club v. Commissioner of Department of Environmental Management, 439 Mass. 738 (2003), the court held that determinations made by public agencies pursuant to MEPA are subject to a deferential "arbitrary and capricious" standard of review, under which courts ordinarily will defer to the judgments of the Secretary of Environmental Affairs and other responsible public agencies and authorities as to the proper scope and adequacy of environmental review.

The court's opinion in Town of Hull now makes clear that statutory limits on the time and manner for challenging compliance with MEPA Section 62 will be strictly enforced. The court has now expressly countenanced the dismissal of untimely claims as soon as it can be established that a plaintiff's claim of environmental review fraud is based on information that was apparent from the administrative record, including (as in this case) on a motion to dismiss at the outset. This approach will enable defendants to significantly decrease the costs of litigating claims of concealment, thereby reducing the perceived leverage of bringing such a claim.

Finally, and perhaps most importantly, the court implicitly rejected the town's effort to create a cause of action - distinct from the a claim as to the EIR's adequacy - for a judicial declaration that a project proponent knowingly concealed or misrepresented material facts in an EIR. The town, in the opinion of this author, may not have missed the Section 62H statutory deadline accidentally. Rather, given the deferential standard of review in actions challenging the EIR's adequacy, the town may have concluded that it was unlikely to prevail in such an action, and attempted to invoke the statutory "concealment exception" as the basis of an affirmative claim that - because of the assertion of fraud - would make the court less apt to accord deference to judgments made by the secretary and Massport regarding the sufficiency of MEPA review. The court's holding properly precludes such a claim, and secures the holding of Sierra Club against back-door attack.

End notes


1. The court also rejected common law nuisance theories of liability against a public authority based on its alleged failure to mitigate the environmental impacts of Logan. This aspect of the case is beyond the scope of this comment.[back]

2. MEPA prohibits the commencement of projects undertaken by, or requiring permits from, certain public agencies and authorities, until 60 days after the preparation of an EIR. The basic requirement for an EIR is that it "shall contain statements describing the nature and extent of the proposed project and its environmental impact; all measures being utilized to minimize environmental damage; any adverse short-term and long-term environmental consequences which cannot be avoided should the project be undertaken; and reasonable alternatives to the proposed project and their environmental consequences." General Laws chapter 30, section 62C. Implementing regulations, found at 301 CMR 11.07, provide more detailed requirements.[back]

3. Section 62H does not confer jurisdiction in the courts to hear such claims, and does not establish the standing of any person to bring any such claims. The court must have jurisdiction from another source. Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 613 (1988). [back]

4. See Sec'y of Envtl. Affairs v. Massachusetts Port Auth., 366 Mass. 755 (1975). There, the court upheld the issuance of an injunction preventing Massport from constructing a prior runway proposal (in the same part of the Logan airfield as the currently proposed Runway 14/32) until such time as it filed an EIR and otherwise complied with MEPA. In that case, Massport proceeded with the project based on its own findings, in conflict with those of the Secretary of Environmental Affairs, that the Runway did not involve a substantial risk of adverse environmental impacts so that no EIR was required; and that the project was otherwise not subject to MEPA review. In that circumstance, the court accorded no special deference to Massport's judgments, rejected its findings, and therefore enjoined the project pending MEPA compliance.[back]

5. See Boston v. Massachusetts Port Auth., 364 Mass. 639 (1974) (holding that determination by Massport that it had complied with MEPA Section 61 was not subject to judicial review, on project that predated the requirements of MEPA Section 62); Cummings v. Sec'y of Envtl. Affairs, 402 Mass. 611 (1988) (holding that the secretary's determination not to require and EIR on a project is not subject to judicial review); and Enos v. Sec'y of Envtl. Affairs, 432 Mass. 12 (2000) (owners of property affected by proposed placement of sewage treatment plant held to lack standing to bring declaratory judgment action challenging secretary's determination as to adequacy of EIR).[back]

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