Proposed MEPA Regulations Leave Key Substantive Questions Unanswered

After commencing a regulatory review effort in February 2021, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) has issued proposed amended Massachusetts Environmental Policy Act (MEPA) regulations at 301 C.M.R. 11.00 et seq. (the Regulations) for public comment. A redline of the Regulations and a background document with further details on the MEPA Office's regulatory review effort are available online. The Regulations follow the MEPA Office's issuance of its Interim Protocol on Climate Change Adaptation and Resiliency (the Interim Protocol), effective Oct. 1, 2021, designed to encourage development projects to consider risks and impacts associated with climate change, as well as its Transition Rules for Public Involvement Requirements for Environmental Justice Populations (the Transition Rules), effective June 24, 2021, incorporating new public involvement requirements for MEPA projects. (For further information on the Interim Protocol and the Transition Rules, see Holland & Knight's previous alert, MEPA Office Issues Revised Protocols on Climate Change and Environmental Justice, July 15, 2021.)

Background

Chapter 8 of the Acts of 2021, An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy (the Climate Act), signed by Gov. Charlie Baker on March 26, 2021, imposes new requirements on the MEPA process. In particular, the Climate Act includes a new definition of "Environmental Justice Population," with the goal of increasing opportunities for the meaningful public involvement of such populations during the MEPA review process. The statute's definition includes four categories of neighborhoods with certain demographic characteristics based on income level, race and English language proficiency. The Climate Act includes additional changes to the MEPA process to reflect Environmental Justice (EJ) principles, including a requirement that Environmental Impact Reports (EIRs) for projects located near EJ Populations include an analysis of existing unfair or inequitable environmental burdens and public health consequences. The Climate Act also heavily emphasizes ways to improve public participation, including translating key documents, providing translation services at meetings and requiring public meetings to be held near public transit, among other measures.

The proposed amendments to the Regulations seek to implement these new requirements, as well as reflect updates to MEPA filing and circulation requirements.

Proposed Regulatory Changes

In an effort to implement the new requirements of the Climate Act, the proposed amendments to the Regulations require the EEA Secretary to consider "Environmental Justice Principles" in conducting MEPA reviews of projects. The amendments, which largely track the Climate Act provisions, Sections 55 through 60, also provide that EIRs submitted to the MEPA Office must address the public health impacts, in addition to the environmental impacts, of projects. Some specific proposed changes are as follows:

• New definitions are proposed to be added to the Regulations, including definitions of "Environmental Benefits," "Environmental Burden," "Environmental Justice Population," "Environmental Principles" and "Neighborhood."
• Section 11.05 of the Regulations, which covers the required contents of an Environmental Notification Form (ENF), adds a new subsection 11.05(4)(d), which provides that new projects filing with the MEPA Office will be required to state in the ENF form whether project impacts are reasonably likely to negatively affect EJ Populations within 1 mile of the project (or within 5 miles of the project if the project will involve air quality impacts). If such negative impacts are anticipated, the project must provide meaningful opportunities for public involvement by EJ Populations, including by complying with the forthcoming MEPA Public Involvement Protocol for EJ Populations.
• Section 11.06 of the Regulations, which covers ENF review and decision, adds a new subsection 11.06(7)(b), which incorporates the new requirement from the Climate Act that all projects "likely to cause damage to the environment" and located within 1 mile of EJ Populations (or 5 miles if affecting air quality) must submit an EIR.
• "Impacting air quality" is defined throughout the amendments to the Regulations to mean that the project meets or exceeds the review thresholds found at 301 CMR 11.03(8)(a)-(b) or generates 150 or more new average daily trips of diesel vehicle traffic in a duration of one year or more.
• Section 11.07, regarding EIR preparation and filing, adds a new subsection 11.07(6)(n) requiring that an EIR include an assessment of existing unfair or inequitable environmental burdens and related public health consequences, as well as the project's potential to cause "disproportionate adverse effects" or an increase in the effects of climate change on EJ Populations. Project proponents will be required to include an analysis of alternatives and measures to avoid or minimize potential environmental and public health impacts so as to prevent disproportionate effects or increases in the effects of climate change on EJ Populations.

Given that many of the proposed regulatory changes are mandated by the Climate Act, there may be little opportunity for meaningful change as a result of the comment period. That said, notably, there presently is no definition or explanation of what constitutes "related public health impacts" or what "available data on the public health conditions in the immediate vicinity of the Project site and the surrounding region" is required to be addressed. Hopefully, these concepts will be clarified during the comment period so that the final regulatory amendments will provide meaningful, objective requirements that do not give rise to endless disputes and litigation.

One of the most important draft regulatory statements is found in new subsection 11.07(6)(n), which provides:

The Secretary shall set forth in guidance recommended methodologies and resources, including publicly available mapping tools, to conduct the assessments described in 301 CMR 11.07(6)(n)1.-2., and may identify specific issues for analysis in the Scope for the EIR.

Section 11.07(6)(n)1.-2 relates to the newly required assessments to determine any existing unfair or inequitable Environmental Burden and related public health consequences impacting the EJ Population. The ability to use guidance, rather than regulation subject to MGL c. 30A rulemaking procedures, is a notable addition and presumably is due to the limited time that the legislature provided under Section 102B of the Climate Act, which sets the deadline for publication of the proposed regulations (Dec. 16, 2021). Given that the regulations apply to all projects filed after Dec. 16, 2021, and MEPA does not intend to promulgate the required guidance before then according to the published timeline, developers seemingly will be left to figure this out themselves.

Since these regulatory concepts are new, and since neither the statute nor the draft regulations provide complete clarity, the regulated community will need to follow the initial MEPA Office scoping decisions and its EIR certificates on early projects, published biweekly in the Environmental Monitor, to learn more about how these requirements will be interpreted. Stay tuned for further updates on this evolving subject.

Public Hearings and Comment Deadline

The MEPA Office is currently seeking public comment on the proposed amendments to the Regulations until 5 p.m. on Oct. 20, 2021, and will also hold public hearings via Zoom on Oct. 12 at 10 a.m., as well as twice on Oct. 13, at 1 p.m. and again at 6:30 p.m. Written comments may be submitted by e-mail at MEPA-regs@mass.gov.

Holland & Knight's Massachusetts-based real estate and environmental attorneys will continue to follow the revisions to the Regulations, as well as other initiatives in response to the Climate Act. For questions about a specific project or for assistance with drafting or submitting comments on the Regulations, please contact the authors.

Previous Alerts in This Series

• Introduction: Massachusetts Climate Change Adaptation Initiatives: What Real Estate Professionals Should Know
• Part 2: MEPA Office Issues Draft Interim Protocol on Climate Adaptation and Resiliency
• Part 3: Massachusetts Communities Think Globally, Act Locally on Climate Change
• Part 4: MEPA Office Issues Revised Protocols on Climate Change and Environmental Justice
• Part 5: Massachusetts Municipalities Pursue Building Code Revisions While Awaiting State's Next Steps
• Part 6: Massachusetts Department of Energy Resources Seeks Comment on Appliance Efficiency Standards

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