14 N.E.3d 167
Mass.2014Background
- Brockton Power filed a petition under G. L. c. 164, § 69J¼, to construct a 350‑MW gas/ULSD facility in Brockton; the Energy Facilities Siting Board approved with conditions.
- Interveners challenged the EJ policy application, reliance on NAAQS, Logan Airport meteorological data, water supply impacts, and traffic routing/impacts.
- The EJ policy, promulgated by EOEEA in 2002, applies to EOEEA agencies and requires enhanced public participation and, when triggers exist, enhanced analysis under MEPA; the board held the EJ policy applies to its review as an ‘environmental protection policy.’
- MEPA review occurred; the Secretary certified the project exceeded ENF thresholds for air but not the mandatory EIR threshold, yet enhanced public participation was required due to EJ proximity.
- During proceedings Brockton Power sought changes (PCF) to water source, ULSD usage, and structure height; the board denied water-source changes but approved other modifications, prompting related appeals.
- The court reviews the board’s action for substantial evidence, to determine whether the decision conforms with constitutional standards and agency procedures, and was not arbitrary or an abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EJ policy is reviewable under § 69J¼ Fifth Part | Interveners contend EJ policy is reviewable as an environmental protection policy. | Board/Brockton Power argue EJ policy is internal guidance not subject to review. | EJ policy reviewable under § 69J¼, fifth par. |
| Whether the EJ policy was correctly applied to Brockton Power | Policy requires enhanced analyses where EJ concerns are triggered. | MEPA threshold did not trigger enhanced analysis; only outreach was required. | Policy not triggered for enhanced analysis; board properly limited to enhanced outreach. |
| Whether reliance on NAAQS for PM2.5 was appropriate and supported by substantial evidence | NAAQS standards are insufficiently protective and not evidence-based for this petition. | Board reasonably relied on EPA/DEP standards to minimize impacts and for regulatory context. | Board’s use of NAAQS was consistent with mandate and not arbitrary. |
| Whether Logan Airport meteorological data were adequate for modeling | Data from Logan Airport do not reflect Brockton conditions; Taunton data are closer but inadequate per EPA guidelines. | Logan data, with Taunton supplement, constitute substantial evidence; on-site data were unavailable. | Logan Airport data with supplemental Taunton data sufficed; board did not err. |
| Whether the board properly analyzed the facility's impact on the town's drinking water | Board failed to provide adequate subsidiary findings and relied on disputed hydrology data. | Record supports substantial evidence that river flows would recharge wells; subsidiary findings not required beyond substantial basis. | Board’s determination supported by substantial evidence; no abuse of discretion. |
| Whether traffic routing restrictions were within the board’s statutory authority | Delivery routes chosen by the board impose impermissible constraints on traffic planning. | Local land-use and environmental impact considerations permit board to regulate routes to minimize impacts. | Board acted within authority; routes supported by substantial evidence. |
Key Cases Cited
- Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45 (Mass. 2006) (deference to agency evidentiary rulings; substantial evidence standard)
- Andover v. Energy Facilities Siting Bd., 435 Mass. 377 (Mass. 2001) (air-pollution modeling and MEPA framework; agency discretion)
- Box Pond Ass'n v. Energy Facilities Siting Bd., 435 Mass. 408 (Mass. 2001) (agency credibility and evidentiary weighing; substantial evidence review)
- Alliance II, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663 (Mass. 2010) (agency interpretation of statute; deference to board conclusions)
- American Farm Bureau Federation v. EPA, 559 F.3d 512 (D.C. Cir. 2009) (agency justification for PM2.5 standard; remand and explanation)