Secretary of Environmental Affairs v. Massachusetts Port Authority

• Decision Date: 05 February 1975
• Citation: 323 N.E.2d 329,366 Mass. 755
• Parties: , 5 Envtl. L. Rep. 20,200, 7 Envtl. L. Rep. 1759 SECRETARY OF ENVIRONMENTAL AFFAIRS et al. v. MASSACHUSETTS PORT AUTHORITY et al. (and a companion case). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 329

323 N.E.2d 329

366 Mass. 755, 5 Envtl. L. Rep. 20,200, 7 Envtl. L. Rep. 1759 SECRETARY OF ENVIRONMENTAL AFFAIRS et al. v. MASSACHUSETTS PORT AUTHORITY et al. (and a companion case).¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1974.

Decided Feb. 5, 1975.

John S. Hopkins, III, Boston (John D. O'Reilly, III, Framingham, Paul B. Galvani and John H. Mason, Boston, with him) for Massachusetts Port Authority and another.

Peter L. Koff, Asst. Corp. Counsel, and Daniel D. Sullivan, Boston (Herbert P. Gleason, Corp. Counsel, Boston, with them) for the City of Boston and interveners.

Gregor I. McGregor, Asst. Atty. Gen., for the Secretary of Environmental Affairs and another.

Before TAURO, C.J., and REARDON, BRAUCHER, KAPLAN, and WILKINS, JJ. REARDON, Justice.

The matter before us is a consolidated appeal from two amended judgments entered in the Superior Court in Suffolk County on September 13, 1974. In one case the city of Boston had sought declaratory and injunctive relief for alleged violation of the Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, §§ 61 and 62 (inserted by St.1972, c. 781, § 2), by the Massachusetts Port Authority (Massport) and by the Perini Corporation (Perini) in connection with the extension of two runways and the construction of another at the General Edward Lawrence Logan International Airport (Logan). In the case brought by the city of Boston, various interveners were admitted to join the plaintiffs. In the second case, the Secretary of Environmental Affairs (the Executive Office of Environmental Affairs is hereinafter referred to as EOEA), and the Secretary of Transportation and Construction (the Executive Office of Transportation and Contruction is hereinafter referred to as EOTC), sought substantially the same relief against the same defendants as in the case brought by the city of Boston. Following hearing the trial judge made findings, rulings and orders for judgment, and judgments were entered enjoining the defendants 'from any further construction of the Runways Project at Logan until the Massachusetts Port Authority has published a final environmental impact report and otherwise complied with the provisions of G.L. c. 30, §§ 61 and 62.' On motions of the defendants, the judgments were amended to permit certain work to be done to secure the project over the winter and for safety reasons.

The issues of the appeal may be simply stated:

1. Was the trial judge correct in his conclusion that the runways project did not 'commence' within the meaning of G.L. c. 30 § 62, until the execution of a contract between Massport and Perini for construction of runway extensions and a new runway in May, 1974, after the effective date of § 62?

2. Was the trial judge correct in his findings that the extension of two major runways and the addition of a new general aviation runway at Logan may cause environmental damage within the meaning of G.L. c. 30, § 62?

3. Is there a conclusive showing on the record that Massport has in fact complied with G.L. c. 30, § 61, with respect to the runways project?

Pertinent issues subsidiary to the three stated above will also be treated in this opinion.

. date of commencement/.

A. Factual Background.

A proper understanding of the issues requires a chronology of events which we construct in part from the judge's findings and by reference to other matters in the records and the parties' briefs. There is no real dispute on the facts. The chronology is as follows.

1. 1959. Massport began acquiring title to Bird Island Flats, a tidal flat on the south shoreline of the airport, and a master plan was drawn up outlining potential uses for the area. For an understanding of the areas involved, reference may be made to Figure 1 attached, the 1974 plan. This plan included a proposal to extend runway 4L into the Bird Island Fltas area.

2. 1964. The Massport board authorized contracts for fill for this area.

3. 1966. The Massport board authorized a contract for a feasibility study on the development of the Bird Island Flats area.

4. 1967. An Airport Layout Plan showed a proposed extension of runway 9 into the Bird Island Flats area. Extension of runway 4L, as proposed in the 1959 plan, was not included in this plan.

5. 1968. Massport authorized a contract for preparation of construction plans and specifications for the development of Bird Island Flats, to include an interceptor drain and rock dike encompassing the entire Bird Island Flats area (some 234 acres). According to the 1967 Airport Layout Plan, portions of the area were designated for future cargo and fuel storage and for airline hangars, in addition to the proposed runway 9 extension.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

FIGURE 1-PORTION OF MASSACHUSETTS PORT AUTHORITY 1974

AIRPORT LAYOUT PLAN (Ex. 37, p.1, R. 1003)

6. April 10, 1969. Massport awarded contracts for construction of the interceptor drain and the rock dike. This construction was completed in August, 1971.

That same day Massport authorized a bond issue, in part to pay for the drain interceptor and rock dike. No mention was made in the prospectus of runway extention apart from a reference to the drain and dike construction as permitting 'expansion of the airport to the south.'

7. May, 1969. Construction work began on the dike and interceptor drain. Massport subsequently cited this date as the date of commencement.

8. February, 1970. The Federal Aviation Administration approved Massport's 1970 Airport Layout Plan. This was the first plan which included extensions of both runways 4L and 9, and the first description of the proposed construction of a short takeoff and landing (STOL) runway. The present proposal, however, is to extend runway 9 approximately 400 feet farther than as shown in the 1970 plan, and to extend the STOL runway approximately 1,400 feet farther than as shown. The alignment of the STOL runway as presently contemplated is also slightly different. (See Figure 1.)

9. October 5, 1971. The Massport board authorized a second bond issue, in part for additional financing of the runways project. The prospectus referred to proposed extensions of runways 4L and 9 in the demensions described in the 1970 Airport Layout Plan.

10. February, 1972. The Massport board authorized a fill contract with The Barletta Co. Inc. (Barletta) which included provision for surcharging the area of the proposed runway extensions and the STOL runway, that is, piling gravel on the fill to cause complete settlement of the fill, thus giving the land the capability to support runways.

11. January 30, 1973. The Massport chairman gave notice of a public hearing on the runways project. The notice referred to extensions of runways 4L and 9 and construction of a STOL runway as staff suggestions, and stated:

'The Authority has neither approved nor disapproved the proposed improvements. It will not act until it has heard every comment which the public wishes to make at the hearing. The testimony presented at the hearing, together with other information, will be considered by the Authority before it decides whether to approve all, some or none of the suggested construction. . . . The public hearing is the primary opportunity for the public to comment on the proposed airport improvements. We consider it essential that the hearing occur early enough in the review process to affect the decisions ultimately made by the Authority.'

12. April 12, 1973. The Massport board authorized another bond issue, part of which was to be used to complete the filling of the Bird Island Flats area. The prospectus referred to runway 9 as being extended by 1,400 feet (as in the 1970 Airport Layout Plan) but noted that it might be extended by 1,800 feet instead.

13. July 1, 1973. Effective date of G.L. c. 30, § 62.

14. July 26, 1973. A contract was executed by Massport for engineering services, including '(p)reparation . . . of preliminary designs and drawings with supporting estimates of sufficient detail to define the construction required.'

15. May 16, 1974. The Massport board authorized execution of a contract with Perini for extention of runways 4L and 9 and construction of the STOL runway. This contract was executed on May 17, 1974, and Perini commenced work on May 23, 1974. The contract calls for extension of runway 4L by 1,896 feet, extension of runway 9 by 1,789 feet, and construction of a 3,830 foot STOL runway, together with taxiways, lighting, and drainage work. The contract includes excavation, grading, laying of pavement, and electrical work.

The contract with Perini makes provision for settlement in the event that for any reason the work contracted for is not completed.

B. Statutory Background.

Under G.L. c. 30, § 61, State agencies are required to evaluate the environmental impact of any projects undertaken and to use 'all practicable means and measures to minimize damage to the environment.' Further, '(u)nless a clear contrary intent is manifested, all statutes shall be interpreted and administered so as to minimize and prevent damage to the environment.'

The operative section of MEPA is G.L. c. 30, § 62, providing for an environmental impact report (EIR) to describe the environmental impact of proposed projects, measures being utilized to minimize environmental damage, any adverse short term or long term consequences with cannot be avoided, and alternatives to the proposed action. The key provision applicable to this case is the first paragraph of § 62: 'No . . . authority of the commonwealth . . . shall commence any work, project, or activity which may cause damage to the environment until sixty days after it has published a final environmental impact report in accordance with the provision of this section or until sixty days after a public hearing on said report, provided that research, planning, design and other preliminary work necessary to describe and evaluate such project for...