While some of us were enjoying the Feast of the Seven Fishes, the Massachusetts Environmental Policy Act (MEPA) Office left a few gifts under the tree: the first amendments to 301 CMR 11.00, the MEPA Regulations, in eight years came into effect on December 24, 2021.
The new regulations implement the environmental justice (EJ) requirements of Chapter 8 of the Acts of 2021, the Commonwealth’s landmark Climate Roadmap Act. These include a formal definition of an Environmental Justice Population, enhanced public involvement procedures, and a framework for analyzing environmental justice impacts during the MEPA review process. The Act requires an environmental impact report (EIR) for any Project that is likely to cause Damage to the Environment and is located within 1 mile of an EJ Population (or 5 miles if the Project impacts air quality), and mandates EJ-focused EIR components. The EIR must assess any “existing unfair or inequitable environmental burden and related public health consequences impacting the [EJ] population from any prior or current private, industrial, commercial, state, or municipal operation or project that has damaged the environment.”
If the EJ population is subject to an existing unfair or inequitable environmental burden or related health consequence, the EIR must identify any “(i) environmental and public health impact from the proposed project that would likely result in a disproportionate adverse effect on such population; and (ii) potential impact or consequence from the proposed project that would increase or reduce the effects of climate change on the environmental justice population.”
The Climate Roadmap Act required the Secretary of the Executive Office of Energy and Environmental Affairs (EEA) to promulgate certain regulations within 180 days. These amendments implement Sections 55-60 of the Act. Here are some highlights:
New EJ Definitions
The amendments incorporate the Climate Roadmap Act’s definitions of “Environmental Justice Population,” “Environmental Justice Principles,” “Environmental Benefits,” “Environmental Burdens,” and “Neighborhood,” and add a new term for the “Designated Geographic Area,” which encompasses the 1 mile/5 mile EJ proximity concept in relation to both a Project and an Environmental Justice Population:
Designated Geographic Area.
(a) With respect to a Project, the area within one mile of the Project; or, for a Project that meets or exceeds MEPA review thresholds at 301 CMR 11.03(8)(a)-(b) [air] or that generates 150 or more New adt [average daily trips] of diesel vehicle traffic over a duration of 1 year or more, excluding public transit trips, the area within five miles of the Project.
(b) With respect to an Environmental Justice Population, the area within one mile of the Environmental Justice Population; or, for a Project that meets or exceeds MEPA review thresholds at 301 CMR 11.03(8)(a)-(b) or that generates 150 or more New adt of diesel vehicle traffic over a duration of 1 year or more, excluding public transit trips, the area within five miles of the Environmental Justice Population.
Meaningful Public Involvement
A new section 11.05(4)(a) incorporates key components of the MEPA Public Involvement Protocol for Environmental Justice Populations (“Public Involvement Protocol”), one of two separate guidance documents which supplement these amendments and take effect on January 1, 2022. For any Project that requires an EIR because an EJ Population is located in a Designated Geographic Area around the Project area, the new regulations require the filing of advanced notice of the Project to the EJ Population and the undertaking of enhanced public involvement procedures if a single EIR or rollover EIR is being sought. The Public Involvement Protocol will govern the specific procedures to be followed.
EIR EJ Requirements
Section 11.06(7)(b) provides that “[t]he Secretary shall require an EIR for any Project that is located within a Designated Geographic Area around an Environmental Justice Population.” In the Response to Comments on the draft amendments, at 3-4, the MEPA Office “acknowledge[d] that an increase in EIR filings is likely due to the mandatory phrasing in the Climate Roadmap Act that an EIR ‘shall be required’ for certain projects near EJ populations.”
The plain language of § 11.06(7)(b) reads as an additional mandatory EIR review threshold. Also, the 1-mile prong of the Designated Geographic Area definition is not expressly tied to the exceedance of a separate MEPA review threshold like the 5-mile prong is: a Project is within the 5-mile DGA if it meets or exceeds the MEPA review thresholds for air or the new threshold for diesel vehicle trips, but it is in the 1-mile DGA regardless of any review threshold. This would seemingly require an EIR for any Project located within 1 mile of an EJ Population.
However, as the MEPA Office explains it, the EIR trigger only applies to Projects that already meet or exceed another review threshold and thus are “likely to cause Damage to the Environment”:
Section 58 of the Act applies to projects that are “likely to cause Damage to the Environment,” which is a phrase used in MEPA regulations to describe the MEPA review thresholds that determine the level of MEPA review required. … In practice, this means that projects that are subject to MEPA jurisdiction and meet or exceed one or more “ENF review thresholds,” for which an ENF filing is required and any EIR was formerly required at the discretion of the EEA Secretary, will on a going forward basis be required to submit an EIR if located in the designated geographic areas around EJ populations
Response to Comments, at 4 (emphasis added).
Projects for which an EIR is required under section 11.06(7)(b) must include the EJ impacts analysis set forth in section 11.07(6)(n) in their EIR. This analysis is intended to align with the second supplemental guidance that will take effect on January 1, 2022, the MEPA Protocol for Analyzing Impacts on EJ Populations (“Protocol for Analysis of EJ Impacts”). The amendments require that an EIR contain the following five elements in addition to the usual EIR requirements:
1. Statements about the results of an assessment of any existing unfair or inequitable Environmental Burdens impacting the Environmental Justice Population;
2. If the above assessment indicates that an Environmental Justice Population is subject to an existing unfair or inequitable Environmental Burden: (i) a description of any Project impacts that would likely result in a disproportionate adverse effect on the population; and (ii) any potential Project impacts that would increase or reduce the effects of climate change on the population, taking into consideration how the Project impacts would exasperate the Environmental Burden, the comparative impact of the Project on a non-Environmental Justice Population, and any Project benefits that would reduce potential unfair or inequitable effects on the Environmental Justice Population;
3. A description of alternatives or measures to avoid or mitigate potential impacts on the Environmental Justice Population;
4. Proposed Section 61 Findings that include any actions to address any disproportionate adverse effects, or any increase in the effects of climate change, on the impacted Environmental Justice Population; and
5. Responses to public comments related to the assessment of disproportionate adverse effects or increase in the effects of climate change on the impacted Environmental Justice Population.
“The MEPA Office estimates that more than 80% of new project filings in 2020-21 triggered ENF-only review thresholds, meaning that many future projects will be required to submit an EIR after the effective date of the regulations because they are located in the designated geographic areas around EJ populations.” Response to Comments, at 4.
To address the projected influx in EIRs, the amendments introduce a new “rollover EIR” procedure intended to streamline the EJ review process where a Proponent demonstrates that a Project will not materially impact an EJ Population. This new procedure is covered in new sections 11.05(9) and 11.06(13).
For any Project for which an EIR is required under section 11.06(7)(b) (because it is located in the DGA near an EJ Population), a Proponent may file a dual Expanded ENF and a Proposed EIR, and the Secretary may allow the Proposed EIR to be reviewed as a final EIR, or require the Proponent to file responses to comments on the Proposed EIR together with Proposed Section 61 Findings and review these as a final EIR. The Secretary must find that the dual Expanded ENF and Proposed EIR:
a. completely describes the Project and its alternatives and assesses its potential environmental and public health impacts sufficiently for a Participating Agency to make its Section 61 Findings;
b. demonstrates that the Project will not materially exacerbate any existing unfair or inequitable Environmental Burden and related public health consequences impacting an Environmental Justice Population, and will not result in a disproportionate adverse effect or increased climate change effects on an Environmental Justice Population;
c. describes measures taken to provide meaningful opportunities for public involvement by Environmental Justice Populations prior to filing the dual ENF and Proposed EIR, including any changes made to the Project to address concerns raised by or on behalf of Environmental Justice Populations;
d. shows that comments received on the dual ENF and Proposed EIR do not raise substantial issues not previously considered by the Proponent; and
e. shows that no substantive issues remain to be resolved.
As noted, the MEPA Office issued the Public Involvement Protocol and the Protocol for Analysis of EJ Impacts to supplement and to take effect together with the amended MEPA Regulations. The Public Involvement Protocol “will instruct Proponents on how to describe ‘negative effects’ and to promote public involvement for EJ populations. Response to Comments, at 7. The Protocol For Analysis of EJ Impacts “will help to ensure that Proponents will apply a consistent methodology across projects when conducting assessments of existing ‘Environmental Burdens’ and the added impacts of the project.” Id. at 8. New project submissions will be expected to comply with the Protocols starting January 1, 2022.
The MEPA Office also announced that it is planning a second-phase rulemaking effort in 2022 to comprehensively review all sections of the MEPA regulations. It will consider whether to add additional definitions of “disproportionate adverse effect” and “unfair or inequitable burden” into MEPA regulations, which it declined to do with these amendments because of ongoing efforts in conjunction with MassDEP to define a similar EJ impacts analysis for air permitting. See Response to Comments, at 6.
Although not an official Red Ryder carbine action, 200-shot, range model air rifle, at least these new MEPA regulations won’t shoot your eye out.
For any questions about how these legislative changes may affect your project, contact the attorneys at Mackie Shea Durning, P.C.
 The MEPA Regulations “establish[ ] review thresholds that identify categories of Projects or aspects thereof, of a nature, size or location that are likely, directly or indirectly, to cause Damage to the Environment. Except when the Secretary requires fail-safe review, the review thresholds determine whether MEPA review is required.” 301 CMR 11.01(2)(b)1. “MEPA review is required when one or more review thresholds are met or exceeded and the subject matter of at least one review threshold is within MEPA jurisdiction. A review threshold that is met or exceeded specifies whether MEPA review shall consist of an ENF and a mandatory EIR or of an ENF and other MEPA review if the Secretary so requires.” 301 CMR 11.01(2)(b)2.