Foley Hoag LLP

SUMMARY

Two recent developments, one by the Massachusetts Department of Environmental Protection (“MassDEP”) and one by ASTM International (“ASTM”), underscore the importance of addressing indoor air contamination that results when soil or groundwater contamination migrates as vapor.  On the regulatory side, MassDEP has emphasized its focus on this issue by issuing a flurry of draft guidance and procedures.  From an industry perspective, ASTM recently released a new industry standard for assessing indoor air contamination at properties that are the subject of real estate transactions.  As MassDEP’s draft standards are regulatory in nature and appear stricter than the ASTM standard, the ASTM standard may be of limited relevance here in Massachusetts.  However, it may serve to set the standard of care in states where Superfund regulations on this topic are not as detailed as those in Massachusetts.

SUMMARY

Yesterday, the U.S. Environmental Protection Agency published its long-anticipated formal determination on California's request to waive federal preemption of its automobile emissions standards for greenhouse gas emissions ("GHGs"). Although the ultimate fate of the EPA's determination will almost certainly be decided by the courts, the dispute between California and the EPA highlights the tension between state and federal efforts to regulate GHGs.

SUMMARY

Successful dispute resolution requires perspective, from all vantage points. At Foley Hoag, we offer you clear insight into when to go to the mat and when to settle. If litigation becomes necessary, we focus on helping you make prudent upfront decisions that best represent your interests and aim to reach a prompt, cost-effective and viable solution.

SUMMARY

Massachusetts has significantly amended its waterways statute, Mass. Gen. Laws Chapter 91, clarifying the authority of the Department of Environmental Protection (DEP) to issue licenses for construction or development on “landlocked tidelands.” The amendments are important to anyone developing or owning property that is now or was formerly subject to the ebb and flow of the tides, even if that land was filled in decades or centuries ago.

In February 2007, the Massachusetts Supreme Judicial Court ruled in Moot v. Department of Environmental Protection that DEP acted without sufficient legislative authorization when it granted the developer of the NorthPoint project a license to develop a large parcel in Cambridge that was located partially on filled -- and now “landlocked” -- tidelands. Tidelands become landlocked, according to the definition provided in Chapter 91, when they are separated from “flowed” tidelands by a public way and filled in. Many tidelands thus landlocked have historically been built upon as reclaimed land; although the most prominent landlocked tideland in the Commonwealth is Boston’s Back Bay, landlocked tidelands exist in numerous other communities, including Gloucester, Salem, and New Bedford.

The Court agreed with the Moot plaintiffs, noting that Chapter 91 requires DEP to “preserve and protect” the public’s rights in tidelands, and that those public rights can only be relinquished or extinguished by the Legislature. The Court held that while DEP was authorized to license “non-water-dependant” uses of tidelands, it could only do so if such a use constituted a “proper public purpose.” While declining to determine what precisely constitutes a “proper public purpose,” the Court held that the failure to hold a public hearing regarding whether proper public purposes existed meant that DEP had failed to meet its statutory mandate. In particular, the Court explicitly invalidated the DEP regulations (310 Code Mass. Regs. § 9.00 et seq.) that categorically exempted “landlocked tidelands” from licensing and public review requirements.

Following the Court’s decision, there was extensive public concern that both ongoing and existing developments on landlocked tidelands -- which had proceeded pursuant to the Court-invalidated DEP regulations -- could themselves be declared in contravention of Chapter 91, thus complicating further development and potentially clouding hundreds of property titles. By some accounts, over 3,000 acres of landlocked tidelands currently exist within the Commonwealth. After lengthy discussions involving Governor Deval Patrick, the Legislature, and interest groups, the Legislature responded to the Moot decision by passing legislation meant to redress the authority of DEP to license and oversee development on the Commonwealth’s tidelands. This legislation, entitled “An Act Relative to the Licensing Requirements for Certain Tidelands,” was signed into law by Governor Patrick on November 15, 2007.

SUMMARY

Massachusetts has become one of the first states in the nation to require developers of certain projects to quantify and mitigate greenhouse gas (“GHG”) emissions. On October 19, 2007, the Executive Office of Energy and Environmental Affairs (“EEA”) issued the final MEPA Greenhouse Gas Emissions Policy and Protocol (“GHG Policy”), available here (.pdf). Projects subject to the policy for which developers submit an Environmental Notification Forms (“ENF”) or Expanded Environmental Notification Form (“EENF”) after October 31, 2007 must include GHG quantification and mitigation pursuant to this policy. The MEPA office will also review Notices of Project Change submitted after October 31st on an individual basis to determine whether the project will be required to comply with the policy.

The Massachusetts Environmental Policy Act (“MEPA”) requires developers of projects with significant direct air emissions or transportation impacts to prepare and file Environmental Impact Reports (“EIRs”). The GHG Policy does not make any changes regarding what projects are subject to the EIR filing requirement. Instead, it requires certain projects already subject to the EIR requirement to quantify the potential greenhouse gas (GHG) emissions caused by the project, and identify measures to avoid, minimize or mitigate such emissions.

Although the policy requires quantification of both GHG emissions and any proposed mitigation, the EEA has emphasized that 100% certainty in projections is not required. EEA has also stated that the GHG Policy is not intended to create a numerical GHG emission limit or reduction target. However, EEA has provided an appendix with a very detailed list of potential mitigation measures. Only time will tell how flexible EEA will actually be concerning what types of mitigation will be required under the GHG Policy.

SUMMARY

This guide is intended to provide foreign businesspeople with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States, and particularly in the Commonwealth of Massachusetts. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as by direct regulation.

SUMMARY

Chambers and Partners, a leading U.K.-based research and publishing company, has again included Foley Hoag and its individual lawyers in its popular Chambers USA: The Client's Guide. This year, eleven practice areas and 22 lawyers are represented.

A digital reprint is avalable for download (.pdf).