New MEPA Rules Mean Big Changes For Practitioners and Developers

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

In compliance with the Climate Roadmap Act, the Massachusetts Environmental Policy Act (MEPA) Office has released the final version of its new regulations and two final protocols regarding new MEPA review procedures to evaluate project impacts on Environmental Justice (EJ) populations.  The regulations will go into effect on December 24, 2021 and the two protocols will go into effect on January 1, 2022. Here are the big takeaways:

The MEPA Regulations

The new MEPA regulations include six new definitions: Designated Geographic Area, Environmental Benefit, Environmental Burden, EJ Population, EJ Principles, and Neighborhood. A Neighborhood may be classified as an EJ Population if it meets certain criteria based on income, English proficiency, and minority composition. A Designated Geographic Area includes (i) the area within one mile of a project or an EJ population, or (ii) the area within five miles of a project or EJ population if the project exceeds MEPA thresholds or will impact air quality. Project proponents will need to analyze how their project will impact environmental burdens and environmental benefits (such as air, water, open space, etc.).

Proponents will need to include measures for mitigation of public health impacts in EIRs and expand public participation in the MEPA review process for EJ Populations. Section 61 Findings will now need to include a finding that all feasible measures have been taken to minimize unfair or inequitable effects on EJ Populations. The regulations also create a new compliance pathway, known as a “rollover EIR”, that allows a Proponent to submit an “Expanded ENF/Proposed EIR” as a way to comply with the new requirements to perform full EIRs in EJ communities for projects that previously only required an ENF.

All ENFs filed on or after January 1, 2022 will be subject to these rules.

MEPA Protocols

The MEPA Office released two protocols: the Public Involvement Protocol for EJ Populations (Public Involvement Protocol) and the Protocol for Analysis of Project Impacts on EJ Populations (Impacts Analysis Protocol). Both will go into effect on January 1, 2022.

The Public Involvement Protocol expands on, but does not supersede, the requirements of the EJ Policy issued by EOEEA last June. The Protocol provides the requirements for community outreach and public participation for Projects impacting EJ Populations. The EJ Screening Form, which must be used to provide EJ populations advance notice of the filing of an ENF, and additional sections of the ENF are appended to the Protocol. While this Protocol will become effective January 1, 2022, the Secretary may require enhanced community outreach on certain Projects that have already filed ENF/EENFs.

The Impacts Analysis Protocol provides guidance for analysis of project impacts, including disproportionate adverse effects and potential climate change impacts, on EJ Populations. It provides the recommended methodology for assessing existing unfair or inequitable environmental burdens and analyzing project impacts. This protocol also discusses the procedures for projects seeking to qualify as Ecological Restoration Projects.

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As these regulations have introduced several new concepts and compliance mechanisms, including the rollover EIR, project proponents should keep an eye on the Environmental Monitor in the coming months to see how these new rules impact project filings as well as for early evidence regarding how the MEPA office will be interpreting the new rules.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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