Cummings v. Secretary of Environmental Affairs

524 N.E.2d 836, 402 Mass. 611

• Court: Massachusetts Supreme Judicial Court
• Decided: June 20, 1988
• Status: Published

Opinions

O’Connor, J.

The plaintiffs, ten citizens of the Commonwealth, allege in their complaint that the defendant Secretary violated the Massachusetts Environmental Policy Act (MEPA), G. L. c. 30, §§ 61-62H, in determining that no environmental impact report (EIR) was required for a mixed use commercial development project proposed by the defendant, Gloucester Landing Associates, to be located on property owned by the defendant, Gloucester Redevelopment Authority. The complaint was dismissed in the Superior Court, and the plaintiffs appealed to the Appeals Court. We transferred the case to this court on our own motion, and we now affirm the Superior Court judgment.

General Laws c. 30, § 62H (1986 ed.), provides in part: “An agency or person intending to commence an action or proceeding alleging an improper determination of whether a project requires the preparation of an environmental impact report under section sixty-two A, shall first provide notice of intention to commence such action or proceeding within sixty days of issuance of notice of such determination.” It is undisputed that the plaintiffs provided notice of their intention to commence this action more than sixty days after the secretary issued the developer a certificate stating that no EIR was required. However, it also is undisputed that the plaintiffs provided that notice less than sixty days after the Secretary had published notice of his determination in the Environmental Monitor, a bimonthly publication of the Secretary’s office. The only question argued in the Superior Court, and initially argued here, was whether the sixty-day notice period commenced with the issuance of the certificate, in which case the notice would have been too late, or commenced later when the notice was published in the Environmental Monitor. In the latter case, the notice would have been timely. The motion judge agreed with the developer’s contention that the limitations period commenced with the Secretary’s issuance of a certificate of his determination. Therefore, he allowed the developer’s motion to dismiss.

On appeal, this court was unwilling to assume, as the parties had, that, if the notice requirements of c. 30, § 62H, are met, members of the public have a right to judicial review of the Secretary’s determination that no EIR is necessary. Accordingly, we ordered further briefs to assist us in resolving that critical question. The question is jurisdictional. Does the Superior Court have subject matter jurisdiction of an action brought by ten or more citizens challenging a determination by the Secretary that no EIR is_necessary? Boston v. Massachusetts Port Auth., 364 Mass. 639, 644-645 (1974). Of course, in the absence of such jurisdictioru-further inquiry in this case with respect to the notice provisions-of G. L. c. 30, § 62H, would be inappropriate.

We phrased the issues for supplemental.briefing-as. follows: “1. Does the Superior Court have subject matter jurisdiction of an action by ten citizens challenging the Secretary’s determination that no Environmental Impact Report (EIR) is required? Is such a determination renewable by the Superior Court? 2. Does the sixty day period for filing a notice of intention to commence suit (NOI) apply to challenges to the Secretary’s determination that an ETR_is not required?” Our questions invited the parties to discuss whether the Superior Court had jurisdiction either on the basis of G. L. c. 214, § 7A (1986 ed.), which provides for actions by ten persons domiciled within the Commonwealth in certain circumstances, or on any other basis. In their supplemental brief, the plaintiffs ’ argument in support of jurisdiction focuses entirely on G. L. c. 214, § 7A, G. L. c. 30, § 62H, regulations promulgated by the Secretary, and the Commonwealth’s environmental policy.

Neither G. L. c. 30, § 62H, nor the Secretary’s regulations confer jurisdiction on the Superior Court. Section 62H does not purport to grant jurisdiction. It simply provides, with respect to actions over which a court has jurisdiction from another source, that such actions must be commenced within a certain period following specified events. It is essentially a statute of limitations. Furthermore, although it is clear from regulations promulgated by the Secretary, as well as from the Secretary’s position in this appeal, that he believes that his determinations that no EIR is required are subject to judicial review, the Secretary cannot confer jurisdiction on the courts by regulation, and his opinion with respect to the existence of jurisdiction is neither controlling nor entitled to special weight. The Secretary’s expertise with respect to environmental matters does not extend to the question whether, under Massachusetts law, his determinations are subject to judicial review. The question of jurisdiction in this case must be resolved by this court’s construction of G. L. c. 214, § 7A, as inserted by St. 1974, c. 1114, § 62. See Babson v. Boston Rent Control Adm’r, 371 Mass. 404, 405 (1976); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984); Edwards v. Califano, 619 F.2d 865, 869 (10th Cir. 1980).

General Laws c. 214, § 7A, provides in relevant part as follows: “The superior court for the county in .which damage to the environment is occurring or is about to. occur may, upon a civil action in which equitable or declaratory relief is sought in which not less than ten persons domiciled within the commonwealth are joined as plaintiffs . . . determine whether such damage is occurring or is about to occur and may, before the final determination of the action, restrain the person causing or about to cause such damage; provided, however, that the damage caused or about to be caused by such person constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment.”

In Boston v. Massachusetts Port Auth., 364 Mass. 639 (1974), a case heavily relied on by the plaintiffs and the Secretary, this court construed G. L. c. 214, § 10A (repealed), the predecessor of c. 214, § 7A, and like it in all material respects. The only violations alleged were that the. Authority failed to comply with certain procedural .steps required by statute and regulation. Nevertheless, this court held that “a petition under § 10A will lie to enforce the procedural as well as the prohibitory provisions of the Department’s [of Public Health] regulations.” Id. at 646-647. We reasoned that the purpose of MEPA was to protect the environment, and that, therefore, an allegation of a violation of MEPA or a regulation pursuant to MEPA qualified under § 10A as a claim that “damage to the environment is occurring or is about to occur.” We continue to subscribe to that principle. Therefore, if the plaintiffs in this case were alleging, as did the plaintiff in Boston v. Massachusetts Port Auth., supra, that a developer or agency proposing a project failed to comply with the procedural requirement of a statute or regulation designed to protect the environment, the Superior Court would have subject matter jurisdiction under G. L. c. 214, § 7A.

The plaintiffs here, however, do not allege that the developer or agency proposing a project has failed to comply with MEPA or a regulation promulgated pursuant to MEPA. Indeed, the plaintiffs do claim a violation of MEPA, but they identify that violation as the failure of the Secretary to require an EIR. The claim on appeal is that the Secretary, who is the public official charged with administering the Commonwealth’s environmental protection scheme, see G. L. c. 21A, and who, under G. L. c. 30, § 62A, determines whether an EIR is required, may be guilty of a violation of MEPA by determining that no EIR is necessary. That is a quite different contention from a contention that a proponent of a project has failed to comply with applicable regulations or statutory directives.

The contention here is also unlike the contention made by the plaintiff in Secretary of Envtl. Affairs v. Massachusetts Port Auth., 366 Mass. 755 (1975). In that case, this court agreed with the plaintiff that the defendant’s failure to file an EIR violated G. L. c. 30, § 62. But, at that time, c. 3CL § 62, required an authority, such as the defendant-in that case, to file an EIR when its proposed project “may cause damage to the environment.” See G. L. c. 30, § 62, as amended by St. 1974, c. 257, § 1. No “violation” by the Secretary was alleged. Boston v. Massachusetts Port Auth., supra, and Secretary of Envtl. Affairs v. Massachusetts Port Auth., supra, are inapposite to the present controversy.

The Legislature substantially revised MEPA in 1977. See St. 1977, c. 947. In that act, after declaring its purpose to be “to immediately expedite environmental approvals and rules and regulations thereof under the laws regulating environmental policy in the commonwealth,” the Legislature inserted into G. L. c. 30 a new § 62A (the current § 62A), which provides in part that the Secretary “shall issue a certificate stating whether an environmental impact report is required.” As a result of St. 1977, c. 947, a proponent of a project violates the law by failing to file an EIR only if the Secretary determines that one is required. As we have noted, no claim is made here that the proponent violated the law.

Neither the Secretary nor the plaintiffs point to any specific provision in MEPA or in any other statute as being susceptible of violation by the Secretary’s incorrect, or even arbitrary, determination that an EIR is not required. There is no such provision, and it would be an unwarranted stretch of statutory language, far in excess of the broad construction adopted by the court in Boston v. Massachusetts Port Auth., supra, for this court to conclude that the Secretary’s determination that no EIR is required may qualify as “damage caused or about to be caused” in “violation” of an environmental statute. Furthermore, the provision in G. L. c. 214, § 7A, that the Superior Court may “before the final determination of the action, restrain the person causing or about to cause such damage,” suggests in the c. 30 context that the Legislature contemplated only the agency or authority or private person proposing a project, and not the public official who administers the statutory scheme, as “the person causing or about to cause” environmental damage. See Warren v. Hazardous Waste Facility Site Safety Council, 392 Mass. 107, 118 (1984) (“It is clear that the Legislature did not intend by G. L. c. 214, § 7A, to authorize injunctive relief against an agency of the Commonwealth that was created by the Legislature to monitor and implement the process for siting hazardous waste facilities”); Aertsen v. Landrieu, 488 F. Supp. 314, 323 (D. Mass.), aff’d on other grounds, 637 F.2d 12 (1st Cir. 1980).

The plaintiffs, supported by the Secretary, argue that “[i]n addition to the plain language of the statute and legislative intent thereof, sound environmental policy dictates that a Secretary’s improper determination not to require the preparation of an EIR be actionable. Any other result would thwart MEPA in attaining thorough environmental review prior to a project’s implementation and minimizing environmental damage.” Of course, the principal source for discovery of legislative intent is the language of the statute. Furthermore, contrary to the plaintiffs’ contention, sound environmental policy does not necessarily require the availability of judicial review of the Secretary’s determination that no EIR is required. Sound environmental policy does not even permit, much less require, environmental protection to the exclusion of all other legitimate State concerns. A policy that places final determination as to the necessity of an EIR in the hands of a disinterested public official with expertise in environmental matters, shared by his or her staff but not ordinarily shared by judges, cannot be characterized as unsound. This is particularly trac in light of the potential unfairness and social and economic loss that may result from the delay inherent in litigation. Substantial delay due to litigation is inevitable regardless of the standard of judicial review that may be applied. The declared purpose of the Legislature in enacting St. 1977, c. 947, “to immediately expedite environmental approvals . . . under the laws regulating environmental policy in the commonwealth” affirms the undesirability of delay. It may have been jsound policy for the Legislature to authorize judicial review of determinations that no EIR would be required when those determinations were made by interested, and perhaps inexpert, parties, despite the ensuing delay, as was the situation before the enactment of St. 1977, c. 947. However, it cannot reasonably be said that the failure to make judicial review available when those determinations are made by the Secretary is unsound.

It is true, as the plaintiffs argue, that in Boston Preservation Alliance, Inc. v. Secretary of Envtl. Affairs, 396 Mass. 489 (1986), this court considered the merits on appeal of a challenge in the Superior Court to the limitation the Secretary had placed on the scope of a required EIR. The plaintiffs argue that it would make no sense for the Superior Court to have subject matter jurisdiction over a challenge to the Secretary’s determination concerning the required scope of an EIR, but not to have jurisdiction over a challenge to his determination that no EIR whatsoever is necessary. There is logic in the plaintiffs’ contention, but the contention incorrectly assumes that the jurisdictional argument was raised in the Boston Preservation Alliance, Inc. case. The court in that case did not hold that a ten-domiciliary action to challenge the adequacy of the scope of an EIR is within the jurisdiction of the Superior Court. There is no suggestion in the court’s opinion that the court addressed that issue. We address it in this case for the first time.

In her dissenting opinion, post at 621-622, Justice Abrams identifies certain language in G. L. c. 30, § 62H, which makes little sense if the Secretary’s determination that no EIR is necessary is unreviewable in court. Even so, and if we grant the validity of that observation, it does not follow that judicial review is available. Such review is not available unless authorized by statute, and no statute authorizes it. Chapter 30, § 62H, clearly does not itself purport to create such jurisdiction. At most, it may reasonably be said that § 62H contains language which implies a legislative assumption that judicial review is available from another source. However, such an assumption is not the equivalent of a jurisdictional grant.

Moreover, it is far from clear that, in enacting § 62H, the Legislature did assume that the Secretary’s decisions not to require an EIR are reviewable. Although § 62H contains some language suggesting such an assumption, other language suggests the opposite. For instance, the second paragraph, dealing with time limitations for the commencement of actions, provides: “Any action or proceeding alleging an improper determination that a project requires the preparation of an environmental impact report” (emphasis added) shall commence within specified periods. There is no additional language specifying time limits for actions alleging an improper determination that an FIR is not required. Furthermore, although c. 30, § 62C, expressly requires the Secretary to give public notice of filings and reports, there is no provision in c. 30 expressly requiring public notice of a determination that no EIR is required. One might reasonably expect that public notice of such a determination would be expressly required if the-public wereJhought by the Legislature to have a right to judicial.revi esLof-Sueh a decision if exercised in timely fashion.

On the basis of the foregoing reasoning, we conclude that the correct judgment was entered in the Superior Court. It is unnecessary for us to consider, therefore, whether the plaintiffs’ action, focused on a proposed project in Gloucester, County of Essex, but commenced in Suffolk County, must fail because of the provision in G. L. c. 214, § 7A, that “[t]he superior court for the county in which damage to the environment is occurring or is about to occur may [take specified action].” We need not decide whether that requirement is one of jurisdiction or merely of venue.

Judgment affirmed.