Ten Residents of Boston v. Boston Redevelopment Authority

(Massachusetts Supreme Judicial Court)

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

This case involves a proposed bioterrorism laboratory to be sited by Boston University at the BU Medical Center site in Boston.  The decision of the Superior Court under review raises 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 possible alternative site(s) in a more rural part of the state.  If upheld, the trial court decision would effectively write the word “environmental” out of MEPA by extending its purview to direct public health impacts in the absence of any environmental impact giving rise to the perceived health risk.  The decision below would also empower the state to require that private project proponents evaluate alternative locations for their proposed projects even though no public agency can require a private party to pursue a voluntary project at other than its proposed location.  In response to the Court’s solicitation of amicus participation, NELF filed a brief on August 17, 2007, for itself and the Associated Industries of Massachusetts.  NELF argued 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.  The brief relies on key statutory and regulatory language and comparable language in other state environmental statutes, as well as the purpose of the MEPA review process and its relationship with other governmental programs.  For the first issue the brief also relies on a decision of the U.S. Supreme Court that is directly on point under the federal counterpart to MEPA, the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347.