Enos v. Secretary of Environmental Affairs

Decision Date04 May 2000
Citation731 NE 2d 525,432 Mass. 132
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


William L. Pardee, Assistant Attorney General (Edwards G. Bohlen, Assistant Attorney General, with him) for the defendant. William S. Abbott for the plaintiffs.

William C. Henchy, for Massachusetts Audubon Society, Inc., amicus curiae, submitted a brief.


The plaintiffs, fourteen property owners in Plymouth (town), brought a complaint in the Superior Court seeking a declaratory judgment, pursuant to G. L. c. 231A, that a certificate of compliance issued by the defendant, the Secretary of Environmental Affairs (Secretary), to the town concerning the construction of a sewage treatment plant is invalid. The Secretary's certificate responded to the final supplemental environmental impact report (FSEIR), filed by the town to permit the implementation of the town's "Waste Water Facilities Plan" (project). The plaintiffs' complaint also sought an order directing the Secretary to require the town to submit a revised FSEIR for further administrative review. A judge in the Superior Court allowed the Secretary's motion to dismiss the complaint on the basis that the plaintiffs lacked standing to maintain their action. The Appeals Court reversed the judgment of dismissal, concluding that the plaintiffs had standing, because "[t]he complaint on its face ... sufficiently alleges that the plaintiffs will incur injuries and damages which fall within the zone of concern which MEPA [the Massachusetts Environmental Protection Act], and the supporting administrative process, were designed to protect," and, as a consequence, the plaintiffs could seek to enforce against the Secretary all the requirements of MEPA. Enos v. Secretary of Envtl. Affairs, 48 Mass. App. Ct. 239, 248 (1999). We granted the Secretary's application for further appellate review, and we now affirm the judgment of the Superior Court.

The background of the case is more fully set forth in the opinion of the Appeals Court. Id. at 239-242. We now summarize the essential facts. According to the complaint, the town operates a sewage treatment facility, including an outfall pipe that empties into Plymouth Harbor, under a permit issued by the Department of Environmental Protection (department). The permit limits the quantity of treated effluent that can be disposed through the outfall pipe to 1.75 million gallons a day.

In 1987, the department sued the town for violating the terms of the permit. In 1992, the town agreed to construct a new treatment plant and disposal facility, and this agreement was embodied in a consent decree. The town identified two sites for the plant, one known as the "Digital Site," and the other at the Camelot Industrial Park, at the headwaters of the Eel River. Eventually, the town selected the Camelot Industrial Park site, and prepared an environmental impact report (EIR) for a facility at that site. On September 13, 1996, the Secretary issued a certificate that the town's draft EIR "adequately and properly complies with MEPA."

The town then appropriated funds for design and construction, but, in January, 1997, the project was voted down in a referendum. The town next filed a notice of project change in order to reevaluate siting alternatives, and, on April 30, 1997, the town submitted a FSEIR reaffirming the Camelot Industrial Park site as the preferred alternative. On June 16, 1997, the Secretary certified that the FSEIR adequately and properly complied with MEPA.

The plaintiffs reside in the town between 2,000 and 6,000 feet, approximately, from the site of the proposed facility. Most of the plaintiffs own property on the Eel River, and all make use of, and enjoy, the river in one way or another. The plaintiffs allege that construction and operation of the treatment facility will impair their use and enjoyment of their properties and of the Eel River, diminish the value of their properties, and impair the function of their private septic systems and wells. Two plaintiffs, Marjorie S. and John R. Nickerson, also allege that the facility will adversely affect the operation of their trout hatchery and cranberry bogs.

The complaint alleges that the FSEIR is deficient in many ways, including responding to comments; in analyzing environmental impacts; in tracing, summarizing, and quantifying environmental effects; in discussing alternatives to proposed mitigation measures; in failing to address the "no-build" alternative; and in not clearly identifying the funding, timing, and responsible party for each physical measure and management technique intended to limit negative impacts. The complaint concludes that, by certifying compliance with MEPA, the Secretary "will prevent and/or impair the use and enjoyment of property owned by each of the plaintiffs, and prevent and/or impair the plaintiffs' use and enjoyment of the Eel River watershed."2

1. The dispositive question is whether the plaintiffs have demonstrated that they have standing to maintain their action under G. L. c. 231A. "A party has standing when it can allege an injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred." Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977). See Bonan v. Boston, 398 Mass. 315, 320 (1986) (standing requires "a definite interest in the matters in contention in the sense that [a plaintiff's] rights will be significantly affected by a resolution of the contested point"). See also Pratt v. Boston, 396 Mass. 37, 42 (1985); Doe v. The Governor, 381 Mass. 702, 704-705 (1980). We have said that "standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy." Pratt v. Boston, supra,

quoting Valley Forge College v. Americans United for Separation of Church & State, 454 U.S. 464, 486 (1982). It is settled that G. L. c. 231A does not provide an independent statutory basis for standing. Pratt v. Boston, supra at 42-43. See Konstantopoulos v. Whately, 384 Mass. 123, 127 (1981). To have standing here, the plaintiffs' interests must come within the "`zone of interests' arguably protected by [MEPA, G. L. c. 30, §§ 61-62H] .... [I]t is not enough that the plaintiff[s] be injured by some act or omission of the defendant; the defendant must additionally have violated some duty owed to the plaintiff[s]." Penal Insts. Comm'r for Suffolk County v. Commissioner of Correction, 382 Mass. 527, 532 (1981), quoting L.H. Tribe, American Constitutional Law § 3-22, at 97-98 (1978).

The terms used to define a plaintiff's standing — "injury within the area of concern"; "definite interest in the matters in contention"; "violation of duty owed" — are elastic concepts that have different meanings for different parties. Plaintiffs asserting standing invariably see their interests as squarely within the disputed area of concern, and they adopt an "on a clear day you can see forever" approach to standing. Defendants, on the other hand, invariably view the issue of standing more narrowly and, unless standing on the part of the plaintiffs is definitely present, seek to insulate the governmental conduct in dispute from judicial review. In the final analysis, we must decide whether standing exists by examining several considerations, including the language of the statute in issue; the Legislature's intent and purpose in enacting the statute; the nature of the administrative scheme; decisions on standing; any adverse effects that might occur, if standing is recognized; and the availability of other, more definite, remedies to the plaintiffs. In making our inquiry, we pay special attention to the requirement that standing usually is not present unless the governmental official or agency can be found to owe a duty directly to the plaintiffs.

(a) We first discuss MEPA, its legislative purpose, and its administrative scheme. MEPA consists of two complementary provisions. General Laws c. 30, § 61, establishes an official policy of environmental protection in the Commonwealth by directing that all State agencies "review, evaluate, and determine the impact on the natural environment of all works, projects or activities conducted by them and ... use all practicable means and measures to minimize damage to the environment." Section 61 directs that an agency, before taking any action on a project, make substantive findings "describing the environmental impact, if any, of the project and [certifying] that all feasible measures have been taken to avoid or minimize said impact." In aid of this directive, G. L. c. 30, §§ 62-62H, establishes a process, supervised by the Secretary, for thorough consideration of the potential environmental impact of certain projects through preparation of draft and final environmental impact reports (EIRs), and submission of these EIRs to interested State agencies and to the public.

MEPA review begins when the proponent of the project files an environmental notification form (ENF), to advise the Secretary of the nature of the project. G. L. c. 30, § 62A. After a thirty-day review period, during which the Secretary consults with the agency and other interested parties, the Secretary issues a written certificate stating whether an environmental impact report (EIR) is required and, if so, the form, scope, content, and level of detail of the EIR. Id. The statute directs that an EIR must describe "the nature and extent of the proposed project and its environmental impact; all measures being utilized to minimize environmental damage; any adverse short-term and long-term environmental consequences which cannot be avoided should the project be undertaken; and reasonable alternatives to the proposed project and their environmental consequences." G. L. c. 30, § 62B. When an...

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