Massachusetts Court Clarifies Environmental Justice Requirements for Agencies

In GreenRoots, Inc. v. Energy Facilities Siting Board, the Massachusetts Supreme Judicial Court (SJC), for only the second time, had an opportunity to interpret the Environmental Justice Policy (EJ Policy) promulgated by the Executive Office of Energy and Environmental Affairs (EOEEA). The first time, in the 2014 case City of Brockton v. Energy Facilities Siting Board, the SJC decided, first, that the Energy Facilities Siting Board’s (EFSB) application of the EJ Policy was subject to judicial review, despite the EJ Policy’s express disclaimer that it doesn’t create any right to judicial review, and second, that agencies must provide greater public participation and increased scrutiny for projects near EJ populations that exceed certain environmental thresholds.

In GreenRoots the SJC clarified the second takeaway from City of Brockton, holding that the EFSB and other agencies under EOEEA’s purview must provide “enhanced public participation” and “enhanced analysis of impacts and mitigation” for projects that both 1) exceed the “Environmental Notification Form (ENF) threshold” for air, solid and hazardous waste, or wastewater and sewage, and 2) are located within 1 mile of an EJ population, or within 5 miles for projects that exceed the ENF threshold for air. Below ENF thresholds agencies still are “bound by ‘a general, but affirmative, requirement’ to ‘promote environmental justice’ in a manner consistent with its mission.”