Commonwealth v. Beaulieu

• Decision Date: 18 March 2011
• Docket Number: No. 09–P–1565.,09–P–1565.
• Citation: 944 N.E.2d 1027,459 Mass. 319
• Parties: COMMONWEALTHv.Russell J. BEAULIEU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 319

944 N.E.2d 1027

COMMONWEALTH

v.Russell J. BEAULIEU.

Supreme Judicial Court of Massachusetts.

OPINION TEXT STARTS HERESuffolk.

ENTERGY NUCLEAR GENERATION COMPANYv.DEPARTMENT OF ENVIRONMENTAL PROTECTION.

No. SJC–10732.

Submitted Feb. 7, 2011.Decided April 11, 2011.

I. Andrew Goldberg, Assistant Attorney General, for the defendant.U. Gwyn Williams, Boston, for the plaintiff.John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation, amicus curiae, submitted a brief.Present: IRELAND, C.J., SPINA, COWIN, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.¹COWIN, J.

This case requires us to consider the scope of the regulatory powers conferred on the Department of Environmental Protection (department) by the Clean Waters Act, G.L. c. 21, §§ 26–53 (State Act). Pursuant to the State Act, the department promulgated regulations (CWIS regulations) implementing its authority to regulate components of industrial facilities that withdraw water from surface waterbodies. See part 1, infra. Those components are known as cooling water intake structures (CWISs). The plaintiff, Entergy Nuclear Generation Company (Entergy), obtained a judgment from the Superior Court declaring that the CWIS regulations are ultra vires. Because we conclude that the State Act confers on the department authority to protect the water resources of the Commonwealth, and that that authority is broad enough to encompass the regulation of CWISs, we reverse.²

1. Background and prior proceedings. In 2006, the department promulgated amendments to the surface water quality standards, 314 Code Mass. Regs. § 4.00 (2006).³ Included in the 2006 amendments were the CWIS regulations, which declare that the department had the authority to regulate CWISs in order to ensure that their operation will not lead to a violation of water quality standards. See 314 Code Mass. Regs. §§ 4.05(3)(b)(2)(d), 4.05(3)(c)(2)(d), 4.05(4)(a)(2)(d), 4.05(4)(b)(2)(d), 4.05(4)(c)(2)(d) (2006).⁴ Prior to the 2006 amendments, the water quality standards did not refer explicitly to CWISs.

A CWIS is a structure employed at an industrial facility to cool heat-generating equipment. It takes in large quantities of water through screened intake channels from a nearby water source.⁵ In a typical “once-through” cooling system, the water is taken in through a CWIS, cycled through the facility, and then discharged, at a higher temperature, through a separate system of outflow pipes. The heated water that emerges from the outflow pipes is treated as a pollutant, and its discharge is regulated under both State and Federal law. See 33 U.S.C. § 1362(6) (2006) (defining “heat” as pollutant); G.L. c. 21, § 26A (defining “heated effluent” as pollutant). The CWIS itself does not discharge anything; its only function is water intake.

In 1999, Entergy purchased Pilgrim Nuclear Power Station (Pilgrim) in Plymouth. Pilgrim has a CWIS that draws water from Cape Cod Bay; the facility's separate outflow pipes return heated water to the bay. Cape Cod Bay is a Class SA body of water, designated as an “excellent habitat for fish [and] other aquatic life.” 314 Code Mass. Regs. § 4.05(4)(a) (2006). Because Pilgrim's outflow pipes discharge both heated water and other pollutants into the bay, since 1975 the facility has held a discharge permit (joint permit) issued jointly by the United States Environmental Protection Agency (EPA) and the department pursuant to Federal and State law as described in part 2, infra.⁶ Although the Pilgrim permit has been renewed and modified several times,⁷ it has not been altered since the promulgation of the CWIS regulations, and Entergy has not indicated an intent to make any changes to the facility that would implicate the permitting process.

The issue in this case is not discharges but rather the unique set of environmental harms caused by the intake of water at a CWIS. As the judge in the Superior Court noted, the underwater suction created by a CWIS can cause injury or death to fish, shellfish, and other aquatic organisms. ⁸ Larger organisms may become trapped against the screens covering the intake pipes (“impingement”), while smaller organisms may be pulled into the cooling system itself (“entrainment”). As a result, CWISs pose a threat to aquatic species and ecosystems. See Riverkeeper, Inc. v. United States Envtl. Protection Agency, 358 F.3d 174, 181, 182 n. 5 (2d Cir.2004). See also Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 129 S.Ct. 1498, 1502, 173 L.Ed.2d 369 (2009); 66 Fed.Reg. 65,256, 65,262–65,265 (2001) (describing environmental effects of CWISs).

The amendments to the water quality standards, including the CWIS regulations, were promulgated in their final form in December, 2006. One month later, Entergy filed suit in the Superior Court pursuant to G.L. c. 30A, § 7, and the declaratory judgment act, G.L. c. 231A.⁹ Entergy sought a judgment declaring that the CWIS regulations exceeded the department's authority under the State Act and were invalid. After a hearing on cross-motions for summary judgment, the judge granted Entergy's motion and entered a judgment declaring that the CWIS regulations, as applied to the CWIS at Pilgrim, were ultra vires and beyond the department's authority to adopt. The department sought review in the Appeals Court, and we transferred the case here on our own motion.

2. Statutory and regulatory scheme. Massachusetts waters are protected from environmental degradation by a coordinated system of Federal and State control. The Federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. (2006) (Federal Act), seeks to prevent water pollution ¹⁰ primarily by requiring facilities that discharge pollutants into surface waters of the United States to obtain Federal permits that limit the amount of pollutants that may be discharged.¹¹ In addition to controlling discharges, Federal permits must address the unique ecological impacts of water intake at CWISs by ensuring that “the location, design, construction, and capacity of [CWISs] reflect the best technology available for minimizing adverse environmental impact.” Id. at § 1326(b).

The Federal Act also preserves a significant State role in the Federal permitting process. Subject to EPA review, States establish their own water quality standards. Id. at § 1313. In addition, States retain the right to impose pollution control limits that are more stringent than the “floor” set by Federal law. Id. at §§ 1311(b)(1)(C), 1370. Before a Federal permit may issue, the relevant State first must certify that the permittee's activities will not violate the State's water quality standards. Id. at § 1341. This “State certification” process ensures that holders of Federal permits respect and uphold State standards.

The State Act, G.L. c. 21, §§ 26–53, confers on the department “the duty and responsibility ... to enhance the quality and value of water resources and to establish a program for prevention, control, and abatement of water pollution.” G.L. c. 21, § 27. Like the Federal Act, the State Act creates a comprehensive permitting program to ensure water quality standards are met. Id. at §§ 27(6), 43–44.¹² No one may “discharge pollutants ... [or] engage in any other activity that may reasonably be expected to result, directly or indirectly, in discharge of pollutants into waters of the [C]ommonwealth ... without a currently valid permit” issued by the department. Id. at § 43(2). Permits may include not only discharge limitations but also any “additional requirements ... necessary to safeguard the quality of the receiving waters.” Id. at § 43(7). Violation of the terms of a permit is punishable by civil and criminal penalties. Id. at § 42.

In addition to establishing the permit program, the State Act directs that the department shall establish water quality standards. See id. at § 27(5). The standards promulgated by the department pursuant to this authority include the CWIS regulations at issue here. See 314 Code Mass. Regs. § 4.00 (2006). The State Act also confers on the department the authority to adopt “rules and regulations which it deems necessary for the proper administration of the laws relative to water pollution control and to the protection of the quality and value of water resources.” G.L. c. 21, § 27(12). Unlike the Federal Act, the State Act at no point refers explicitly to CWISs or to water intake.

3. Discussion. a. Availability of declaratory relief. “Unless an exclusive mode of review is provided by law, judicial review of agency regulations is to be gained through a petition for declaratory relief.” Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 720, 448 N.E.2d 367 (1983). We first consider whether Entergy's objections to the CWIS regulations present an “actual controversy” as required by the declaratory judgment act.¹³ The department contends that no actual controversy exists because the instant dispute is not “properly framed by specific factual circumstances.” The department argues that the CWIS regulations merely announce the department's authority to regulate CWISs. Although the department has indicated that it intends to use that authority in the future, the department maintains that Entergy faces no immediate impact from the promulgation of the CWIS regulations. The parties are not contemplating any modifications to Pilgrim's CWIS or permit that would trigger new oversight by the department. As a result, says the department, the concrete facts necessary for an actual controversy between the department and Entergy are not present.

An actual controversy exists where there is “a ‘real dispute’ caused by the assertion by one party of a duty, right, or other legal relation in which he has a ‘definite interest,’ in circumstances indicating that failure to resolve the conflict will almost inevitably lead to litigation.” District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659, 411 N.E.2d 1274 (1980), quoting Bunker Hill Distrib., Inc. v. District...