EPA Repeals Climate Endangerment Finding While U.S District Court Invalidates DOE Reasoning (Opinion)

 Abigail George

In an interesting coincidence, the U.S. District Court for the District of Massachusetts issued a ruling that the Department of Energy (DOE) violated federal law in issuing its

proposed rulemaking to repeal the Environmental Protection Agency’s (EPA) endangerment finding for greenhouse gases. Two weeks later, the Administration repealed the finding.

The case is Environmental Defense Fund, Inc. v. Wright (Young, J.) Judgment was entered on January 30 this year.  The administration repealed the endangerment finding on February 12.

The EPA’s endangerment finding for greenhouse gases had been issued in 2009, under the Obama Administration. The EPA at the time found that greenhouse gas emissions from motor vehicles contribute to air pollution, endangering the public health or welfare. Based upon this endangerment finding, the EPA promulgated a series of Clean Air Act (CAA) regulations on motor vehicle emission standards.

In July of 2025, the DOE had issued a report titled A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, finding that global warming estimates are overexaggerated. A five-member Climate Working Group created the report, its membership comprised of a physicist, an atmospheric scientist, a climatologist, a meteorologist, and an economics professor.

The report contradicted the scientific consensus that greenhouse gases significantly impact the environment. Denying the negative impacts of greenhouse gas emissions, the 151-page report found that increased atmospheric carbon promotes plant growth by “enhancing agricultural yields, and by neutralizing ocean alkalinity.”

Last August, citing the DOE report, the EPA promulgated Reconsideration of 2009 Endangerment Finding and Gas Vehicle Standards (90 FR 36288). This proposed rulemaking sought to repeal the 2009 endangerment finding, and its associated CAA regulations. Using the report as authority, EPA said that in light of “significant doubt” on the reliability of the 2009 endangerment finding, greenhouse gases cannot be regulated under the CAA.

The Environmental Defense Fund and Union of Concerned Scientists subsequently sued, seeking to disband the Climate Working Group, save the EPA’s endangerment finding, and compel disclosure requirements under the Federal Advisory Committee Act (FACA).

The complaint alleged that the Climate Working Group violated FACA by working “in secret,” “manufactur[ing] a basis to reject” the 2009 endangerment finding, and failing to provide “fairly balanced” viewpoints among its members. The suit lists as defendants DOE Secretary Christopher Wright; the DOE; EPA Administrator Lee Zeldin; the EPA; and the Climate Working Group.

In a four-page declaratory judgment ruling, Judge Young ruled that the Climate Working Group was subject to and failed to meet its requirements under FACA, granting plaintiffs’ requests for relief against DOE. The Court dismissed the EPA as a defendant, however, finding “no persuasive evidence of conduct violative of FACA” on its part.

In February 2026, President Trump announced that he was “officially terminating the so-called endangerment finding,” finalizing the proposed rule. Trump described the 2009 endangerment finding as “the basis for the Green New Scam” and having “nothing to do with public health.” Zeldin, standing alongside Trump, described the move as “the single largest act of deregulation in the history of the United States of America.”

Trump and Zeldin’s action eliminate the CAA’s ability to regulate the single largest source of greenhouse gases in the United States: transportation. The Environmental Defense Fund claims this unregulated pollution is likely to amount to 18 billion metric tons of additional emissions between now and 2055, resulting in as many as 58,000 premature deaths and 37 million asthma attacks.

The justification for these 18 billion metric tons is supposed benefits to the auto industry. “No longer will automakers be pressured to shift their fleets toward electric vehicles,” Zeldin stated. However, the benefit of reduced regulations has drawbacks for the auto industry. For one, the decisions disrupt the predictable, stable regulations which the industry relied upon, especially the growing electric vehicle industry. If this de-regulation effort stands, it may put U.S. automakers further behind a global market that is electrifying to meet demand.

Zeldin also justifies the move as a control on agency power, stating “we used a very simple metric: If Congress didn’t authorize it, EPA shouldn’t be doing it.” This sentiment echoes increasing skepticism to the administrative state by Republicans, the Trump administration, and the Supreme Court.

This action already is under threat. A coalition of public health groups (including the American Lung Association and the American Public Health Association) and Earthjustice have already threatened suit.  The Sierra Club is also expected to file suit. “You can’t just stand by and let the EPA trash its own authority because you’re scared of a potentially negative ruling,” said senior attorney Andres Restrepo. “I think that it’s a bigger risk to do nothing.”

 Beyond the well-established science, earlier courts had already established that the EPA is required to regulate greenhouse gas emissions. While lawsuits are pending and more expected, there are concerns about the likelihood of their success in the face of the Supreme Court and, even if meritorious, the damage that will be done in the meantime.

Abigail George is a Legal intern at McGregor Law Group in her third year at Boston University School of Law.  The opinions expressed herein are her own.

The Fundamentals of Ground Leasing

 

What Nicosia, et al. v. Burn LLC, et al. (2025) Means for Restaurant & Bar Owners

 Joshua M. Goldstein

Operating a restaurant, bar, event hall, or other business which utilizes a liquor license is hard enough without accidentally tripping over a clause in your lease that turns into a

legal disaster. The SJC’s recent decision in Nicosia, et al. v. Burn LLC, et al. (2025) is a good reminder that when it comes to liquor licenses, contract terms still matter and creative financing can come with some very sobering consequences.

How This All Started: This case arose out of a fairly common commercial setup and straight forward set of facts. N&M Trust VII (“Nicosia”) leased a commercial property in downtown Boston to Burn, LLC (“Burn”). As part of the lease agreement, Nicosia sold its liquor license associated with the property to Burn for the sum of One Dollar. The lease terms included an “anti-pledge” provision which prohibited Burn from pledging the liquor license as collateral for a loan, and provided that any pledge in violation of such provision constituted a default under the lease. In addition, at the end of the lease term, Burn was required to transfer the liquor license back to Nicosia for One Dollar.

Before the lease term expired or otherwise terminated, Burn pledged the liquor license to its principal, Brian Lesser, as collateral for a loan to Burn in the amount of $445,000. When Nicosia discovered this, it declared Burn in default of the lease, terminated the lease and demanded the return of the license.

Nicosia initiated the lawsuit and Burn challenged their claims, arguing that the lease’s “anti-pledge” provision is unenforceable as it violated public policy and M.G.L. c. 138 § 23, the statute which governs and expressly permits the pledge of liquor licenses.

The Court’s Holding: The court disagreed with Burn’s argument and upheld the “anti-pledge” provision as enforceable. The court reasoned that the clause did not violate public policy concerns as financing agreements among commercial sophisticated parties do not generally raise public policy concerns.

Further, the court distinguished this case from its decision in Beacon Hill Civic Ass’n v. Ristorante Toscano, Inc. (1996) where it found that a private agreement not to apply for a liquor license was unenforceable because it thwarted public participation. In the case of Nicosia, et al. v. Burn LLC, et al. (2025, the anti-pledge provision does not interfere with public participation but rather is only a limitation on the licensee’s ability to use the liquor license as collateral to secure financing.

 

No loopholes. No judicial sympathy for “but we needed financing.”

Why This Matters to Business Owners: Liquor licenses are often viewed as valuable assets and they can be to a business. However, Nicosia makes it clear that their value can be tightly controlled by contract.

Here are the key takeaways:

·       A Liquor License is Not Always “Your” Asset – Even if a license is technically in your business’s name, contractual restrictions can dramatically limit what you can do with it. If your lease says, “no pledging,” that means no pledging no matter whether the lender is a bank, a private investor, or your own business partner.

·       Courts Will Enforce Anti-Pledge Provisions – This decision confirms that Massachusetts courts will uphold contractual limits on liquor licenses so long as they don’t limit a prospective licensee’s ability to participate in the licensing process or conflict with statute. Public policy is not a magic eraser for inconvenient lease terms.

·       Financing Shortcuts Can Trigger Long-Term Pain – Pledging a liquor license as collateral may seem like an easy solution when money is tight, but if doing so violates your lease terms, it can lead to lease termination, an awkward conversation with your landlord, and very expensive consequences.

Practical Advice for Local Restaurant & Bar Owners:If you currently operate, or plan to operate, a business that utilizes a liquor license, this case offers some practical lessons:

• Read the Entire Lease (Yes, Even That Section) – Anti-pledge clauses are easy to overlook, especially when they’re buried in lengthy lease sections or among boilerplate provisions. But as this case shows, it is very important to read the entire lease whether you have an existing lease or are considering entering into a new lease. Further, it is important to review the lease to ensure that any anti-pledge provisions apply to real property or personal property other than a liquor license.
• Coordinate Legal Advice Before Financing – Before pledging any business asset as collateral, make sure it doesn’t conflict with your lease or other applicable agreements. A quick legal review can be a lot less costly than litigating or defending a default of a lease.
• Assume Enforcement, Not Flexibility – Courts generally assume that sophisticated parties mean what they sign and expect to be bound by the same. It is very important not to rely on hoping a judge will later “balance the equities” later.

Final Pour: Nicosia is not flashy, but it’s important. For local business owners, the lesson is straightforward, treat your lease like required reading, and don’t assume that creative financing will survive creative lawyering on the other side.

If you’re ever tempted to pledge a liquor license as collateral without reviewing your lease first, just remember: the hangover from that decision can far outlast the term of the loan.

An Associate in the Springfield office of Bacon Wilson P.C., Joshua Goldstein has a business and corporate law practice, with an additional practice concentration in liquor licensing.  He is also admitted to practice in New York.  He can be emailed at jgoldstein@baconwilson.com.

*The foregoing was presented for information purposes only, is not legal advice, and does not create an attorney-client relationship.

The information in this article was provided by Attorney Joshua M. Goldstein from our Springfield Office. Attorney Goldstein is a member of the Hampden County Bar Association and the Young Professionals Society of Greater Springfield. He is licensed to practice law in the state of Massachusetts and New York. 

Your Condominium Community is Age-Restricted: How to Keep It That Way

Gary Daddario

Federal and state fair housing laws prohibit discrimination against families with children.  This should not be news to anyone.  But the federal Housing for Older Persons Act (HOPA), enacted in1995, allows “age-restricted” housing communities to bar anyone younger than 55.

HOPA allows two types of age-restricted communities.  The most common requires 80

percent of the units to be occupied by at least one resident who is 55 or older.  The remaining 20 percent may be occupied by residents younger than 55.  This is known as the 80-20 rule. The other HOPA option, less common because it is more restrictive, requires a minimum age of at least 62 for all residents.

To retain their ‘age-restricted’ designation, communities must comply with the regulations established by HOPA and by related state laws, which either mirror its provisions or in some cases are more restrictive. This article will focus on the requirements for 55-and older communities and on the most common compliance questions related to them.

What happens if a senior housing community subject to the 80-20 rule fails to comply with it?   They could lose their exemption from the age-discrimination provisions of the Fair Housing laws.  That means they could no longer bar persons under age 55 and would be subject to discrimination complaints if they did. 

Falling out of compliance can produce a cascade of legal and financial problems. In addition to facing age-related discrimination claims from people under age 55 and families with children who are denied occupancy, communities might be sued by existing owners who purchased homes expecting the community to be age-restricted and who might claim that the loss of the designation has reduced their value.  The litigation risks for associations and the costs potentially related to them are significant.

What happens if a resident who is over 55 dies, but his/her surviving spouse doesn’t meet the age requirement?  This is not uncommon and there are several ways to address the problem.  Some communities adopt a “grandfather” provision, allowing the surviving spouse to remain for a specified period of time after the older spouse has died.  Some communities adopt “hardship” provisions to deal with other 80-20 rule problems – for example, grandparents who have to assume responsibility for their under-age grandchildren, or the resident who needs a full-time live-in caretaker who is younger than 55.  Regulations issued by the Department of Housing and Urban Development (HUD) address the caretaker issue by specifying that caretakers don’t have to be counted as non-qualified residents under the federal law for purposes of meeting the 80-20 rule.   However, some states and some cities and towns have adopted stricter rules that don’t provide that exemption, and age-restricted communities must comply with those requirements as well as with the federal law. 

If the heirs who inherit an owner’s unit don’t meet the age requirement, must they sell it to someone 55 or older? No. The age restrictions in HOPA communities target occupancy, not ownership.  If the community doesn’t prohibit rentals, an heir or an unrelated investor younger than 55 could purchase a unit and rent it to tenants who meet the age requirements. 

Can an over-55 community require that residents of all units – not just 80 percent of them – meet the age requirement and/or require that all occupants of each unit, not just one occupant, must meet the age requirement as well.  Communities can’t adopt rules less restrictive than those in the federal, state or local laws, but they can exceed them, if the governing documents include a more restrictive standard or if a required super majority of owners (usually two-thirds) approves an amendment imposing a more restrictive standard.  However, communities built under state or local programs encouraging senior housing might also need the permission of the agencies that approved of the developments in order to change their occupancy rules. 

Can an over-55 community voluntarily relinquish that designation?  Possibly, and there might be good reasons to do so – for example, to expand the pool of eligible buyers in a slow housing market.  However, the change may require the approval not only of owners not all of whom will like the idea), but also of the local agencies that approved permits for the development.  Many cities and towns welcomed age-restricted housing specifically because it satisfied a particular type of housing need or, by excluding children, did not increase demands on schools and other local resources.  Local officials in these communities may be reluctant to open a door they thought they had closed.

Can associations limit visits by friends or relatives who don’t meet the age restrictions? Generally, no, when it comes to daily visits or visits of short duration.  However, associations can adopt rules limiting the extended stay of visitors younger than 55 when there is reason to suspect that it may be turning into a permanent residency. During short-term visits, associations must allow persons under age 55 to have equal access to amenities.  So, for example, while you can prohibit children from living in the community, you can’t bar them from swimming with their grandparents in the community pool or prevent them from playing in common areas while they are visiting.

Are over-55 communities required to provide services or programs designed for older residents?   HUD’s HOPA rules don’t require any specific programs or services, but they do require age-restricted communities to demonstrate “an intent to create housing for older persons.”  As a practical matter, providing age-appropriate programs and services is the best way to demonstrate that intent. Associations should also make sure that marketing materials for the community as well as its rules and governing documents all reflect its over-55 focus.

To ensure ongoing compliance with the age-restrictions in HOPA and other applicable state and local laws and ordinances, over-55 communities should periodically verify the identity and age of their occupants. HOPA specifically requires a census every two years, but an annual audit is probably the better practice, especially in communities that are close to the cap on under-age occupants.  You typically aren’t required to proactively submit the census results to HUD or anyone else, but you must keep the information on file so you can document compliance with the rules if anyone challenges the community’s over-55 status, or if an agency with jurisdiction conducts a review to verify compliance.

In addition to verifying the age of residents, associations should make sure common areas are equipped with ramps, grab bars and other age-related safety features, both to limit liability risks and to comply with the Fair Housing Act provisions prohibiting discrimination against individuals with handicaps.  Most multi-family housing developments are required to comply with these provisions but failing to do so would be embarrassing, to say the least, for communities created to serve older residents. 

As a practical matter, providing age-appropriate programs and services is the best way to demonstrate that intent.  Associations should also make sure that marketing materials for the community, as well as rules and governing documents, all reflect an over-55 focus.

Gary Daddario is a partner in the Braintree-based law firm of Marcus Errico Emmer & Brooks P.C., concentrating his practice in the field of community association law.  He also assists New Hampshire clients and manages the firm’s office in Merrimack, New Hampshire.  Gary can be emailed at gdaddario@meeb.com.

 

Overview of Legislation on Beacon Hill Targeting Condominiums

 Matthew W. Gaines 

The more than 50 bills we track each year typically contain many that are old, some that are new, and a few that would adversely affect condominium

communities.  Most of these undesirable bills are triggered by disgruntled condo owners who persuade a legislator that their personal issues with a condo board require a legislative response.  Although these bills typically don’t go anywhere, some do gain traction and all must be monitored. 

One bill the REBA Legislation Section is monitoring in the current legislative session, which began January 7, 2025, aims to “enhance transparency and governance” in condo associations.  While there is nothing wrong in principle with the stated goal (“enhancing transparency’), many of the bill’s provisions are problematic.  Of most concern, the bill would:

•       Require open meetings for all condo associations.

 

•       Require associations to use alternative dispute resolution mechanisms.

 

•       Establish an ombudsman in the Attorney General’s office to mediate disputes between condo owners and boards.

 

•       Require boards to provide documents requested by owners within 10 days of the request for associations with fewer than 50 units, and within 5 days for larger communities.

The problem with these provisions and with similar proposals lis that they attempt to impose ‘one-size-fits-all’ requirements that don’t fit all condominiums or all situations.  What works in a 200-unit high-rise may not work at all in a suburban town-house style community.  A community with a full-time manager might easily respond to records requests within five days, but that requirement could overwhelm the volunteer board members in a self-managed community.

A more fundamental problem with these sweeping measures is that they ignore the fundamental precept on which condominiums are based: They are self-governing communities. The Legislature should not make governance decisions that owners can and should make for themselves by amending their governing documents. 

This measure received a favorable report in the House last year from the Housing Committee and has carried over into the new term. It still has a long way to go before the House votes on it (and sends it to the Senate), but because it has cleared one hurdle, REBA is keeping a close eye on it.

REBA’s ‘watch’ list also includes measures that would:

•       Require automatic sprinkler systems in all multifamily buildings that undergo “substantial modification.”  The current wording doesn’t define what constitutes a “substantial modification” and absent clarification, the cost of essential renovations – like roof replacements, could increase from expensive to exorbitant and possibly unaffordable for many condominium communities. The bill hasn’t yet received the second vote in the House that would send it to the Senate, where a committee has reported it favorably.  The LAC hopes to persuade lawmakers to amend this bill or defeat it.

 

•       Add language to the state Condominium Act forbidding associations from restricting the breeds or sizes of dogs allowed in their communities.  This House bill is another example of the Legislature telling condo owners what they can and can’t do in their communities.  The measure was reported favorably by the Housing Committee and referred to Ways and Means, where we hope it will die.

 

•       Prohibit condo associations from unreasonably restricting the installation of solar panels.  This would be reasonable in a town home community, where each building has its own roof, but unworkable in a high rise or mid-rise with limited roof space. How would you decide who gets to use the limited roof space?  The bill hasn’t been reported out of committee yet and the arguments against it are clear.  But given the focus on ‘being green,’ it could gain traction, so the LAC is watching it closely.

Co-chair of REBA’s Legislation Section, Matt is a partner at Marcus Errico Emmer & Brooks,

P.C., concentrating his practice on commercial and residential real estate acquisitions, as well

as condominium and community association law.  Matt can be contacted at mgaines@meeb.com.

Advantages of Summary Bench Trials Under Land Court Rule 14

 

Land Court Update on Voluntary Withdrawals from Registration & Registry Corrections