City of Boston v. Massachusetts Port Authority

• Decision Date: 27 February 1974
• Citation: 364 Mass. 639,308 N.E.2d 488
• Parties: , 6 ERC 1337, 4 Envtl. L. Rep. 20,314 CITY OF BOSTON v. MASSACHUSETTS PORT AUTHORITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 488

308 N.E.2d 488

364 Mass. 639, 6 ERC 1337, 4 Envtl.

L. Rep. 20,314

CITY OF BOSTON v. MASSACHUSETTS PORT AUTHORITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 6, 1973.

Decided Feb. 27, 1974.

Herbert P. Gleason, Corp. Counsel, Boston (Peter Koff, Asst. Corp. Counsel, Boston, with him), for the City of Boston.

David C. Hawkins (John M. Reed, Boston with him), for Vappi & Co., Inc.

Joseph L. Cotter, Boston, for South Terminal Corp. and others.

John M. Harrington, Jr., Boston, (John Silas Hopkins, III, Boston, and Robert P. Nash, Chicago, Ill., with him), for Massachusetts Port Authority and others.

Thomas B. Arnold, Boston, for The Sierra Club and Harley F. Laing, Special Asst. Atty. Gen., for the Executive Office for Environmental Affairs, Submitted briefs as amici curiae.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The city of Boston filed a bill in equity in the Superior Court pursuant to G.L. c. 231A and c. 214, § 10A, ¹ to enjoin the construction by the defendant Massachusetts Port Authority (Authority) of a major new passenger terminal and automobile parking garage at the General Edward Lawrence Logan International Airport (Logan Airport). The plaintiff requested, in addition to injunctive relief, a declaration that the Authority, ² in planning for, approving, and contracting for the construction of the terminal and garage, had failed to comply with certain air pollution control regulations adopted by the Department of Public Health (Department) pursuant to G.L. c. 111. §§ 142A--142E, ³ and also with certain requirements of G.L. c. 30, § 61. ⁴ The defendants filed answers to the bill, and, after a partial trial, the judge of the Superior Court entered findings, rulings, and an order for a decree. Thereafter, he entered a final decree in which he declared that the Department's regulations are inapplicable to the Authority, that the Authority had complied with G.L. c. 30, § 61, and that because there was no violation of § 61, there was no basis under G.L. c. 214, § 10A, for further review of the action taken by the Authority under § 61. Having thus declared the 'rights, duties and status' of the parties, the judge dismissed the bill. This appeal presents for our decision the correctness of the judge's rulings of law and the propriety of his decree dismissing the bill. We hold that the ruling that the Authority has not violated G.L. c. 30, § 61, was correct, but that the conclusion that the Department's regulations do not apply to the Authority for the reasons stated was incorrect. The decree dismissing the bill must, therefore, be vacated and the case remanded to the Superior Court for further proceedings (see fn. 15, infra).

The factual context in which this controversy arose may be briefly summarized. The Authority was created by the Legislature in 1956 as a 'public instrumentality,' one of its functions being to own and operate Logan Airport. St.1956, c. 465. On April 12, 1973, at a special meeting, a majority of the members of the Authority voted to authorize the execution of a contract for the construction of the so called South Terminal at Logan Airport. The plans for such a terminal included a provision for a five-story automobile parking garage with 2,700 parking spaces. On the same day, April 12, the State Commissioner of Public Health (Commissioner) notified the Authority's executive director by letter that the Department considered the construction of the South Terminal parking garage to be within the scope of certain air pollution control regulations adopted by the Department pursuant to G.L. c. 111, § 142D. Those regulations, inter alia, prohibit the construction of any 'facility' which may contribute to a condition of air pollution until the plans and specifications for such facility are reviewed and approved by the Department. The Commissioner therefore requested that the plans and specifications for the garage be submitted to the Department. In a separate letter of the same date to the chairman of the Authority, the Commissioner urged the Authority not to execute a contract for construction of the garage until the Authority and the Department could resolve the 'very serious questions' concerning the application of the regulations.

On April 13 the city of Boston commenced this suit in the Superior Court. On April 19 or 20 the Commissioner requested from the Attorney General his opinion 'as to the applicability of . . . (the Department's) regulations to the Massachusetts Port Authority.' (In the letter stating this request the Commissioner mentioned that the city had requested that the Department join in the city's suit against the Authority.) In a letter dated April 21, supplemented by another dated April 24, ⁵ the Attorney General stated as his opinion that the Authority, by virtue of § 2 of its enabling act, ⁶ is exempt from the Department's air pollution control regulations. In a letter dated April 24, ⁷ the Commissioner informed the executive director of the Authority that, in light of the Attorney General's ruling, the Department could not enforce its air pollution control regulations against the Authority. The Commissioner expressly reserved his right to reverse that decision in the event that the Superior Court, in the suit brought by the city, ruled that the Authority is in fact not exempt from such regulations.

On April 25 the Authority and Vappi & Company, Inc., executed the contract for construction of the South Terminal, and, on or about April 30, construction work began and has since continued. On May 2 the judge entered his findings, rulings, and order for decree. A final decree was entered on May 7 dismissing the bill.

The plaintiff's bill comprises two principal claims which we shall deal with separately. The first claim concerns the Authority's failure to obtain prior approval of its plans for the South Terminal garage from the Department in accordance with the allegedly applicable air pollution control regulations. The second claim concerns the alleged failure of the Authority fully to comply with the requirements of G.L. c. 30, § 61. Before reaching these issues, however, we must first consider the challenge raised by the defendants to the plaintiff's standing to maintain this action under G.L. c. 214, § 10A.

A. Jurisdiction under § 10A.

The question of the plaintiff's standing was neither raised by the defendants' pleadings nor argued during the proceedings in the Superior Court. We would, therefore, ordinarily decline to consider it at this juncture. Lyon v. Bloomfield, 355 Mass. 738, 743, 247 N.E.2d 555 (1969). However, the gravamen of the defendants' argument before this court raises not an issue of standing but rather an issue of jurisdiction. The defendants argue that the bill is insufficient under the term of § 10A in that there is no allegation that the environmental damage which allegedly is 'about to occur' because of the construction of the parking garage 'constitutes a violation of a statute, ordinance, by-law or regulation.' The only allegation of any 'violation' concerns the Authority's failure to submit its garage plans for the Department's approval and its failure to comply with § 61 of c. 30. These are not the type of violations to which the statute speaks. Therefore, say the defendants, the plaintiff has no standing to maintain this suit under § 10A. But clearly this argument does not go to the plaintiff's standing, which is expressly established by the statute ('upon the petition of any political subdivision of the commonwealth'). Instead, it raises the question whether the plaintiff's allegations are sufficient to invoke the jurisdiction of the Superior Court under the terms of § 10A. ⁸

The jurisdictional issue implicit in the defendants' argument must be decided, regardless of the point at which it is first raised. Witzgall v. Witzgall, 334 Mass. 365, 368, 136 N.E.2d 219 (1956). In order to invoke the jurisdiction of the Superior Court under G.L. c. 214, § 10A, there must be an allegation that 'damage to the environment is occurring or is about to occur,' and it must further be alleged that such damage 'constitutes a violation of a statute . . . or regulation the major purpose of which is to prevent or minimize damage to the environment.' The bill in the present case is adequate in all respects but one: it is not the damage to the environment (i.e., increased air pollution) which is alleged to constitute the violation of the statute or regulation. Rather, the violations alleged are merely procedural failures, i.e., failure to obtain prior approval of the garage plans and inadequate compliance with § 61. Thus, whereas the scheme of § 10A appears to contemplate that the court is to determine whether damage to the environment is in fact occurring or about to occur, whether such damage constitutes a 'violation,' and whether it should therefore be enjoined, the present bill would have the court decide merely procedural questions having no immediate bearing on any actual damage to the environment. The remedy provided in § 10A is clearly available to enforce the substantive prohibitions of environmental statutes and regulations; we must now decide whether it is also available to enforce the procedural requirements of those same statutes and regulations.

We hold that the present bill is sufficient to invoke the jurisdiction of the Superior Court under § 10A. The legislative intent underlying that provision is broadly stated in the title under which it was enacted: 'An Act establishing a cause of action in behalf of certain persons and political subdivisions for the purpose of protecting the natural resources and environment of the commonwealth.' St.1971, c. 732. In submitting proposed legislation permitting environmental suits to be brought by citizens, the Governor indicated that his intention was to permit 'the citizen to join in the enforcement of the...