In Town of Boxford v. Massachusetts Highway Department, the Supreme Judicial Court (SJC) upheld the Superior Court’s denial of a motion to dismiss filed by the defendant Massachusetts Highway Department (MHD).  MHD sought dismissal of the Town of Boxford’s complaint claiming a right to regulate a salt storage facility operated by MHD.  In remanding the matter for trial, the SJC confirmed that state agencies such as MHD are subject to local regulation as long as the regulations (1) don’t impair the agency’s ability to perform an essential governmental function, and (2) have only a negligible effect on operations. 

The facts appear to support the town’s assertion of authority.  During its operation of the salt storage facility, MHD released salt which contaminated private drinking water wells.  In an effort to address the contamination, MHD installed new, shallow wells at the affected properties without first obtaining permits from the Boxford Board of Health, as required under the Boxford Municipal Code and the Board of Health’s regulations.  The Board of Health issued a cease and desist order demanding compliance with its regulations.  MHD ignored the order.

The Board of Health responded with a four-count complaint against MHD and the Department of Environmental Protection (DEP).  Count one seeks a preliminary injunction ordering MHD to cease and desist from storing salt and creating a “public health nuisance.”  Count two seeks an injunction under a Massachusetts statute, M.G.L. c. 214, § 7A, that seeks to prevent imminent harm to the environment.  Count three seeks an injunction ordering MHD to obtain permits for the new wells under the town’s regulations.  Count four seeks mandamus relief against DEP in the form of an order that DEP take enforcement action against MHD. 

MHD moved to dismiss, asserting defenses of lack of subject matter jurisdiction and sovereign immunity.  The Superior Court denied MHD’s motion, and MHD took an interlocutory appeal.  The SJC transferred the appeal from the Appeals Court to itself, which usually means the court has something important to say.  

The SJC affirmed the Superior Court’s denial of MHD’s motion to dismiss as to counts one, two and three, and remanded the case for trial.  The court noted that, subject to the limits of the “essential governmental function doctrine,” a state agency such as MHD is not immune from local regulations.  However, at trial, the town will have to prove that enforcement of its regulations will not unduly interfere with MHD’s ability to perform an essential governmental function.  The SJC reversed the Superior Court’s denial of the motion to dismiss as to count four, holding that mandamus is not available to compel DEP to perform what the court found is a discretionary act.

Why DEP looks the other way when environmental harm is caused by another state agency is a question for another day.