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Cummings v. Secretary of the Executive Office of Envtl. Affairs

ELR Citation: 18 ELR 21333
Nos. No. 4499, 524 N.E.2d 836/402 Mass. 611, (Mass., 06/20/1988)

The Massachusetts Supreme Judicial Court holds that the decision of the Secretary of the Executive Office of Environmental Affairs not to require an environmental impact report (EIR) under the Massachusetts Environmental Protection Act (MEPA) is not judicially reviewable. MEPA's provision governing judicial review of the secretary's EIR determinations refers only to the need to file a noticeof intent to sue within 60 days; the section assumes, however, that the court already has jurisdiction over the matter in dispute. The secretary's opinion that his determination that no EIR is required is subject to review is irrelevant, since the secretary's environmental expertise does not extend to the court's jurisdiction. Another provision concerning citizen suits also does not apply, since the section provides only for a cause of action against the person causing environmental damage if such damage constitutes a violation of an environmental statute or regulation. The court holds that the secretary's decision not to require an EIR does not constitute a violation of MEPA. There are no provisions in MEPA indicating that the secretary's incorrect, or even arbitrary, determination that no EIR is required is a violation, and the determination is not itself damage to the environment. Moreover, other statutory language and case law suggest that the legislature intended only private persons proposing projects to be subject to injunctive relief for damage to the environment. Contrary to plaintiffs' contentions, sound environmental policy does not mandate judicial review. Sound environmental policy does not permit environmental concerns to exclude all other legitimate state concerns, and a policy that places the EIR decision in the hands of a disinterested and experienced public official cannot be characterized as unsound.

A dissent would hold that MEPA's entire statutory framework indicates that the secretary's EIR determination is reviewable. MEPA's statute of limitations for actions challenging the secretary's EIR determinations provides that actions may be brought after the issuance of a permit. This provision makes no sense if challenges to the secretary's negative EIR determinations are not allowed, since a project proponent that already has submitted an EIR has no reason to challenge the secretary's determination. Moreover, the section calls for notice of actions that allege that there has been "an improper determination [of] whether a project requires" an EIR. Other MEPA provisions do not reveal a legislative intent to prohibit judicial review of EIR determinations, and the majority's conclusion ignores the history of judicial review of such determinations and the strong legal presumption in favor of judicial review of administrative decisions. The dissent would also hold that an improper determination that a project does not require an EIR constitutes damage to the environment and a violation of environmental law.

Counsel for Plaintiffs
Gregor I. McGregor
McGregor, Shea & Doliner, P.C.
27 School St., Suite 300, Boston MA 02108
(617) 227-7289

Cynthia L. Amara
Dicara, Selig, Sawyer & Holt
3 Center Plaza, Boston MA 02108
(617) 523-1800

Counsel for Defendant
Stephen C. Karnas, Ass't Attorney General
Environmental Protection Division
One Ashburton Place, 19th Fl., Boston MA 02108
(617) 727-3688

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH, and O'CONNOR, JJ.