Cummings v. Secretary of Environmental Affairs

• Decision Date: 20 June 1988
• Citation: 524 N.E.2d 836,402 Mass. 611
• Parties: DAMON E. CUMMINGS & others vs. SECRETARY OF ENVIRONMENTAL AFFAIRS & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

402 Mass. 611

524 N.E.2d 836

DAMON E. CUMMINGS & others¹ vs. SECRETARY OF ENVIRONMENTAL AFFAIRS & others.²

Supreme Judicial Court of Massachusetts, Suffolk.

October 9, 1987.

June 20, 1988.

Present: HENNESSEY, C.J., ABRAMS, NOLAN, LYNCH, & O'CONNOR, JJ.

Gregor I. McGregor (Cynthia L. Amara with him) for the plaintiffs.

Stephen C. Karnas, Assistant Attorney General, for Secretary of Environmental Affairs & another.

Stephen M. Leonard for Gloucester Landing Associates.

Stephen D. Anderson & Arthur P. Kreiger, for Sierra Club, amicus curiae, submitted a brief.

Richard S. Emmet, for Conservation Law Foundation of New England, Inc., amicus curiae, submitted a brief.

O'CONNOR, J.

The plaintiffs, ten citizens of the Commonwealth, allege in their complaint that the defendant Secretary violated the Massachusetts Environmental Policy Act (MEPA), G.L.c. 30, §§ 61-62H, in determining that no environmental impact report (EIR) was required for a mixed use commercial development project proposed by the defendant, Gloucester Landing Associates, to be located on property owned by the defendant, Gloucester Redevelopment Authority. The complaint was dismissed in the Superior Court, and the plaintiffs appealed to the Appeals Court. We transferred the case to this court on our own motion, and we now affirm the Superior Court judgment.

General Laws c. 30, § 62H (1986 ed.), provides in part: "An agency or person intending to commence an action or proceeding alleging an improper determination of whether a project requires the preparation of an environmental impact report under section sixty-two A, shall first provide notice of intention to commence such action or proceeding within sixty days of issuance of notice of such determination." It is undisputed that the plaintiffs provided notice of their intention to commence this action more than sixty days after the secretary issued the developer a certificate stating that no EIR was required. However, it also is undisputed that the plaintiffs provided that notice less than sixty days after the Secretary had published notice of his determination in the Environmental Monitor, a bimonthly publication of the Secretary's office. The only question argued in the Superior Court, and initially argued here, was whether the sixty-day notice period commenced with the issuance of the certificate, in which case the notice would have been too late, or commenced later when the notice was published in the Environmental Monitor. In the latter case, the notice would have been timely. The motion judge agreed with the developer's contention that the limitations period commenced with the Secretary's issuance of a certificate of his determination. Therefore, he allowed the developer's motion to dismiss.

On appeal, this court was unwilling to assume, as the parties had, that, if the notice requirements of c. 30, § 62H, are met, members of the public have a right to judicial review of the Secretary's determination that no EIR is necessary. Accordingly, we ordered further briefs to assist us in resolving that critical question. The question is jurisdictional. Does the Superior Court have subject matter jurisdiction of an action brought by ten or more citizens challenging a determination by the Secretary that no EIR is necessary? Boston v. Massachusetts Port Auth., 364 Mass. 639, 644-645 (1974). Of course, in the absence of such jurisdiction, further inquiry in this case with respect to the notice provisions of G.L.c. 30, § 62H, would be inappropriate.

We phrased the issues for supplemental briefing as follows: "1. Does the Superior Court have subject matter jurisdiction of an action by ten citizens challenging the Secretary's determination that no Environmental Impact Report (EIR) is required? Is such a determination reviewable by the Superior Court? 2. Does the sixty day period for filing a notice of intention to commence suit (NOI) apply to challenges to the Secretary's determination that an EIR is not required?" Our questions invited the parties to discuss whether the Superior Court had jurisdiction either on the basis of G.L.c. 214, § 7A (1986 ed.), which provides for actions by ten persons domiciled within the Commonwealth in certain circumstances, or on any other basis. In their supplemental brief, the plaintiffs' argument in support of jurisdiction focuses entirely on G.L.c. 214, § 7A, G.L.c. 30, § 62H, regulations promulgated by the Secretary, and the Commonwealth's environmental policy.

Neither G.L.c. 30, § 62H, nor the Secretary's regulations confer jurisdiction on the Superior Court. Section 62H does not purport to grant jurisdiction. It simply provides, with respect to actions over which a court has jurisdiction from another source, that such actions must be commenced within a certain period following specified events. It is essentially a statute of limitations. Furthermore, although it is clear from regulations promulgated by the Secretary, as well as from the Secretary's position in this appeal, that he believes that his determinations that no EIR is required are subject to judicial review, the Secretary cannot confer jurisdiction on the courts by regulation, and his opinion with respect to the existence of jurisdiction is neither controlling nor entitled to special weight. The Secretary's expertise with respect to environmental matters does not extend to the question whether, under Massachusetts law, his determinations are subject to judicial review. The question of jurisdiction in this case must be resolved by this court's construction of G.L.c. 214, § 7A, as inserted by St. 1974, c. 1114, § 62. See Babson v. Boston Rent Control Adm'r, 371 Mass. 404, 405 (1976); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir.1984); Edwards v. Califano, 619 F.2d 865, 869 (10th Cir.1980).

General Laws c. 214, § 7A, provides in relevant part as follows: "The superior court for the county in which damage to the environment is occurring or is about to occur may, upon a civil action in which equitable or declaratory relief is sought in which not less than ten persons domiciled within the commonwealth are joined as plaintiffs ... determine whether such damage is occurring or is about to occur and may, before the final determination of the action, restrain the person causing or about to cause such damage; provided, however, that the damage caused or about to be caused by such person constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment."

In Boston v. Massachusetts Port Auth., 364 Mass. 639 (1974), a case heavily relied on by the plaintiffs and the Secretary, this court construed G.L.c. 214, § 10A (repealed), the predecessor of c. 214, § 7A, and like it in all material respects. The only violations alleged were that the Authority failed to comply with certain procedural steps required by statute and regulation. Nevertheless, this court held that "a petition under § 10A will lie to enforce the procedural as well as the prohibitory provisions of the Department's of Public Health regulations." Id. at 646-647. We reasoned that the purpose of MEPA was to protect the environment, and that, therefore, an allegation of a violation of MEPA or a regulation pursuant to MEPA qualified under § 10A as a claim that "damage to the environment is occurring or is about to occur." We continue to subscribe to that principle. Therefore, if the plaintiffs in this case were alleging, as did the plaintiff in Boston v. Massachusetts Port Auth., supra, that a developer or agency proposing a project failed to comply with the procedural requirement of a statute or regulation designed to protect the environment, the Superior Court would have subject matter jurisdiction under G.L.c. 214, § 7A.

The plaintiffs here, however, do not allege that the developer or agency proposing a project has failed to comply with MEPA or a regulation promulgated pursuant to MEPA. Indeed, the plaintiffs do claim a violation of MEPA, but they identify that violation as the failure of the Secretary to require an EIR. The claim on appeal is that the Secretary, who is the public official charged with administering the Commonwealth's environmental protection scheme, see G.L.c. 21A, and who, under G.L.c. 30, § 62A, determines whether an EIR is required, may be guilty of a violation of MEPA by determining that no EIR is necessary. That is a quite different contention from a contention that a proponent of a project has failed to comply with applicable regulations or statutory directives.

The contention here is also unlike the contention made by the plaintiff in Secretary of Envtl. Affairs v. Massachusetts Port Auth., 366 Mass. 755 (1975). In that case, this court agreed with the plaintiff that the defendant's failure to file an EIR violated G.L.c. 30, § 62. But, at that time, c. 30, § 62, required an authority, such as the defendant in that case, to file an EIR when its proposed project "may cause damage to the environment." See G.L.c. 30, § 62, as amended by St. 1974, c. 257, § 1. No "violation" by the Secretary was alleged. Boston v. Massachusetts Port Auth., supra, and Secretary of Envtl. Affairs v. Massachusetts Port Auth., supra, are inapposite to the present controversy.

The Legislature substantially revised MEPA in 1977. See St. 1977, c. 947. In that act, after declaring its purpose to be "to immediately expedite environmental approvals and rules and regulations thereof under the laws regulating environmental policy in the commonwealth," the Legislature inserted into G.L.c. 30 a new § 62A (the current § 62A), which provides in part that the Secretary "shall issue a certificate stating whether an environmental impact report is required." As a result of St. 1977, c. 947, a proponent of a project violates the law by failing to file an EIR only if the Secretary determines that one is required. As we have noted, no claim is made here...