City of Brockton v. Energy Facilities Siting Bd.

469 Mass. 196

14 N.E.3d 167

CITY OF BROCKTON

v. ENERGY FACILITIES SITING BOARD (No. 1)(and two consolidated cases¹ ).

SJC–11406.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted March 4, 2014.

Decided July 31, 2014.

Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her), Boston, for Frank J. Babbin & others.

John L. Holgerson, New Bedford, for town of West Bridgwater.

Gregor I. McGregor (Nathaniel Stevens with him), Boston, for city of Brockton.

Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board.

David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him), Boston, for Brockton Power Company LLC.

The following submitted briefs for amici curiae:

Veronica Eady for Conservation Law Foundation.

Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. Crosby, & Priya A. Lane for Lawyers' Committee for Civil Rights and Economic Justice.

Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the River Coalition.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.²

Opinion

BOTSFORD, J.

Brockton Power Company LLC (Brockton Power, or company) filed a petition pursuant to G.L. c. 164, § 69J ¼ (§ 69J ¼ ), with the Energy Facilities Siting Board (board) to construct and operate a 350–megawatt combined-cycle energy generating facility (facility) powered by natural gas and ultra-low sulfur distillate (ULSD) on a 13.2–acre lot in the city of Brockton (city). After extensive hearings, the board approved Brockton Power's petition, with conditions. The city, the town of West Bridgewater (town), and a group of residents of the city and the town (residents), all interveners in the proceedings before the board (collectively, interveners), filed appeals in the county court pursuant to G.L. c. 164, § 69P, and G.L. c. 25, § 5.³ A single

justice reserved and reported the case to the full court.⁴

On appeal the interveners argue⁵ that the board (1) failed to adopt and apply the 2002 environmental justice policy that is a binding environmental protection policy of the Commonwealth; (2) improperly relied on the National Ambient Air Quality Standards for fine particulate matter; (3) erroneously accepted Logan Airport weather data as representative of the proposed facility site; (4) erroneously determined that the facility's impact on the town's water supply was accurate and complete; and (5) improperly designated delivery routes to and from the facility. We affirm the decision of the board.⁶

Section 69J ¼ requires the board to conduct an evidentiary hearing⁷ on a petition to construct a generating facility within 180 days of filing, and to approve a petition within one year of filing if it “determines that the petition meets the following requirements: (i) the description of the proposed generating facility and its environmental impacts are substantially accurate and complete; (ii) the description of the site selection process used is accurate; ... (iii) the plans for the construction of the proposed generating facility are consistent with current health and environmental protection policies of the commonwealth and with such energy policies as are adopted by the commonwealth for the specific purpose of guiding the decisions of the board; [and] (iv) such plans minimize the environmental impacts consistent with

the minimization of costs associated with the mitigation, control, and reduction of the environmental impacts of the proposed generating facility.” G.L. c. 164, § 69J ¼, fourth & fifth pars.

Pursuant to G.L. c. 164, § 69P, in reviewing a decision of the board, we are limited to considering

“whether the decision of the board is in conformity with the constitution of the commonwealth and the constitution of the United States, was made in accordance with the procedures established under [G.L. c. 164, §§ 69H to 69O,] and with the rules and regulations of the board with respect to such provisions, was supported by substantial evidence of record in the board's proceedings, and was arbitrary, capricious or an abuse of the board's discretion under the provisions of [§§ 69H to 69O ].”

We give the board's evidentiary rulings great deference, and the interveners, as appellants, bear the burden of showing that the board's decision is invalid. G.L. c. 25, § 5, seventh par. Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd.,

448 Mass. 45, 51, 858 N.E.2d 294 (2006) (Alliance I ).

1. Environmental justice policy. The interveners⁸ argue that the board erred by failing properly to apply the Commonwealth's environmental justice (EJ) policy, as promulgated by the predecessor to the Executive Office of Energy and Environmental Affairs (EOEEA).⁹ The resolution of this issue requires a two-part analysis: whether the EJ policy is among the factors the board must consider under § 69J ¼ (and is therefore subject to our

review); and if so, whether the board correctly applied the policy to Brockton Power's petition.

The EJ policy states: “Environmental justice 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. Environmental justice is the equal protection and meaningful involvement of all people with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies and the equitable distribution of environmental benefits.” The EJ policy defines “[e]qual [p]rotection” to mean “that no group of people, because of race, ethnicity, class, gender, or handicap bears an unfair share of environmental pollution from industrial, commercial, state and municipal operations or have limited access to natural resources, including greenspace (open space) and water resources.”¹⁰ An “[e]nvironmental [j]ustice [p]opulation” is defined as “a neighborhood whose annual median household income is equal to or less than [sixty-five] percent of the statewide median or whose population is made up [of twenty-five] percent [m]inority, [f]oreign [b]orn, or [l]acking [e]nglish [l]anguage [p]roficiency.” Brockton Power's proposed project site was within one-half mile of EJ communities to the west, north, and northeast.

The EJ policy directs agencies within the EOEEA to “develop their own strategies to proactively promote environmental justice in all neighborhoods in ways that are tailored to the specific mission of each agency.... [EOEEA] agencies shall identify and promote agency-sponsored projects, funding decisions, rulemakings or other actions intended to further environmental justice in the Commonwealth.”¹¹ The EJ policy also mandates specific agency action in two areas: enhanced public participation in

EJ communities and, in certain circumstances, enhanced substantive review of new projects in EJ communities when a proposed generating facility exceeds thresholds established by the Massachusetts Environmental Policy Act, G.L. c. 30, §§ 61 –62H (MEPA).¹²

With respect to public participation, the EJ policy mandates that “all [EOEEA] agencies shall have an inclusive, robust public participation program that focuses agency resources on outreach activities that enhance public participation opportunities for agency activities that potentially affect EJ populations.” The policy calls for “enhanced public participation” through “use of alternative media outlets such as community or ethnic newspapers ... and translation of materials or interpretation services at public meetings” in cases where a project exceeds Environmental Notification Form (ENF) thresholds for “air, solid and hazardous waste ... or wastewater and sewage sludge treatment and disposal” as determined by the Secretary of EOEEA (Secretary) under MEPA and its implementing regulations, and the project site is within one mile (or, in the case of air emissions, five miles) from an EJ population.

In addition to these procedural requirements, the EJ policy substantively provides for enhanced analysis and review of “impacts and mitigation” in relation to projects that meet two conditions: (1) the project exceeds “a mandatory EIR [environmental impact report] threshold for air, solid and hazardous waste ..., or wastewater sewage sludge treatment and disposal”; and (2) the project is located within one mile of an EJ population, or within five miles for projects exceeding the EIR threshold for air. “Enhancedanalysis

... may include analysis of multiple air impacts; data on baseline public health conditions within affected EJ [p]opulation; analysis of technological, site planning, and operational alternatives to reduce impacts; and proposed on-site and off-site mitigation measures to reduce multiple impacts and increase environmental benefits to the affected EJ [p]opulation.”

The project at issue here, construction of Brockton Power's facility, was subject to mandatory MEPA review. In conducting that review, the Secretary certified that because the project exceeded the ENF threshold for air and is located within five miles of an EJ community, it was subject to enhanced public participation under the EJ policy. However, the Secretary also certified that the project did not exceed the mandatory EIR threshold for air pollutants, and therefore was not subject to enhanced review under the EJ policy.

The board addressed the EJ policy in its decision, interpreting it to provide for both “enhanced analysis” and additional procedures during a review of a petition filed with the board pursuant to § 69J ¼. The board concluded, however, that the EJ policy's enhanced analysis provisions applied only to § 69J ¼ petitions that propose a generating facility that would exceed the EIR threshold for air emissions. Because the Secretary's MEPA certification had determined that the facility's expected emissions did not exceed this threshold, the board found that the policy, as applied to Brockton Power's petition, was limited to additional procedures, namely, “enhanced outreach and public participation” during...