Town of Walpole v. Secretary of the Executive Office of Environmental Affairs

• Decision Date: 15 May 1989
• Citation: 537 N.E.2d 1244,405 Mass. 67
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1244

537 N.E.2d 1244

405 Mass. 67

TOWN OF WALPOLE

v.

SECRETARY OF THE EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

et al. ¹

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued March 8, 1989.

Decided May 15, 1989.

John W. Giorgio, Boston, for plaintiff.

Janet G. McCabe, Asst. Atty. Gen., for defendants.

Before WILKINS, LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff, the town of Walpole (town), filed a complaint in the Superior Court on January 29, 1988, seeking review of a determination by the defendant Secretary of the Executive Office of Environmental Affairs (secretary) that reports filed by the defendant Massachusetts Water Resources Authority (authority) "adequately and properly complied" with the Massachusetts Environmental Policy Act (MEPA), G.L. c. 30, §§ 61-62H (1986 ed.), and its implementing regulations. The defendants filed a motion to dismiss under Mass.R.Civ.P. 12(b)(1) and (b)(6), 365 Mass. 754 (1974). A judge in the Superior Court granted that motion, concluding that the "suit is premature and does not give a ground for court action at this time." The town appealed, and we transferred the case to this court on our own initiative. We now affirm.

The complaint makes the following allegations. The authority is in the process of planning for the construction of facilities to be used in the collecting, transporting, processing, and disposing of residual materials from the authority's wastewater treatment plants. This project is called the residuals management facilities project (project). The authority submitted to the secretary an environmental notification form concerning the project. At the request of the authority, the secretary issued a certificate declaring the project to be a "major and complicated" one pursuant to the regulations now codified at 301 Code Mass.Regs. § 11.12 (1986). The secretary also issued a certificate pursuant to G. L. c. 30, § 62A, and 301 Code Mass.Regs. § 11.12, establishing a special procedure for evaluating and reviewing the project. This special procedure called for the authority to issue a series of interim reports addressing the nature of the residuals to be treated, evaluating the technologies available for treating residuals, and analyzing potential sites for the project. These interim reports eventually would culminate in a final option analysis report which would also serve as the final environmental impact report required under MEPA.

The complaint continues: On August 20, 1987, the authority issued two of the required interim reports. One of these, a two-volume site screening analysis report, developed criteria for analyzing potential sites, and then evaluated 299 potential sites within the authority's service area according to those criteria. The other, the draft report on candidate options identification (draft COI report), identified twelve locations within the authority's service area as potential sites for permanent sludge management activities. Three of these potential sites were within the town. The town filed comments with the secretary alleging deficiencies in the draft COI report. On December 2, the secretary issued the certificate which prompted this action, finding that the site screening analysis report and the draft COI report, "adequately and properly comply" with MEPA and its implementing regulations.

The town sought judicial relief in the form of a declaration that the secretary's certification was improper because it was contrary to MEPA, the regulations implementing MEPA, and the special procedure established by the secretary. The town also sought preliminary and permanent injunctions preventing the authority and the secretary from proceeding with the project until they publish reports complying with MEPA, the regulations implementing MEPA, and the special procedures, and preventing the further consideration of any location in the town as a site for a residuals management facility. The town asserts four different jurisdictional bases for its action. Count 1 purports to challenge the secretary's certification of the draft COI report under G.L. c. 30, § 62H. Count 2 alleges that the secretary's action is "about to cause damage to the environment," in violation of G.L. c. 214, § 7A (1986 ed.). Count 3 seeks declaratory relief under G.L. c. 231A (1986 ed.). Count 4 alleges an action in the nature of certiorari brought under G.L. c. 249, § 4 (1986 ed.).

The judge properly dismissed the first count of the complaint. As we determined in Cummings v. Secretary of the Executive Office of Envtl. Affairs, 402 Mass. 611, 613, 524 N.E.2d 836 (1988), G.L. c. 30, "[s] 62H does not purport to grant jurisdiction.... It is essentially a statute of limitations." The town attempts to distinguish Cummings, which involved a challenge to the secretary's determination that a project did not require an environmental impact report, from the case at hand, which the town characterizes as a challenge to a "scoping decision" by the secretary in which he designates the alternatives to be studied in a project where an environmental impact report is required. Even if we accept the town's characterization of this case, we find no basis for distinguishing Cummings. Our conclusion in that case, which we reaffirm today, was that § 62H does not confer jurisdiction on the Superior Court in any circumstances.

It was also proper for the judge to dismiss the second count of the complaint, which alleged jurisdiction under G.L. c. 214, § 7A. That statute 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 ... by any political subdivision of the commonwealth, 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." The town alleges that the secretary's approval of the draft COI report violates MEPA and regulations promulgated pursuant thereto. As we recognized in Cummings, supra, even an allegation of a procedural violation of MEPA or a regulation promulgated pursuant to MEPA may qualify "as a claim that 'damage to the environment is occurring or is about to occur' " for purposes of an action brought under c. 214, § 7A. Id. at 614-615, 524 N.E.2d 836. However, as we also noted in Cummings, in the MEPA context, "the Legislature contemplated only the agency or authority or private person proposing a project, and not the public official who administers the statutory scheme, as 'the person causing or about to cause' environmental damage. See Warren v. Hazardous Waste Facility Site Safety Council, 392 Mass. 107, 118, 466 N.E.2d 102 (1984)." Id. at 616, 524 N.E.2d 836. We therefore held that the Superior Court lacked jurisdiction to hear an action brought under c. 214, § 7A, against the secretary for actions taken as the administrator of MEPA. Likewise, the Superior Court lacks jurisdiction in this case to hear the town's claim against the secretary under c. 214, § 7A.

The town argues that, even if c. 214, § 7A, does not provide a basis for...