Allen v. Boston Redevelopment Authority

(Massachusetts Supreme Judicial Court)

• Opposing Judicial Expansion of the Scope of the Massachusetts Environmental Policy Act

This case involves Boston University’s proposed bioterrorism laboratory to be sited in Boston.  The decision of the Superior Court under review raised two issues of first impression for the Massachusetts Supreme Judicial Court regarding the scope of the environmental impact review process for proposed projects under the Massachusetts Environmental Policy Act, G. L. c. 30, §§ 61 – 62H, (“MEPA”).  The trial court decided that BU’s environmental impact report was inadequate because it failed to address the risk of direct human-to-human contagion and because it did not evaluate alternative, rural site(s).  NELF filed an amicus brief with the SJC, for itself and the Associated Industries of Massachusetts, arguing that MEPA does not apply to impacts on human health unless they arise from an impact on the natural or physical environment, such as air or water pollution, and that MEPA does not contemplate review of alternative sites.  On the first of these issues NELF relied in part on the United States Supreme Court’s interpretation of the federal counterpart to MEPA, the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347.  In a decision rendered on December 13, 2007, the SJC upheld the trial court, expanding the meaning of the word “environmental” for purposes of MEPA well beyond its scope as previously understood by extending MEPA’s purview to direct public health impacts in the absence of any air or water pollution or other impact on the physical environment giving rise to the perceived health risks.  The SJC’s decision also empowers the state to require that private project proponents evaluate alternative locations for their proposed projects even though the state cannot require a private party to pursue a voluntary project at other than its proposed location.  In a concurring opinion, Justice Cordy acknowledged that the case presented “the temptation to stretch our MEPA statute” with potential “unintended consequences for many projects of a different nature,” since “there are many projects, such as hospitals, clinics, medical laboratories, nursing homes, prisons and even food processing plants,” that pose the risk of human-to-human spread of contagious pathogens.