The Massachusetts Supreme Judicial Court has ruled that the Department of Environmental Protection (DEP) did not have authority to give the Secretary of Environmental Affairs the power to approve municipal harbor plans containing less stringent standards than DEP’s own regulations. Armstrong v. Sec’y Energy & Envtl. Affairs, No. SJC-13210 (Mass. July 12, 2022). In the highly anticipated decision, the Court uprooted a regulatory scheme that has been in place for 30 years, concluding that DEP cannot delegate the public trust responsibilities specifically assigned to it by the legislature under the Massachusetts Public Waterfront Act, Mass. Gen. L. chap. 91; only the legislature can assign these duties.

By way of background, Massachusetts courts have consistently held that tidelands are impressed with a public trust. The legislature is charged with protecting that trust interest, but it can by specific actions delegate its obligations. Chapter 91 delegates the regulatory authority over waterfront development to DEP. DEP adopted regulations setting out standards for development along waterways, 310 CMR § 9.00.  Those DEP regulations authorize municipal harbor plans (MHPs) under which a municipality can vary the standards for nonwater-dependent development in the area impressed with the public trust, provided that the Secretary of Environmental Affairs approves the MHP.

The Armstrong decision holds that the public trust doctrine does not allow for implicit delegations of regulatory authority. The legislature must be explicit. Therefore, reasoned the Court, an MHP approved by the Secretary, but not by DEP, cannot set the height, setback, and other standards for development.

The Armstrong court did not address the implications of its ruling for waterfront real estate developments that have been approved over the past three decades using the provisions for municipal harbor plans. Many anticipate that the state’s legislature or the DEP itself will move to issue “curative” measures. Indeed, DEP has proposed revisions to its regulations motivated by the Appeals Court decision in Armstrong summarized here: EOEEA Summary of Draft Regulations.

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Photo of Lauren A. Liss Lauren A. Liss

Lauren A. Liss focuses her practice on environmental law and policy as well as real estate development. Lauren has deep public and private sector experience, having served in a variety of governmental roles, including as president and CEO of the Massachusetts Development Finance…

Lauren A. Liss focuses her practice on environmental law and policy as well as real estate development. Lauren has deep public and private sector experience, having served in a variety of governmental roles, including as president and CEO of the Massachusetts Development Finance Agency. In this role, she led the state’s quasi-public finance and development agency, working with businesses, nonprofits, banks, and communities to stimulate economic growth across the Commonwealth. She previously served as commissioner of the Department of Environmental Protection for the Commonwealth of Massachusetts, and as general counsel and deputy secretary for Environmental Policy at the Executive Office of Transportation and Construction for the Commonwealth of Massachusetts. Additionally, she was senior environmental counsel for the Central Artery/Ted Williams Tunnel project.

Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights