- After beginning a regulatory review effort in February 2021, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) released an amended Massachusetts Environmental Policy Act (MEPA) regulation proposal for public comment.
- Public comments remain open until 5 p.m. on October 20, 2021.
- This Holland & Knight Alert is the seventh in a series covering Massachusetts initiatives targeting anticipated Commonwealth climate change adaptation needs, focusing on the potential implications for real estate development and permits.
After beginning a regulatory review effort in February 2021, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) released a proposed amended Massachusetts Environmental Policy Act (MEPA) regulation at 301 CMR 11.00.
et seq. (the Rules) for public consultation. A redline of the Regulations and a backgrounder with more details on the MEPA Office’s regulatory review effort are available online. The regulation follows the publication by the MEPA office of its Interim Protocol on Climate Change Adaptation and Resilience (the Interim Protocol), which entered into force on October 1, 2021, designed to encourage development projects to take into account the risks and impacts associated with climate change, as well as its transition Rules for public participation requirements for environmental justice populations (the transition rules), entered into force on June 24, 2021, incorporating new requirements of public participation for MEPA projects. (For more information on the Interim Protocol and transition rules, see the previous alert from Holland & Knight, MEPA Office Issues Revised Protocols on Climate Change and Environmental Justice, July 15, 2021.)
Chapter 8 of the Laws of 2021, a law creating a next-generation roadmap for Massachusetts climate policy (the Climate Act), signed by Governor Charlie Baker on March 26, 2021, places new demands on the MEPA process. . In particular, the climate law includes a new definition of “environmental justice population”, with the aim of increasing the opportunities for meaningful public participation of these populations during the MEPA review process. The law’s definition includes four categories of neighborhoods with certain demographic characteristics based on income level, race, and English proficiency. The climate law includes additional changes to the MEPA process to reflect the principles of environmental justice (EJ), including a requirement that environmental impact reports (EIRs) for projects located near EJ populations include an analysis existing unfair or inequitable environmental burdens and consequences for public health. The climate law also places a strong emphasis on ways to improve public participation, including the translation of key documents, the provision of translation services at meetings, and the requirement to hold public meetings in close proximity to public places. public transport, among other measures.
The proposed amendments to the Regulations are intended to implement these new requirements, as well as to reflect updates to the filing and circulation requirements of the MEPA.
Proposed regulatory changes
In an effort to implement the new climate law requirements, the proposed changes to the regulations require the EEA Secretary to take “environmental justice principles” into account in conducting MEPA reviews of projects. The amendments, which largely follow the provisions of the climate law, Articles 55 to 60, also provide that RIAs submitted to the MEPA office must address public health impacts, in addition to environmental impacts, projects. Some specific changes proposed are as follows:
- New definitions are proposed for addition 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 content of an environmental notification form (ENF), adds a new section 11.05 (4) (d), which provides that new projects filed with the MEPA office must indicate in the ENF determine if the impacts of the project are reasonably likely to negatively affect the JE populations within 1 mile of the project (or within 5 miles of the project if the project involves impacts on air quality) . If such negative impacts are anticipated, the project must provide significant opportunities for public participation by JE populations, including complying with the upcoming MEPA public involvement protocol for JE populations.
- Section 11.06 of the Regulations, which covers the review and decision of the NFE, adds a new section 11.06 (7) (b), which incorporates the new requirement of the Climate Act that all projects “susceptible to cause damage to the environment ”and located within 1 mile of EJ Populations (or 5 miles if it affects air quality) must submit an EIR.
- “No impact on air quality” is defined in the set of amendments made to the Regulations to mean that the project meets or exceeds the examination thresholds found in 301 CMR 11.03 (8) (a) – (b) or generates 150 new average daily trips or more of diesel vehicles running over a period of one year or more.
- Section 11.07, regarding the preparation and filing of RIAs, adds a new section 11.07 (6) (n) requiring that an RIA include an assessment of existing unfair or inequitable environmental burdens and related consequences to public health, as well as the potential of the project to cause “adverse effects” or an increase in the effects of climate change on JE populations. Project proponents should include an analysis of alternatives and measures to avoid or minimize potential impacts on the environment and public health to prevent disproportionate or increasing effects of climate change on JE populations.
Since many of the proposed regulatory changes are made mandatory by the Climate Act, there may be little scope for significant change as a result of the comment period. That said, in particular, there is currently no definition or explanation of what constitutes “related public health impacts” or “data available on public health conditions in the immediate vicinity of the project site and the region. surrounding area ”that must be addressed. Hopefully these concepts will be clarified during the comment period so that the final regulatory changes provide meaningful and objective requirements that do not lead 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 out in the guidelines recommended methodologies and resources, including publicly available mapping tools, for carrying out the assessments described in 301 CMR 11.07 (6) (n) 1.-2., And may identify questions. specific to be analyzed within the scope of the EIR.
Section 11.07 (6) (n) 1.-2 relates to the newly required assessments to determine any existing unfair or inequitable environmental load and the associated public health consequences impacting the JE population. The ability to use guidance rather than regulation subject to the MGL c. 30A regulatory procedures, is a notable addition and is likely due to the limited time that the legislature has provided under Section 102B of the Climate Act, which sets the deadline for publication of proposed regulations (December 16, 2021). Since the regulations apply to all projects filed after December 16, 2021, and the MEPA does not intend to promulgate the required guidelines before that date according to the published schedule, developers will apparently be left to their own devices- even to find out.
Since these regulatory concepts are new and neither the law nor the draft regulation provide complete clarity, the regulated community will have to follow the initial scoping decisions of the MEPA office and its EIR certificates on the first drafts, both published. weeks in the Environmental monitor, to learn more about how these requirements will be interpreted. Stay tuned for more updates on this evolving topic.
Deadline for public hearings and comments
The MEPA office is currently seeking public comments on the proposed rule changes until 5 p.m. on October 20, 2021, and will also hold public hearings via Zoom on October 12 at 10 a.m., as well as twice on October 13, at 1:00 p.m. and again at 6:30 p.m. Written comments can be submitted by email to [email protected]
Holland & Knight’s Massachusetts-based real estate and environmental attorneys will continue to monitor regulatory revisions, as well as other initiatives in response to climate law. For questions about a specific project or for assistance in drafting or submitting comments on the Rules, please contact the authors.
Previous alerts in this series
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.