Massachusetts SJC Sets Review Standard for Section 61 Findings under MEPA

In a recent decision, the Supreme Judicial Court of Massachusetts for the first time articulated a specific standard of review of agency findings under G.L. c. 30, § 61 ("§ 61 Findings"), but adopted the position that § 61 Findings should be based on the record established during the preceding environmental review process under the Massachusetts Environmental Policy Act (MEPA).

In Sierra Club v. Commissioner of the Department of Environmental Management, SJC-08857 (July 14, 2003), the SJC vacated a judgment of the Superior Court (after transferring the case from the Court of Appeals), which enjoined the Commissioner of the Department of Environmental Management (the commissioner) from authorizing or permitting Wachusett Mountain Association, Inc. (WMA) to implement plans for constructing new ski trails or widening existing ones, and which declared that the commissioner’s § 61 Findings do not comply with the statutory requirements.

The SJC affirmed the traditional view that the courts should show substantial deference to agency decisions, in this instance § 61 Findings. But, since the SJC’s decision requires the agency to base its § 61 Findings on the detailed record established during the MEPA process, agencies and developers should be careful in explicating how the § 61 Findings (and the prior proposed § 61 Findings) derive from the record established during the MEPA process.

Under legislative mandate (G.L. c. 132A, § 2D and Statute 1977, c. 287) and after environmental review under MEPA, the commissioner entered into a 30-year lease with WMA for the ski area in the Wachusett Mountain State Reservation. In 1993, WMA, hoping to expand the ski area by adding new ski trails and widening existing ski trails within the leased property, began a new MEPA review process.

The main environmental concern on which the MEPA process focused was the possible damage that the new and expanded ski trails might cause to an "old growth forest" that covered significant portions of Mt. Wachusett. WMA revised its initial plans "to place all new clearing and widening of ski trails outside of the area where the old growth forest is located." Still, the Sierra Club, one of the commenters during MEPA review, was concerned about adverse "edge effects" in the transition zone between old growth and cleared land.

In 1999, the Secretary of the Executive Office of Environmental Affairs (the secretary) issued her certificate of compliance under MEPA for the Supplemental Final Environmental Impact Review (SFEIR) submitted by WMA. Four months later, as part of his approval of a modification to WMA’s lease, the commissioner issued his § 61 Findings, thus completing the MEPA process.

The Superior Court held that the commissioner’s § 61 Findings, specifically the findings that the project was needed and that all feasible measures had been taken to avoid or minimize environmental damage from the trail work, were not supported by substantial evidence. The SJC rejected the Superior Court’s adoption of a substantial evidence standard. Ruling that the MEPA Process, culminating in the § 61 Findings, are more regulatory than adjudicatory, the SJC held that "[t]he standard of review… is arbitrary and capricious, that is, lacking a rational basis."

The SJC found that "the commissioner’s approval of a modification to [WMA’s] lease, did not result from the commissioner’s adjudication of WMA’s rights, but from his exercise of a legislative function." Referring to G.L. c. 132A, §§ 2-2D, the court held that "[t]he commissioner’s decision to approve a particular lease or lease modification agreement for the ski area is an exercise of the powers and duties delegated to him for the purpose of implementing the legislative policy for development of certain state-owned lands for recreational purposes while preserving the natural state of such lands so far as practicable." Consequently, the SJC concluded that the commissioner’s decision, and specifically his § 61 Findings, should be reviewed under the "arbitrary or capricious" standard.

Under § 61 of MEPA, any agency that takes action on a project for which the secretary required an Environmental Impact Review (EIR) must determine whether the project is likely, directly or indirectly, to cause any "damage to the environment" and make a finding describing the damage to the environment and confirming that all feasible measures have been taken to avoid or minimize the damage to the environment. 301 CMR § 11.12(5).

Based on two early SJC decisions, the MEPA Regulations require that "the Agency base its Section 61 Findings on the EIR…." 301 CMR § 11.12(5)(a). The Sierra Club decision, by explicitly endorsing 301 CMR § 11.12(5)(a), places greater emphasis than did those earlier (or any other) cases on the need to demonstrate how the § 61 Findings derive from the record established during the preceding MEPA process, and specifically from the EIR.

In Sierra Club, the SJC rejected the Superior Court’s conclusion "that the record did not support the § 61 findings confirming the need for new trails and that all feasible measures had been taken to avoid or minimize environmental damage." After a thorough review of the MEPA process, the SJC found that "[e]nvironmental impacts were adequately considered." The court held that "[t]he commissioner’s § 61 findings extensively described both the potential sources and nature of environmental impacts arising from the proposed expansion of the ski area, as well as the measures that would be required of WMA to mitigate and minimize the impacts on the environment." Specifically, the court described the establishment of a monitoring program and the maintenance of buffer zones between the old growth forest and the new or expanded ski trails to mitigate the adverse "edge effects" in the transition zone between old growth and cleared land.

The court’s decision makes clear that the commissioner based his § 61 Findings and the decision to modify the lease on the results from the MEPA process. For example, regarding the examination of alternative sites for the ski trails, the SJC referred to the commissioner’s memorandum to the Board of Environmental Management, where the commissioner "summarized the alternative site analysis conducted by WMA during the MEPA process."

The SJC, in Sierra Club, set a high standard for review of § 61 Findings, thus reaffirming that a substantial degree of deference will be shown to the agency’s findings. However, the SJC also endorsed the MEPA Regulation requiring that "the Agency base its Section 61 Findings on the EIR." As a practical matter, this ruling urges greater caution in explicating how the § 61 Findings (and the Proposed § 61 Findings in the EIR) derive from the MEPA process record than may have traditionally been the practice of many agencies and development. "[A] bare recital of the statutory conditions" will not suffice. City of Boston v. Massachusetts Port Authority, 364 Mass. 639, 660, 308 N.E.2d 488, 502 (1974) citing McNeely v. Board of Appeal of Boston, 358 Mass. 94, 103 (1970). So long as the derivation of the § 61 Findings from the MEPA process record is presented with sufficient specificity, the agency and the developer should enjoy the greater deference afforded by the "arbitrary and capricious" standard.