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New environmental regulations regulate developments that generate large numbers of diesel truck trips near Massachusetts neighborhoods designated as environmental justice population.
New state regulations designed to protect marginalized populations from environmentally-harmful projects are expected to add delays and additional project costs for commercial developers, particularly in the booming e-commerce distribution sector.
The first major update to MEPA regulations since 1998 took effect in January, including new definitions of environmental burdens and benefits, to comply with the state’s 2021 Climate Roadmap Act. For the first time, state environmental regulators are required to consider the effects of environmental justice populations within 5 miles of a proposed project, including air quality.
“Like any good and well-intentioned regulatory scheme, it can be blunt as an instrument of trying to accomplish something that is obviously a very worthy objective: to minimize harm to environmental justice communities,” said Douglas McGarrah, co-chair of Foley Hoag’s real estate and development practice. “Because of the way the regulatory process works, it can capture things that add time and costs to the project.”
Focus on Smog Generators
The new regulations cast a wider net in reviewing the number of projects that generate substantial diesel emissions, potentially influencing developers’ plans for high-profile sites such as Boston’s Widett Circle. The 19-acre site is located just south of the Massachusetts Turnpike-Interstate 93 interchange, and a 2019 report by the Union of Concerned Scientists spotlighted the nearby Chinatown neighborhood’s status as having the worst air pollution in Massachusetts.
The updated standards also could affect future projects similar to the proposed Eversource electrical substation in East Boston. Conservation Law Foundation is appealing a Department of Environmental Protection approval of the project, saying it represents a historic pattern of sitting environmentally harmful projects in low-income neighborhoods and communities of color.
As updated, the regulations require an environmental impact report for any project likely to harm the environment and located within a mile of an environmental justice population, and within 5 miles for projects affecting air quality. The air quality review is triggered by projects expected to generate at least 150 diesel vehicle trips daily.
The air quality reviews could add delays to e-commerce warehouse projects near population centers, Foley Hoag’s McGarrah said.
Boston on a smoggy day in 2020. With air quality substantially worse in Massachusetts’ working-class neighborhoods thanks to highways and other pollution sources, developments within 5 miles of “environmental justice” populations are facing heightened scrutiny.
“What they are trying to get at are, for example, truck distribution centers located in environmental justice communities,” he said. “If you have a densely populated area, you want to see the impact from such facilities on air quality.”
New Emphasis on Community Outreach
Another immediate change is that developers notify environmental justice populations within 5 miles of their project site at least 45 days before submitting their proposal, through outreach to community organizations and potential meetings and online project pages. That requirement will encompass a large swath of Massachusetts’ most populous communities, noted Matthew Kiefer, a real estate attorney at Goulston & Storrs.
“There is no place in Boston that is more than 5 miles from an environmental justice community, and that’s true in many Gateway Cities and other urban locations,” Kiefer said.
As defined by state regulations, environmental justice populations exist in 188 cities and towns with one or more factors such as below-average income, minority populations of 40 percent or more, or at least 25 percent of households lacking English proficiency.
Even groups such as Massachusetts Audubon Society, which supports the new environmental justice provisions, say the MEPA regulations are long overdue for an update.
The updated MEPA regulations’ effect on project timelines and soft costs such as consultants are still coming into focus, real estate attorneys say, as the first generation of projects works its way through reviews by the state Executive Office of Environmental Affairs. But it’s likely that more projects will be required to submit environmental impact reports, adding costs and additional time to commission consultants’ studies.
“MEPA is one of the longest processes you encounter in Massachusetts [land use permitting],” said John Smolak, a North Andover attorney who represents the Home Builders and Remodelers Association of Massachusetts on the MEPA advisory committee. “My concern is extending a process which would have an unintended effect upon the people you’re intending to benefit.”
Industrial Projects Most Affected
Because of the focus on emissions, Goulston & Storrs’ Kiefer predicts the new reviews will have the most effect upon industrial developments.
Steve Adams
“For any project within 5 miles of an environmental justice community, you need to be thinking of this,” he said. “If it’s going to be an industrial facility that is going to have a large number of vehicle trips, this is going to be very meaningful.”
Even groups such as Massachusetts Audubon Society, which supports the new environmental justice provisions, say the MEPA regulations are long overdue for an update.
Mass Audubon is asking for streamlined MEPA reviews of wetlands restoration projects to reduce delays and address climate change and resiliency goals, said Heidi Ricci, Mass Audubon’s director of policy.
The advisory committee is expected to recommend additional changes to the MEPA regulations when it resumes meeting after Labor Day.
“I see it having potential benefits for the communities, but also for developers in some instances,” Ricci said. “Getting input from the community early on offers the opportunity to consider those suggestions before a lot of money has been spent on a final design.”
