By virtue of the Massachusetts Environmental Policy Act (MEPA), all agencies, department, boards, commissions, and authorities of the state, as well as a few authorities of political subdivisions (such as local housing authorities and redevelopment authorities that are established by state statue) must prepare, circulate, and consider an Environmental Impact Report (EIR) 60 days prior to undertaking any project which may cause significant damage to the environment.

In this respect Massachusetts is one of about two dozen states with full-fledged environmental study laws requiring that large projects or important government decisions are undertaken only after some degree of comprehensive, interdisciplinary analysis, or at least meaningful transparency and public disclosure. Our firm has handled several successful suits concerning the applicability and implementation of MEPA. In addition, we work for clients on the workaday aspects of this tool of decision making.

MEPA reaches any work or activity meeting a broad definition of “project” – including government grants and approvals.  Consequently, MEPA extends beyond projects performed directly by state agencies to cover private sector projects.  These can become subject to MEPA through state permits, licenses, and other approvals (and state agency resolution of appeals from local boards).  They also can become subject to MEPA by securing state grants and other forms of financial assistance. 

MEPA does not apply to the determinations of local government, such as boards of selectmen and city councils, planning boards, zoning boards of appeal, school boards, and boards of public works, unless the subject of the determination has some regulatory or financial connection with the state.  The same is true of determinations of special purpose local governmental entities such as sewer districts and water districts.

Basic to determining the applicability of MEPA are the regulations on MEPA Review Thresholds.  These regulations assign numerical values to various criteria that are applied to the proposed actions.  If a proposed action reaches the applicable numerical threshold, it generally will have to undergo MEPA review, beginning with the preparation of an Environmental Notification Form (ENF).  Conversely, MEPA will not apply to a proposed action that falls below the threshold (unless it qualifies for MEPA review under some facet of the regulations other than the Thresholds). 

There are Review Thresholds for permits for agencies within several Executive Offices of Massachusetts.  Likewise, there are Review Thresholds for agency actions and financial assistance that present numerical limits or qualitative criteria for various functions of government such as operations, maintenance, rehabilitation, repair, minor alterations, construction, replacement, reconstruction, conversion, expansion, or demolition.

In addition to the Review Thresholds, there are Categorical Inclusions; in other words, some projects automatically trigger the preparation of EIRs.  These numerical triggers concern such matters as the amount of affected:

• acres of land;
• acres of wetlands;
• acres of waterways;
• acres of tidelands
• boat slips;
• floor space;
• residential units;
• buildings (in terms of heights);
• parking spaces;
• vehicle trips; and
• water volumes utilized from public water supplies.

The MEPA Unit may conduct a scoping session with proponents in the form of a meeting or a site visit where proponents and public participate to protect their rights and state their positions. A scope is determined for the EIR, essentially a comprehensive table of contents and MEPA Unit expectations for the study.

Review and comment period lasts thirty days once the EIR availability is printed in the Environmental Monitor – public comment, interested agency review, and MEPA Unit review occur during this time. After seven days from the close of review and comment, the Secretary issues a certificate of compliance or non-compliance with MEPA requirements.

Compliance with MEPA requires a finding by the Secretary that “all feasible measures have been taken to avoid or minimize [environmental] impacts.”  G.L. c 30, §61.

Most projects subject to MEPA review satisfy MEPA and EOEA by filing an Environmental Notification Form (ENF). This is less costly and time-consuming. Essentially, the MEPA Unit reviews the ENF to decide if an EIR needed. 

The Secretary of EOEEA has authority to designate areas which represent “unique clusters of natural and human resources values” worthy of a high level of concern and protection as an area of critical environmental concern. Designation as an ACEC triggers a higher level of state scrutiny of the activities in them (most notably under MEPA).

There are currently about 30 identified ACECs, comprising about 268,000 acres of land. Agencies generally directed to administer their programs to preserve, restore, and enhance the natural resources of ACECs and ensure that activities in, or impacting upon them, minimize adverse impacts.

From your initial decision on whether and how MEPA applies to your project, permit or state contract or grant, to whether you need an ENF or full EIR, to whether to satisfy MEPA without a Draft EIR, just a Final EIR, to whether to challenge the MEPA Unit’s assigned scope for the EIR, its conditional approval of your Draft EIR, or the adequacy of your  Final EIR when completed, we ask you to consider our services.