NEWS

Firm Successes – Fall 2015

  • Tom Mackie and Peter Durning successfully represented MGM Redevelopment LLC in Land Court against a challenge by an abutter to MGM’s proposed Springfield Casino to the proposed dimensions of the Springfield Casino Overlay Zoning District. The City of Springfield was ably represented by City Solicitor, Ed Pikula.
  • Tom and Peter  won a case in the Massachusetts Appeals Court that affirmed their Land Court victory reinstating building permits for a $200M 35 MW biomass power plant planned for Springfield that had been wrongfully revoked by the local Zoning Board of Appeals. They also successfully opposed a Petition for Further Appellate Review of the Appeals Court decision to the Supreme Judicial Court.
  • John Shea negotiated a Consent Judgment with the Attorney General’s Office for a heavy industry client which requires an upgrade of air emission controls that will establish nationwide BACT, operational and management improvements at three facilities, and the performance of two Supplemental Environmental Projects. A substantial portion of the civil penalty is suspended and will be forgiven upon achieving compliance milestones.  The negotiations took nearly three years.
  • John and Peter prevailed in a hotly contested MassDEP wetlands adjudicatory hearing in which the municipality and a ten resident group challenged our client’s stormwater management system for a 50-lot, high-end residential development.
  • John  negotiated a settlement in an adjudicatory appeal by an environmental organization of our municipal client’s groundwater discharge permit for upgrades and increased sewage flow to its wastewater treatment facility. The settlement agreement and modified permit requires increased groundwater monitoring and evaluation of nitrogen loads, development of a nitrogen offset plan for increased concentrations in a watershed flowing to an impaired embayment, and evaluation of nitrogen pollution reduction measures, including an ocean outfall, under the Cape Cod Water Quality Management 208 Plan Update.
  • After an adjudicatory appeal by an abutter, John and Peter obtained a Final Negative Determination of Applicability for minor changes to our clients’ fully approved and constructed home on the Dartmouth coast. The Presiding Officer and the MassDEP Commissioner determined inter alia that the LID roof runoff collection and watering system will not harm wetland resources.
  • John obtained a Water Quality Certification from MassDEP and a 404 Permit from the Army Corps for a stream relocation to facilitate the revitalization of a retail shopping center, and a state-of-the-art stormwater management and new riverfront habitat. The Corps’ approval requires “time of year” construction limits to protect potential habitat of the newly-listed endangered Northern Long-Eared bat.
  • Peter assisted a residents’ group in Marblehead to develop and implement a strategy that eventually convinced a neighbor to withdraw his planning board application to construct a grandiose garage/exercise/office structure on a portion of the jointly-owned, island roundabout.

Renewables Corner – Fall 2015

The Massachusetts Department of Energy Resources (DOER) is preparing draft regulations to include renewable thermal in the Massachusetts Alternative Portfolio Standard (APS) pursuant to Chapter 251 of the Acts of 2014.

The MassDEP has still not finalized its evaluation of wind turbine noise, which some wind energy advocates claim is stymying development of land based wind energy. In 2012 the MassDEP issued a Wind Turbine Health Impact Study  that stimulated a spirited discussion over the health effects of wind turbines including significant public comments and additional information. In response, in 2013 MassDEP convened the Wind Turbine Noise Technical Advisory Group (WNTAG) to provide advice on recommended changes to MassDEP noise regulations and/or policies as they apply to wind turbine noise. In July 2013, the MassDEP issued a Discussion Document entitled Potential Revisions to MassDEP Noise Regulations and Policy to Address Wind Turbine Noise.  Some in the field believe that the wind noise measurement techniques discussed by the MassDEP would inappropriately overstate the noise impact of turbines.  Unfortunately, since the Baker Administration has come into office, the MassDEP has not reconvened the WNTAG.

In May, the Baker-Polito Administration announced the launch of a new $10 million initiative aimed at making Massachusetts a national leader in energy storage. The Energy Storage Initiative (ESI) includes a $10 million commitment from the Department of Energy Resources (DOER) and a two-part study from DOER and the Massachusetts Clean Energy Center (MassCEC) to analyze opportunities to support Commonwealth storage companies, as well as develop policy options to encourage energy storage deployment.

In October, Entergy announced that Pilgrim Nuclear Power Station will close by June 1, 2019. Coupled with the planned shut down of large coal fired generating stations in the Commonwealth, this could open up the market for more renewable power.  However, it is likely that renewable energy producers in Massachusetts will face competition from Canadian hydro-power and new imports of natural gas, if the current Administration’s policies succeed.

Over the summer, Governor Charlie Baker filed two pieces of energy legislation that, if passed, will affect the renewable energy market.  In July, he filed An Act Relative to Energy Sector Compliance with the Global Warming Solutions Act, to diversify the state’s energy portfolio through the procurement of cost-effective, hydropower generation.  Among other things, the legislation will permit Massachusetts utilities to collaborate with other New England states, including Connecticut and Rhode Island, in the procurement of hydroelectric resources. Critics question whether a large amount of Canadian hydropower will crowd out other Massachusetts based renewable energy sources.  Ironically, others criticize republican Governor Baker’s proposal as a massive “re-regulation” of the deregulated energy market place and a “subsidy” for Canadian hydro-power.  In August, Governor Baker filed  An Act Relative to a Long-Term, Sustainable Solar Industry  to raise the private and public net metering caps two percent each, to six and seven percent, respectively. This represents a 50% increase for public entities, and a 40% increase for private entities, in the allowable amount of solar energy available for net metering credits. This increase will provide immediate support for projects being developed in service territories where the caps have already been reached, and provides the Department of Public Utilities with the authority to raise the caps further, as needed in the future.  Previously, the Administration announced a coordinated process with Rhode Island and Connecticut to issue a Request for Proposal (RFP) for clean energy resources. At the same time, the Governor instructed the DOER to commence a proceeding at the DPU to consider how the electric utilities can pursue gas capacity contracts that would improve winter reliability and lower winter electricity costs.  On October 2, the DPU issued its Order Determining Department Authority under G.L. c. 164, 94A that utilities can enter into such long term gas contracts to reduce electricity costs.

It’s Time to Restore the Promise of the Permit Session.

In the September 14, 2015 issue of Massachusetts Lawyers Weekly, Tom and Peter provide their opinion on recent judicial efforts to undermine the legislature’s intent in passing the Permit Session Statute. With this issue poised to go to the Supreme Judicial Court, this is a good time to restore the promise of the Permit Session.

False Claims Act – Be Warned

Although Charlie Baker sent business a friendly message with his Executive Order suspending new regulations, Attorney General Maura Healey and her staff of Assistant AGs in the Environmental Protection Division are not so charitable.  Yesterday, four senior AAGs presented on the use of the False Claims Act against environmental violators. The False Claims Act is a “very strong tool” and they are “anxious to use it.”  In translation, “watch out” if you are engaged in business with the government and unfortunate enough to get into a related environmental beef that is referred to the AG.

The AG’s Office is increasingly using False Claims allegations to soften up environmental enforcement targets with additional investigative tools, increased penalties and the specter of triple damages (i.e. disgorgement of up to 3X any economic benefit).  Liability can be established if a defendant makes a “false statement” to the government (or any of a host of other related parties like government contractors and subcontractors) that results in an underpayment to or overpayment from the government.
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