Conservation Law Foundation to the Rescue?

Help is on the way for beleaguered environmental enforcement agencies that have experienced severe budget cuts over the past few years.  As reported here, the budgetary cuts at MassDEP have been especially deep.  The Conservation Law Foundation (CLF) has stepped into the breach by suing businesses that CLF alleges are causing releases of pollution into the waters of the Commonwealth.  Using a citizen's enforcement provision found in the federal Clean Water Act, CLF recently sued five scrap metal businesses with facilities in southeastern Massachusetts. This isn't the first time CLF has sued alleged polluters in federal court.  Last year, CLF sued several businesses located near the Mystic River - those cases are in the process of being resolved.  Judging from MassDEP's refusal to comment on the CLF actions, it's not clear whether CLF's "help" is appreciated.    

If Not You, Then Who? Appeals Court Addresses Who Is Responsible for Protecting Wetlands

The Appeals Court's recent decision in Conservation Commission of Brockton v. Department of Environmental Protection presents a relatively rare instance where local and state regulators disagree about the administration of a statute under which they both have responsibilities.  The statute is the Wetlands Protection Act (WPA).power plant  Under the WPA, a local conservation commission is the initial permitting authority, subject to the superseding authority of the state Department of Environmental Protection (DEP). 

The case concerns an application by Brockton Power Company, LLC (Brockton Power) to build a 350-megawatt power plant within 100 feet of bordering vegetated wetlands on the Salisbury Plain River.  As part of its operation, Brockton Power will purchase 1.9 million gallons per day (gpd) of treated effluent from the Brockton Advanced Wastewater Reclamation Facility (Brockton Water).  If not sold to Brockton Power, this effluent would be discharged to the river (as it is presently) pursuant to a surface water discharge permit issued jointly by DEP and the U.S. Environmental Protection Agency.  If sold to Brockton Power, only 0.3 million gpd will be returned to the river.  The remaining 1.6 million gpd would be dispersed to the air as steam.  As noted by the Appeals Court, the loss of 1.6 million gpd of clean effluent discharge to the river “is a matter of potential consequence.”

Brockton Power filed an application for a wetlands permit with the Brockton Conservation Commission, but only because the plant would be built within the so-called buffer zone that extends 100 feet from the wetlands. The application did not address the purchase of treated effluent from Brockton Water or the impact on the river of reducing the effluent discharge by 1.6 million gpd.  The Conservation Commission denied the application. The reasons for denial included Brockton Power's failure to address this impact. 

Brockton Power obtained a superseding order of conditions from DEP which overturned the Commission’s decision.  DEP reasoned that (a) the use of effluent was not an alteration of a wetland if Brockton Water stayed within the effluent limits of its discharge permit; and (b) Brockton Water, not Brockton Power, was responsible for the impact (if any) of reducing effluent discharge by 1.6 million.  DEP’s adjudicatory branch agreed, as did the Superior Court and the Appeals Court.  The question was whether the purchase of effluent by Brockton Power was “work” in, or “alteration”  of, a wetland within the meaning of the WPA.  DEP and the courts responded by determining that, insofar as there is an alteration, the supplier of the effluent (Brockton Water) and not the purchaser (Brockton Power) is responsible.

On one level, this makes sense.  Brockton Water is the entity deciding to divert 1.9 million gpd of permitted discharge to Brockton Power.  On another level, however, the case is baffling.  For one thing, neither the Appeals Court nor DEP accounts for the 0.3 million gpd that Brockton Power will discharge into the river after buying 1.9 million gpd from Brockton Water.  This, in and of itself, is a potential direct alteration of wetlands that may be enough to force Brockton Power to consider all of the effects of its use of the 1.9 million gpd it gets from Brockton Water.  Likewise, it’s reasonable to inquire whether some portion of the 1.6 million gpd dispersed as steam will find its way directly back into the river (and if so, what if any potential contaminants are in the steam).  The decision that Brockton Water – not Brockton Power – is fully responsible for all impacts arising from this purchase seems too simple an answer to the complex questions raised.

Land Registration System Takes Another Hit

Theoretically, owners of registered land are entitled to rely on the information contained in their certificates of title.  To the chagrin of many, however, that is no longer the case.  In its decision this week in Williams Bros. Inc. of Marshfield v. Peck (pdf), the Appeals Court affirmed a Land Court ruling that an appurtenant easement is extinguished when the dominant and servient estates are merged (however briefly), and such a common-law extinguishment trumps the conclusiveness otherwise afforded to a registered title.  Specifically, the Appeals Court held that an easement over non-registered land that benefits registered land is terminated when the two parcels come into common ownership.  This is the result even if the certificate of title for the registered land lists the easement as an appurtenant right, and even if the parcels are no longer commonly owned.

The Appeals Court found two points significant.  First, “the protections of the registration system primarily are designed to protect the certificate holder from encumbrances on the registered parcel.”  Second, and more importantly, the land registration statute specifically calls out those instances “when land registration bars changes to title by certain common-law mechanisms, such as adverse possession, implication, or necessity.”  The Legislature chose not to include the extinguishment by merger of easements in its list of exceptions.  The bottom line is that a purchaser of registered land who is relying on appurtenant easement rights has the burden of conducting a thorough title search to ensure that those rights still exist.

New Roxbury Project Sure Beats a Highway

Tremont Crossing, a project that recently filed for approval from the Boston Redevelopment Authority (BRA), is a $300 million mixed useTremont Crossing development slated for construction on 8 acres of land on Tremont Street in Roxbury.  The project filing follows the groundbreaking of the Dudley Municipal Center and is proposed for a long-neglected but strategically located parcel that is an an important piece of the long-planned renaissance for the neighborhood.  Besides being a transit-oriented development along the Orange Line, the project fills in land along the infamous Southwest Corridor that was once targeted for a cross-city highway that would have torn apart several neighborhoods, like the old Central Artery once did.

Tremont Crossing's mix of uses will include approximately 500,000 square feet of large retail, which may also include entertainment and recreational uses, 50,000 square feet of smaller shops and boutiques fronting Tremont Street, 200,000 square feet of office space, 240 units of multi-family residential, and 58,000 square feet of cultural facilities that primarily will house a new museum for the National Center for Afro-American Artists. The development will also include a large public plaza and a multi-level, 1700-space parking structure that will serve the project, the adjacent Whittier Street Health Center, and the new Boston Public Schools Headquarters to be located at the Dudley Municipal Center.

In keeping with the BRA's focus on developing lively streetscapes open to the public, the museum and cultural space will be the centerpiece of this development, and the public plaza will include sculptures and outdoor seating – a stunning departure for vacant land that was once to be part of a neighborhood-killing highway. 

 

Massachusetts Climate Change Goal in Jeopardy?

With the signing into law of the 2008 Global Warming Solutions Act four years ago, Massachusetts launched what is arguably the nation's most aggressive program to reduce greenhouse gas (GHG)earth emissions.  The cornerstone of the Act is a mandate that by 2020 the state's GHG emissions be reduced 25% from 1990 levels.  MassInc recently released a comprehensive report warning that this reduction goal may be slipping away.

According to the report, one area that is critical to meeting the GHG emission goal is getting cars off the road, especially single-occupancy vehicles.  Although last year saw public transportation ridership at its highest level ever, the report states that more needs to be done in that area.  Another important GHG emission-reducing activity seen as in danger is the proposed extension into southern New England of power transmission lines carrying hydroelectric power from Canada.  Opposition to the extension, as well as financial and permitting hurdles, place the extension at risk.  This is no small matter, since the use of hydroelectric power accounts for more than one-quarter of the targeted 25% GHG emissions reduction. 

Despite the report, state officials are confident that the 25% reduction goal can be met in the next eight years.  Two bright spots are increased energy efficiency and the closing of one of the state's major coal-fired power stations.  As the state strives to reach the reduction goal, look for a more aggressive stance by state regulators in permitting development projects, such as requiring adherence to stringent LEED standards, promotion of public transportation, tighter controls on parking, and more reliance on renewable energy sources.           

Land Court Rules Are Now Available In E-Book Format, Free

Good news for Massachusetts real estate lawyers who use a Kindle, Nook or other e-reader: the Massachusetts Trial Court Libraries has announced the availability – at no charge – of an e-book containing the Land Court's Rules, Standing Orders, Manual of Instructions for the Survey of Lands and the Preparation of Plans, and Guidelines on Registered Land.  This handy resource can be downloaded here.

Appeals Court Panel Affirms Ruling That City Must Issue Special Permit

In a recent "unpublished decision" in A.L. Prime Energy Consultant, Inc. v. City Council of Woburn (pdf), a panel of the Appeals Court affirmed a Land Court ruling that the Woburn City Council's denial of the plaintiff's application for a special permit to build a gas station and convenience store was "unreasonable, whimsical, capricious or arbitrary."  In denying the permit, the council had cited potential traffic tie-ups and the "worsen[ing] of an already bad [traffic] situation."  The Land Court found that the council's concerns weren't supported by the evidence, particularly where they were directly contradicted by the plaintiff's expert evidence.  On appeal, the City Council argued that its evaluation of the seriousness of the traffic problem should control, but the Appeals Court panel disagreed, noting that such deference is proper only where reasonable minds could differ as to the seriousness of the problem.  Because the council presented no evidence contradicting the Land Court's finding that traffic conditions post-construction would be no worse, and might even be better, the panel affirmed the Land Court's ruling, as well as its order that the City Council must issue the special permit.  The panel found that it was error, however, for the Land Court to have imposed its own conditions on the to-be-issued permit.  The panel indicated that, on remand, the City Council is free to determine appropriate permit conditions.

SJC Tweaks Appeals Court's Standing Analysis

In November, 2010, we reported on the Appeals Court’s decision in 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline (pdf).  The court found that the defendant’s effort to rebut the plaintiff abutter’s presumption of standing – an effort that was based solely on the abutter’s deposition testimony, in which he offered his own unsupported opinions that he had beenNo Standing harmed – was not the type of "affirmative evidence" required to rebut the presumption.  In other words, in the Appeals Court's view, the defendant in a zoning appeal couldn't rely on the abutter's own statements to rebut the presumption.  The court also upheld the Land Court's decision concerning the application of "infectious invalidity."

The Supreme Judicial Court (SJC) granted the defendant’s application for further appellate review, which was limited to the standing issue.  While agreeing with the result of the Appeals Court’s decision, the SJC wasn't happy with the path the Appeals Court took to reach that result.  The Appeals Court’s decision suggests that a defendant can never rely on the abutter’s deposition testimony to rebut the presumptive of standing.  The SJC disagreed, and in a March 20, 2012 decision (pdf), found that in certain circumstances, the defendant may use an abutter’s deposition testimony to rebut the presumption.

As the SJC notes, “where a plaintiff acknowledges during discovery a lack of substantive evidence to establish a legally cognizable injury, a defendant may rely on those admissions to rebut the plaintiff’s presumption of standing . . . ."  The SJC cites its own 2006 decision in Standerwick v. Zoning Bd. of Appeals of Andover (pdf) on this point.  In 81 Spooner Road, unlike in Standerwick, the abutters' deposition testimony did identify a legally cognizable injury:  violation of density-related provisions of the zoning bylaw.  Thus, that deposition testimony didn't constitute evidence “warranting a finding contrary to the presumed fact” of aggrievement, and the defendant – in the SJC's view – failed to rebut the presumption of standing.

More Mortgage Musings from Federal Court

A couple of interesting foreclosure-related orders from the U.S. District Court for the District of Massachusetts, as reported in this week's Massachusetts Lawyers Weekly (subscription required).

In Morse v. Residential Credit Solutions, Inc., Judge Rya W. Zobel denied the plaintiff's motion to remand the case to the Massachusetts Land Court.  Judge Zobel ruled that, although the plaintiff's complaint sought only equitable relief – a declaration that the plaintiff's mortgage was unenforceable, and the expungement of an assignment of that mortgage from MERS to the defendant – "the fair market value of the property to be foreclosed upon is an acceptable measure of the amount in controversy for purposes of diversity jurisdiction."  Because there was evidence suggesting that the fair market value of the property is over $350,000, and that the amount owed on the plaintiff's loan is over $225,000, Judge Zobel found that the amount in controversy far exceeds the jurisdictional threshold of $75,000, so the case can stay in federal court.

In Akar v. Federal National Mortgage Association, Judge Nathaniel M. Gorton declined, in part, to accept Magistrate Judge Judith Gail Dein's recommended disposition of motions for judgment on the pleadings filed by defendants Fannie Mae and Wells Fargo, N.A.  Judge Gorton differed with Magistrate Judge Dein in just one respect:  he found the plaintiffs' allegations insufficient to make out a claim against Wells Fargo for intentional infliction of emotional distress.  Accepting the plaintiffs' assertion that Wells Fargo foreclosed on their property after repeatedly assuring them that the sale would be postponed while their loan modification request was pending, Judge Gorton ruled that, while this conduct might support the plaintiffs' claims for bad faith, misrepresentation, and violation of M.G.L. c. 93A (the state Consumer Protection Act), it does not amount to conduct that is "extreme and outrageous beyond all bounds of decency," or "utterly intolerable in a civilized community," as required by Massachusetts law.  Like beauty, apparently, outrageousness is in the eye of the beholder.  

More Thoughts on Sackett v. EPA

In a rare unanimous decision issued on March 21, the U.S. Supreme Court ruled that property owners and other regulated parties can challenge administrative compliance orders issued by the Environmental Protection Agency (EPA) under the federal Clean Water Act (CWA).Priest Lake

The case involves the attempt a pair of Idaho landowners to challenge an EPA compliance order requiring them to take remedial action in response to alleged wetlands violations or face civil penalties of $75,000 per day.  When the EPA refused to hold an agency hearing on the matter, the Sacketts sued.  The EPA argued that judicial review of the compliance order was unavailable, and that the Sacketts had to wait until the agency filed a civil enforcement action against them to contest the order.  The 9th Circuit Court of Appeals agreed with the EPA, and the Supreme Court has now reversed.  For more background, see our prior commentary here.

The Court, in an opinion written by Justice Antonin Scalia, ruled that an administrative compliance order can be challenged as a final agency action under the federal Administrative Procedure Act (APA) because the order is binding on the recipient, it represents the conclusion of the agency’s decision-making process on the issue, and the recipient has no other adequate remedy in a court.  The Court further noted that the CWA doesn't expressly preclude judicial review under the APA.

The Sackett decision has aroused a fair amount of interest in the mainstream press.  A few of the many stories that have appeared over the past 10 days are here (CNN), here (L.A. Times) and here (HuffPo). 

While certainly a victory for the regulated community, the Court’s decision is, in fact, rather narrow.  The decision was based solely on the language in the CWA and the intent of the APA, and did not reach the due process issues inherent in the Sacketts’ case.   As Justice Samuel Alito pointed out in his concurring opinion, given the uncertainty about jurisdiction under the CWA, and in light of the draconian penalties imposed for the type of violation alleged in this case, “the Court’s decision provides a modest measure of relief”, and, in reality, most property owners still will need to deal with EPA in the CWA enforcement context.

However, as noted in our previous post, the EPA's loss in Sackett could curtail pre-enforcement review under a variety of federal environmental statutes.   In its decision, the Supreme Court specifically noted that "[n]othing in the [CWA] expressly precludes judicial review under the APA or otherwise.” (emphasis in original).  The Court’s reliance on this fact seems to signal that the EPA is no longer able to rely on compliance orders as a streamlined means of enforcing  any environmental statute that does not contain an express bar to pre-enforcement review.   Thus, while the decision obviously impacts enforcement under the CWA, other statutes, such as the Clean Air Act and the Resource Conservation and Recovery Act (RCRA), which similarly contain no express bar, are also likely to be affected.  The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which does contain an explicit prohibition on pre-enforcement review, should be unaffected by Sackett.

As for the Sacketts themselves, it remains unclear whether this procedural victory ultimately will clear the way for their proposed residence on Idaho's Priest Lake (pictured above).  The Court made clear that it was expressing no opinion as to whether the EPA had properly asserted jurisdiction over the Sacketts’ land, and Justice Ruth Bader Ginsberg wrote separately to underscore this point.