I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the Recommended Final Decision by Presiding Officer Timothy Jones, rejecting challenges by the Conservation Law Foundation to the air permit issued to the project by MassDEP. For practitioners, the case is important, but a decidedly mixed bag.
First, on the issue of broadest importance, I’m sorry to say that MassDEP missed a real opportunity to conform its standing requirements to the actual meaning of Chapter 30A. Instead, MassDEP seems to have fallen into the traditional Massachusetts trap of concluding that more process is always better. The decision does not simply resolve ambiguity in favor of more process; it finds ambiguity where there is none.
This blog will not permit a full explication of the issue, but the crux is that Chapter 30A, § 10A provides groups of 10 citizens with the right to intervene in, but not initiate, adjudicatory proceedings. The Recommended Final Decision would have denied standing, noting that the “statutory language appears clear and capable of a rational application.” It also noted the distinction between Chapter 30A, § 10A, which allows intervention in adjudicatory proceedings, with § 7A, which allows 10 citizens to commence actions in court. Finally, the Recommended Final Decision pointed to two recent Supreme Judicial Court cases making it fairly clear that permit application processes are not adjudicatory proceedings into which 10 citizens may “intervene.”
None of this carried weight with the Commissioner. As much as I admire him, the logic of the Final Decision just seems tortured. I can imagine this decision being affirmed by a trial judge, but if this ever makes it to the SJC, I’d bet the house on a unanimous decision denying standing; the statutory language and the distinction between § 7A and § 10A seem too clear to get around.
The question of how the standing decision will do on appeal brings us to the decision on the merits. Here, the Final Decision adopted the Recommended Final Decision, which concluded that the permit complied with applicable regulations. The important point is that CLF had argued that, even though the facility demonstrated that its emissions would not cause any exceedance of National Ambient Air Quality Standards, those emissions still constituted a “condition of air pollution,” because of adverse health impacts at sub-NAAQS levels.
Readers of this blog will realize that the same issue was raised in the North Carolina v. TVA, the public nuisance case brought by North Carolina regarding upwind emissions from out of state TVA power plants. There, the District Court ruled for the North Carolina and issued an injunction against the TVA, but the 4th Circuit Court of Appeals reversed, holding that there is no place for such public nuisance cases within the detailed Clean Air Act regulatory regime. Although the arguments in Palmer were slightly different, the affirmation of regulatory reliance on NAAQS as a regulatory baseline is critically important.
I can only hope that CLF appeals. I’m confident that, if it gets that far, the decision on the merits would be affirmed. However, I really want the appeal because I want the standing issue to be adjudicated again. If CLF wants the right to appeal permits they don’t like, then persuade the legislature to amend Chapter 30A. Until then, I want the courts to interpret “intervene” as it is meant to be interpreted.