Loper Bright and Massachusetts Environmental Law: Navigating the Boundaries of Federal and State Authority

While the SCOTUS’s Loper Bright Enterprises et al. (Loper) decision reversing Chevron was a win for those seeking to rein in the administrative state at the federal level, it does not sound the death knell for Massachusetts state administrative agency decisions or environmental protections. Because the majority premised Loper on its interpretation of the federal Administrative Procedures Act (5 USC § 706), it should not affect Massachusetts court review of Massachusetts state agency decisions which occur under the significantly different Massachusetts Administrative Procedures Act (M.G.L. c. 30A, § 14).

Depending upon their perspective, pundits and commentators either hail Loper as another stride on the path back to the founders’ vision of separation of powers or as another example of the conservative majority’s quest to dismantle long-fought-for environmental, public health, safety, and other beneficent regulations, programs, and protections. From the author’s perspective, Loper does neither, at least for environmental law here in Massachusetts.

Most federal environmental laws provide for the delegation of authority to the states. For example, the Resource Conservation and Recovery Act regulates hazardous waste management and requires the US EPA to delegate authority to state agencies that adopt programs at least as stringent as the federal program. The same holds true for the Clean Air Act and Clean Water Act. In turn, years ago, the Massachusetts Department of Environmental Protection (“MassDEP”) adopted regulatory programs to administer hazardous waste, clean water, clean air, and other federal acts and the EPA has officially delegated substantial portions of its authority under those programs to the MassDEP. As a result, the MassDEP is the primary regulatory body for most environmental media and impacts within Massachusetts, with little direct regulation by the US EPA.

In the small segment of environmental matters where the EPA has not delegated authority to Massachusetts, for example, the NPDES permitting program and certain aspects of the Clean Air Act permitting program, the EPA retains primary jurisdiction, and federal court review of its decisions will fall within the ambit of Loper. However, in most environmental matters, the MassDEP will be the decision maker, and the courts will continue to review those decisions under the deferential standard contained in Section 14 of the Massachusetts Administrative Procedures Act, M.G.L. c. 30A. See Souza v. Registry of Motor Vehicles, 462 Mass. 227 (2012) (quoting Providence & Worcester R.R. v. Energy Facilities Siting Bd., 453 Mass. 135, 141 (2009)) (“In general, [the Supreme Judicial Court] give[s] ‘substantial deference’ to an agency’s interpretation of those statutes which it is charged with enforcing.”)

This does not gainsay the US EPA’s role in shaping Massachusetts environmental policy, because the EPA decides if Massachusetts’ programs deserve EPA delegation. Thus, MassDEP will continue to hew closely to EPA policy and guidance in designing and implementing its programs. However, because all the statutes allow MassDEP to adopt more stringent standards and MassDEP tends to do so, the Loper decision should not result in the scaling back of environmental protections in Massachusetts or a judicial attack on MassDEP’s decision-making.