That is the upshot of a recent Massachusetts Supreme Judicial Court ("SJC") ruling that a group of ten citizens opposing a project proposed in the Middlesex Fells Reservation (the "Reservation") have the right to a trial to determine whether the project's proponents (Fellsway Development, LLC ("Fellsway") and the state Department of Conservation and Recreation ("DCR")) illegally segmented the project to avoid review under MEPA.

The case is known as Ten Persons of the Commonwealth v. Fellsway Development, LLC, 460 Mass. 366 (2011). The SJC decision answered the oft-debated question whether and to what extent citizen groups have the right to sue project sponsors to challenge MEPA decisions from the Secretary of the Executive Office of Energy and Environmental Affairs ("Secretary" and "EOEEA").

MACC submitted a friend of the court brief, called a Brief Amicus Curiae, in support of the ten-citizen group. The brief was authored by attorneys Gregor McGregor and Luke Legere of McGregor & Legere, P.C., and successfully argued that the citizen group's appeal should be allowed to proceed.

The ruling also has implications for public-private mitigation agreements and reviewability of EOEEA MEPA decisions generally.

The Reservation is 2,575 acres of wooded parklands and historic parkways, controlled by DCR. Fellsway purchased an approximately forty-acre private parcel within the Reservation in 2000, which most recently had accommodated a hospital. Fellsway introduced several alternative proposals for the site, which has access off of a four-lane parkway running through the Reservation.

Fellsway in 2000 submitted an Environmental Notification Form ("ENF") under MEPA for its first proposal. The Secretary determined that the redevelopment fell within the jurisdiction of MEPA (due to the state permits that it would require, including a permit from DCR for road construction necessitated by the estimated 8,920 additional vehicle trips per day that the project would create). The Secretary ordered the mandatory filing of an Environmental Impact Report ("EIR").

Fellsway in 2005 filed a Notice of Project Change under MEPA. Although the project had changed, it would still require permits from DCR to construct roadway alterations. The Secretary ordered a Supplemental Final Environmental Impact Report ("SFEIR").

Fellsway in 2007 again revised the project to, among other things, eliminate all proposed alterations of the parkway. Fellsway argued, therefore, that it did not require any permits to proceed (because DCR regulations required a permit only for direct physical roadway alteration).

DCR responded to the Secretary that, regardless whether Fellsway needed a DCR permit, traffic mitigation construction on the parkway was necessary to prevent "public safety risks directly posed by development of the project." In other words, if Fellsway would not perform the road improvements itself, DCR would be forced to do the work. The Secretary concluded that the project still was within MEPA jurisdiction and mandated that the developers prepare an SFEIR.

Fellsway filed suit seeking a declaration that MEPA jurisdiction was not triggered by its latest project iteration. Ultimately, however, DCR and Fellsway entered into a memorandum of understanding ("MOU") to settle their differences.

Under the Fellsway-DCR MOU, Fellsway pledged to pay $1.8 million into an escrow account to be used by DCR, within three years, to undertake roadway improvements within the Reservation. In exchange, DCR would issue a declaration that the project required no permit or financial assistance from DCR.

The MOU was contingent on securing an advisory opinion from the EOEEA Secretary that the project was not subject to MEPA jurisdiction. This the Secretary issued.

Specifically, the Secretary concluded that the project successfully avoided state permitting requirements or indirect financial subsidies, and was not subject to MEPA jurisdiction if Fellsway executed and performed under the MOU. The Secretary decided that DCR's roadway improvements would require review under MEPA, but that the MOU did not violate the anti-segmentation provisions of the MEPA regulations as Fellsway's project and DCR's roadway improvements did not comprise a "common plan."

The citizen plaintiffs filed a complaint in the Superior Court to enjoin project construction and invalidate the Secretary's advisory opinion. Their complaint alleged that the project would cause damage to the environment in violation of MEPA. It sought declaratory judgment and injunctive relief under the Citizen Suit Statute, G.L. c. 214, §7A.

The Citizen Suit Statute confers standing on ten Massachusetts citizens, and/or any municipality, to sue to enforce state and local laws intended to prevent damage to the environment. The Superior Court dismissed the case for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.

On appeal, the SJC decided that the citizens' case against the project proponent and DCR had been improperly dismissed by the Superior Court.  In this respect, the lower court was reversed and the case remanded for trial under the Citizen Suit Statute to enforce MEPA.

A key ruling is that the DCR remains as a defendant in the suit. The MOU, by which DCR agreed to accept a private financial contribution in exchange for performing road improvements to mitigate the project's impacts, was enough to qualify DCR as a project "proponent" under MEPA.

While ordering trial for alleged illegal "segmentation," the SJC decision, based on prior decisions, does deny the plaintiffs' efforts to use the Citizen Suit Statute or Declaratory Judgment Statute to sue the Secretary. In other words, the Superior Court properly had dismissed the claims against the Secretary for lack of subject matter jurisdiction. Thus, as commonly understood for many years, it remains nearly impossible to challenge the EOEEA directly for a MEPA decision that a project does not require an EIR.

For conservation commissions, this case affirms and illustrates the importance of taking an active role in the MEPA process. Meaningful public participation is one of the central tenets of MEPA, and is integral to successful protection of wetlands and water supply and resources.

Where a proposed project with potentially harmful environmental impacts does not trigger conservation commission review under the state Wetlands Protection Act or a Home Rule wetlands ordinance or bylaw, the MEPA process may provide the only meaningful review of environmental impacts.

Interested commission members must watch the MEPA process closely, from the very beginning through to the end, to ensure project proponents are made to prepare and publish a proper ENF or Draft and Final EIR. If not, this ruling means that ten Massachusetts citizens, or any city or town, may sue to enforce MEPA.