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Monday, May 22, 2017

Standing for Environmental Appeals: One Size Does Not Fit All

Luke H. Leger

Real estate lawyers pay close attention to establishing standing in agency hearings and court. Standing is the first hurdle and failing is fatal. This is especially so in environmental cases.
It is tempting to think there must be one universal rule, convenient to memorize, on who has standing
to appeal environmental decisions within state agencies and then to court. In fact, there are similarities but subtle differences in the rules among Massachusetts agencies, even within MassDEP for its various kinds of permits and enforcement.
Consider the general statutory framework for administrative appeals of state agency decisions and then judicial review of final agency actions. The Administrative Procedures Act, G.L. c. 30A, §10 governs adjudicatory appeals generally and also allows persons substantially and specifically affected by appeals to intervene in them. Section 10A, the “Ten Person Right to Intervene,” allows a group of ten residents to intervene in adjudicatory proceedings where damage to the environment is or may be an issue. Section 14 authorizes a person aggrieved by a final agency decision to appeal to court.
Often confused with the Ten Person Right to Intervene, G.L. c. 214, § 7A is the so-called “Ten Citizen Suit Statute.” It gives any ten people domiciled in the Commonwealth legal standing to pursue a civil action in Superior Court to prevent environmental damage that is occurring or imminent. Note the different wording in these two laws, and the legal import (e.g. residents versus domiciliaries). This amounts to statutory standing to enforce state and local environmental laws and regulations on the books, not a generalized right to a clean environment.
Now we examine the state Wetlands Protections Act (WPA), Clean Waters Act (CWA), and G.L. c. 91 Waterways and Tidelands laws. All three are administered by MassDEP to protect wetlands, water resources and related rights. MassDEP regulations governing appeals under these programs differ in important ways with respect to standing.
A quick reading of these rules gives a false sense of uniformity. The universe of persons who may obtain an adjudicatory hearing for a WPA Order of Conditions or action, CWA Water Quality Certification (WQC), or Chapter 91 License generally includes some or all of the following people: applicants, property owners, persons aggrieved, ten resident groups, and certain governmental or private organizations. The regulations diverge in their specifics.
For example: who may request an adjudicatory hearing as of right. The WPA rules give applicants, property owners, and local conservation commissions the right to this trial-type hearing. The CWA rules, in contrast, list applicants and property owners as having this right. In greater contrast, the Chapter 91 rules say only an applicant can appeal, either one which has a demonstrated property right in the affected lands, or which is a public agency.
All three regulatory schemes grant standing to “aggrieved persons.” They must demonstrate that, due to an act or failure to act by MassDEP, they may suffer an injury in fact, which is different in type or magnitude from that suffered by the general public, and which is within the scope of the interests identified in the governing statute and regulations. This is classic standing.
The WPA rules add an extra layer, whereby an aggrieved person must have participated in writing in the permit proceedings. The CWA rules, with another twist, confer standing on aggrieved persons who have submitted written comments during the public comment period (unless the appeal is based upon new substantive issues arising from changes in the scope or impact of a project which were not apparent from the public notice). The Chapter 91 rules give standing to aggrieved persons so long as they participated in writing during the public comment period and can demonstrate that, as a result of issuance of License, they may suffer an injury in fact which is within the scope of the interests protected by Chapter 91 and G.L. c. 21A.

There are some liberal standing rights for citizen groups, but they read differently. Under the WPA, ten residents of the municipality where the project is proposed may request an adjudicatory hearing, so long as at least one member of the group has participated in writing during the prior proceedings. The CWA provides standing for “ten persons of the Commonwealth pursuant to G.L. c. 30A” so long as at least one member of the group has submitted written comments during the public comment period. Chapter 91 confers standing upon “ten residents of the Commonwealth, pursuant to G.L. c. 30A, § 10A” provided five members reside in the municipality where the licensed activity is located, all members of the group have submitted comments during the public comment period, and each member of the group files an affidavit stating her intent to be part of the group and represented by its authorized representative.

Standing also is available to government officials, agencies or environmental organizations. Under the CWA, governmental or private environmental organizations which have submitted written comments during the public comment period have standing (again, the prior written participation requirement is waived for appeals based upon new substantive issues arising from changes in the scope or impact of a project which were not apparent from the public notice). Chapter 91 licenses may be challenged by a municipal official in the affected city or town who has previously submitted written comments during the public comment period and, in certain instances, the state Office of Coastal Zone Management and Department of Conservation and Recreation.

These details matter. MassDEP’s Presiding Officers routinely undertake a close analysis of standing. Expect this. One recent MassDEP Final Decision concluded that a ten-person group must allege environmental harm to enjoy standing to appeal a Chapter 91 License, although many interests protected by Chapter 91 are not per se “environmental” (e.g., navigation, water access, and livelihood interests). In The Matter of Webster Ventures, LLC, Docket No. 2015-014, Final Decision (June 15, 2016).

In another recent Final Decision, MassDEP found that a petitioner lacked standing to challenge a WQC as a “person aggrieved,” due to his failure to submit written comments, yet granted him standing as being a property owner. In the Matter of Tennessee Gas Pipeline Co., LLC, Docket No. 2016-20, Final Decision (March 27, 2017).

Ultimately, appealing a final agency action to court requires plaintiffs to meet the traditional standing test of injury-in-fact to an interest cognizable by law or rule. This means proving claims of particularized harm or prejudice to substantial individual rights.

Do not assume that a party before an agency under state environmental laws has automatic standing to challenge the resulting agency decision in court. This was driven home by the SJC in Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 559 (2012).

Plaintiffs with standing as a ten-person group for an adjudicatory hearing at MassDEP, therefore, had better be ready to individually establish “old-fashioned” standing in court.

Careful practitioners never take standing for granted. Read the statute and agency regulations for the pleading and proof requirements, consult the court cases and agency decisions, and leave time to satisfy yourself that the petitioner(s) have (or lack) the requisite standing. And remember that, while alleging personalized harm may be unnecessary to establish statutory or rule-based standing before the agency below, it is always necessary to get your day in court.

Luke Legere is a partner with McGregor & Legere, P.C. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting. A regular contributor to REBA News, Luke can be contacted by email at

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