Balancing Local Control and State Mandates: The Implications of the MBTA Communities Act Ruling
The state’s highest court has affirmed the Legislature’s power to force towns to adopt denser, transit-friendly zoning. In 2021, the Massachusetts Bay Transportation Authority (MBTA) Communities Act (G. L. c. 40A, § 3A) amended the Zoning Act to require that 177 communities near public transit allow multi-family development as...
Unwrapping Maine's Gift to the Environment: A New Packaging Stewardship Program Set to Launch in 2026
Beginning in May of 2026, [1] owners of brands selling packaged products and importers of foreign-produced packaged products sold in Maine will be required to adhere to Maine’s Stewardship Program for Packaging. [2] Beginning six months after the program launch, fees will be due, and six months after that...
Maine Governor Mills To Tap Heather Sanborn of Portland as Next Public Advocate
On December 5, 2024, Governor Janet Mills announced her intent to nominate former state senator and representative Heather Sanborn to serve as the next Public Advocate of the State of Maine. Sanborn, of Portland, is the co-founder and director of Business Operations at Rising Tide Brewing in Portland, which...
Governor Healey Enacts Transformative Clean Energy and Economic Development Laws: Streamlined Permitting, Equity Protections, and Extended Project Approvals
On November 20, 2024, Governor Maura Healey signed the Massachusetts Leads Act, engrossing House Bill 5100 (the “MA Leads Act”), which, among many funding provisions, contains two changes that will significantly benefit project developers. Not to be outdone, on November 21, the Governor signed Senate Bill 2967 , An...
Administrative Penalties Under Scrutiny: Jarkesy’s Potential Impact on EPA and Massachusetts Enforcement
The United States Environmental Protection Agency (“EPA”) often uses civil penalties to punish environmental violators. The EPA can either pursue a penalty through its internal administrative process or have the Justice Department file suit to have a court impose a penalty. [1] Congress has authorized the EPA to pursue...
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...
Navigating Maine's Renewable Energy Rate Revisions: Key Insights on PUC Docket No. 2024-00137 and 2024-00149
The Maine PUC has recently opened two related dockets that will significantly impact the renewable energy industry. The first, Docket No. 2024-00137, is a follow-on docket to the PUC’s Investigation into the Stranded Cost Rate Design, which increased rates for large generator ratepayers from 700% to 1,700%. The PUC...
Better Communication Among Regulators and the Regulated Can Improve Outcomes for Wastewater Permittees
As our understanding of the environment and anthropogenic impact grows, protection efforts increasingly spawn regulation. Media coverage of perceived harms to health and the environment and well-funded advocacy by conservation organizations usually eclipse the perspective of the regulated community. The disconnect between the regulators and the regulated is especially...
Massachusetts Provides Extra Protection to Environmental Justice Communities from Air Pollution
In a groundbreaking move, effective July 1, the Massachusetts Department of Environmental Protection will tighten the permitting requirement for certain existing and new sources of air pollution located near an environmental justice population . Environmental justice populations are those with elevated numbers of minorities, non-English speakers, or low-income households...
Massachusetts’ Mandated Multi-Family Zoning Moves Forward, But Some Towns Resist
Town Meetings across Massachusetts are voting on zoning bylaws that would encourage multi-family housing. According to Section 3A of the Zoning Act, passed in 2021, 177 cities and towns near MBTA transit must ensure that their zoning codes allow multi-family development “as of right” without a discretionary process such...
The Plastics Problem In Massachusetts Part II: Plastic Bags
In my October 2023 blog post about “ The Plastics Problem in Massachusetts ,” I noted that environmental and some mainstream groups have been attacking traditional recycling of plastics in an effort to stop the manufacture of new single-use plastics. While my opinion remains that the Massachusetts recycling system...
EPA Issues Final National Drinking Water Standard for Six PFAS Compounds
On April 10, 2024, after receiving nearly 122,000 comments on the proposed rule, the United States Environmental Protection Agency (“EPA”) announced its final National Primary Drinking Water Regulation (“NPDWR”) for six perfluoroalkyl and polyfluoroalkyl (“PFAS”) compounds. EPA’s announcement comes in advance of final publication of the rule, which is...
Understanding 91’s Amnesty Program
Chapter 91 of the Massachusetts General Laws, otherwise known as the Public Waterfront Act, is the primary law protecting the public’s rights to use and access the coastal tidelands of the Commonwealth. First adopted in 1866, the law has roots extending back to ancient Rome, where the Justinian code...
The Gathering PFAS Storm
When working with my colleagues on real estate and corporate business transactions, I feel like I can be a nay-sayer, bringing up the considerations of potential liability for PFAS-related releases during environmental due diligence. However, with the unsettled possibility of acquiring PFAS liability and the increase in class action...
Massachusetts’ Resiliency Push Continues with Proposed Waterways Rules
Last month, the Massachusetts Department of Environmental Protection (MassDEP) extended the comment period for amendments it proposed in December 2023 to the Massachusetts Waterways Regulation, 310 CMR 9.00. Peter Vetere recently wrote about proposed amendments to the Wetlands Protection Regulations and Stormwater Management Standards intended to address climate change...
AG’s Suit Against Town of Milton Shines a Spotlight on Housing Crisis
Last April, we reported that the Attorney General was set to enforce municipal compliance with denser, transit-friendly zoning requirements. Now that has come to pass. The recently commenced battle between the Town of Milton and the Attorney General’s office over the MBTA Communities Act illustrates the high degree of...
MassDEP Proposes Updates to Stormwater Management Standards
In addition to amending the Wetlands Protection Regulations to add performance standards for the Land Subject to Coastal Storm Flowage wetland resource area, MassDEP wants to update the Massachusetts Stormwater Management Standards as part of its efforts to promote climate resiliency. The Stormwater Management Standards are contained in Chapter...
Can Building Codes Ban Natural Gas After 9th Circuit Court Declines Rehearing?
The 9 th Circuit Court of Appeals’ refusal to rehear a pivotal gas appliance regulation decision has thrown a wrench into local efforts to reduce fossil fuel use. Last spring, in California Restaurant Association v. City of Berkeley , a three-judge panel of the 9 th Circuit found a...
The Persistent Problem of Waste
Massachusetts residents and businesses dispose of enough trash yearly to fill up about 31 Fenway Parks. Despite decades of government policies to reduce waste, we continue throwing away about six million tons of waste each year. Environmental groups advocate for “zero waste,” while pragmatists call for more and better...
MassDEP Proposes New Coastal Floodplain Standards to Improve Climate Resiliency
There has been a joke for some time now that whenever MassDEP proposes new regulations, they must have finally developed the performance standard for Land Subject to Coastal Storm Flowage (“LSCSF”). Well, the joke’s on us, folks: they’ve gone and done it. The long-awaited LSCSF performance standard is just...
Greening the Deal: Environmental Due Diligence for Corporate and Real Estate Transactions
An important understanding of any transaction, particularly in Massachusetts, is that the environmental laws generally impose status liability for releases of hazardous substances. Thus, by virtue of being an owner or operator at a property, regulators will use that “status” to impose cleanup obligations on the owner or operator...
Navigating Change: DEP proposes revisions to Maine Metallic Mineral Mining Rules and Administrative Procedures
On December 7, the Maine Board of Environmental Protection (BEP) voted to post to public comment amendments to two Department of Environmental (DEP) sets of rules. The first proposes changes to Chapter 200, Metallic Mineral Exploration, Advanced Exploration and Mining . The second proposes changes to Chapter 2, Processing...
Maine PUC Amends Small Generator Interconnection Procedures Rules (Chapter 324)
On November 3, 2023, the Maine Public Utilities Commission (the “Commission”) issued an Order adopting amendments to its Small Generator Interconnection Procedures Rule (Chapter 324). Background. Chapter 324 was last amended on December 21, 2021. See Maine Public Utilities Commission, Amendments to Small Generator Interconnection Procedures Rules (Chapter 324...
Unveiling the ResilientMass Plan
On Tuesday, November 28, 2023, Massachusetts released an updated version of the State Hazard Mitigation and Climate Adoption Plan, the “ ResilientMass Plan .” While the final Plan bears a strong imprint from the Healey Administration and its new cabinet-level Climate Chief, Melissa Hoffer, the project is the latest...
One Bad Apple Spoils the Whole Barrel: Do Not Mix a Potentially Contaminated Site With Other Assets
When considering the establishment of an estate or trust to hold title to real property, it is important to segregate potentially contaminated property from other assets Unfortunately, once title vests in an estate or trust of which a contaminated site is a part, the estate or trust becomes the...
A Toolkit for Evaluating Climate Change Impacts to Chapter 21E Sites Under the Amendments to the Massachusetts Contingency Plan
On September 1, 2023, MassDEP issued final amendments to the Massachusetts Contingency Plan (“MCP”), the regulations governing the cleanup of releases of hazardous material and oil spills at contaminated properties. The MCP amendments, which will take effect on March 1, 2024, will now require the consideration of foreseeable climate...
Maine Voters Reject “Pine Tree Power” Proposal
Last Tuesday, by a margin of 70% to 30%, Maine voters rejected Question 3, the highest profile issue on the Maine ballot this year. Question 3 was placed on the ballot earlier this year, and under the terms of a fifteen page bill behind the question, it proposed the...
Halloween Special: Biden Vetoes Congressional Threat to Endangered Listing of Local Bat
On September 26, in time for the most bat-friendly month of the year (Halloween, here we come!), President Biden vetoed a bill that would have lessened protections for the northern long-eared bat (NLEB). The bat’s population has been decimated by a fungal disease, white-nose syndrome , discovered in 2006...
EPA Signals PFAS is a Priority with New TSCA Disclosure Rule
As we have been reporting in this blog, regulators are increasing their focus on the latest group of “forever chemicals.” This month, the U.S. Environmental Protection Agency (“EPA”) published a final rule requiring manufacturers of perfluoroalkyl and polyfluoroalkyl substances (“PFAS”) to undertake a massive reporting effort. The rule (40...
The Basics of Stormwater Permitting in Massachusetts
After a summer of historic rainfall and flooding in Massachusetts, stormwater is on our minds. Stormwater is a major source of water pollution in the Commonwealth, and it is crucial that owners and operators of commercial and industrial facilities, land developers, and construction contractors understand the legal framework governing...
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