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Recent Developments in Environmental Permitting Litigation

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03.02.2011 | Advisory

There were many significant environmental permitting cases decided in the Massachusetts courts in 2010 that have implications for landowners, developers, and various industries. The cases varied from dealing with procedural issues such as standing and administrative record review, to focusing on substantive tidelands, wetlands, and wind farm permitting concerns.

M.G.L. Ch. 91/Tidelands. Two cases from the Massachusetts Supreme Judicial Court (“SJC”) dealt with the public’s rights in tidelands. In Moot v. Department of Environmental Protection, 456 Mass. 309 (2010), the SJC held that legislation exempting landlocked tidelands from review under Chapter 91 (the waterways licensing statute) was a valid exercise of legislative authority, exempting owners of landlocked tidelands from the Chapter 91 licensing process. In a case dealing with the public’s rights in the use of tidelands on private property, the SJC held that the public’s rights could not be extinguished through the land registration process, even when the Certificates of Title were issued without reservation of the public’s tideland rights, since such rights may only be extinguished by an act of the Legislature. Arno v. Commonwealth, 457 Mass. 434 (2010).

Statute of Limitations. In a case that clarified that law governing appeals commenced under the Massachusetts Environmental Policy Act, M.G.L. Ch. 30, §§ 61-62H (“MEPA”), the SJC held that the provision of MEPA that requires such appeals to be commenced within thirty days following the first issuance of a permit refers at least to the first permit issued among those listed in the Final Environmental Impact Report. Town of Canton v. Commissioner of Massachusetts Highway Department, 455 Mass. 783 (2010). The holding of this case necessarily requires future opponents of a FEIR to be vigilant in their due diligence regarding what permits and approvals the applicant is seeking, and their status, so as not to miss the appeal window.

Wind Farm Litigation. Wind farms continue to be a topic of litigation in Massachusetts, and the SJC issued an important decision for the Cape Wind development in Nantucket Sound this year. In Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, 457 Mass. 663 (2010), the SJC affirmed the Energy Facilities Siting Board’s (“EFSB”) issuance of a certificate of environmental impact and public interest under M.G.L. Ch. 164, § 69K to allow the construction of underground cables to run to the wind farm. In its decision, the SJC confirmed EFSB’s authority to stand in the shoes of all state and local permitting authorities, including, significantly, the Cape Cod Commission and the Massachusetts Department of Environmental Protection.

United States Supreme Court. Among the notable U.S. Supreme Court cases decided in 2010 was Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010). The Supreme Court held that a statute that effectively limited waterfront property owners’ littoral rights was consistent with common law and gave the State of Florida the power to take title to land added to the beachfront by avulsion. Therefore it was not an unconstitutional taking of the petitioner’s littoral rights. More significantly, the decision also included discussion by the Justices as to whether the concept of a “judicial taking” exists, and whether a court’s decision indicating that a once-established property right no longer exists results in an unconstitutional taking of property by the court. The Justices did not resolve the issue, but the opinion has triggered much discussion about whether there can ever be a “judicial taking.”

For summaries of the cases referenced above, and many other significant cases, please click here.

This advisory was prepared by Mary K. Ryan, member of the Land Use, Permitting and Development practice group at Nutter McClennen & Fish LLP. For more information, please contact Mary or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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