Matt Connolly

The U.S. Supreme Court ended its 2023-2024 term by upending several longstanding principles in federal agency decision-making. Most notably, the court overruled the so-called “Chevron doctrine,” which for 40 years had required courts to defer to an agency’s “permissible” interpretation of unclear statutes. Now, under a new test laid out in Loper Bright Enterprises v. Raimondo, federal courts must reach the “best” meaning of a statute using “traditional tools of statutory construction” without any binding deference to the agency’s view.

Do not expect Massachusetts to follow suit.

During the Chevron era, Massachusetts courts have used a similar deferential approach to Chevron under the Massachusetts Supreme Judicial Court’s decision Goldberg v. Board of Health of Granby. Under that test, Massachusetts courts are to give “substantial deference” to an agency’s interpretation of its statutory obligations when the statute does not speak directly to the question and the interpretation offered by the agency “may be reconciled with the governing legislation.”

Matt Snell

Deference to state agencies has extended to a variety of matters impacting development and use of land. These cases include solid waste disposal via Goldberg itself and Board of Health of Saugus v. Massachusetts Department of Environmental Protection, both of which deferred to determinations related to landfill disposal by boards of health.

They also include energy, as in New England Power Generators Association Inc.  v. DEP and Town of Sudbury v. Energy Facilities Siting Board, where judges deferred to agency decisions regarding the regulation of emissions and siting of energy facilities, and environmental regulation in cases like Peterborough Oil Co., LLC v. DEP, where the court deferring to that agency’s interpretation of the definition of “oil.”

SJC Took Opposite Tack

In recent years, the U.S. Supreme Court has consistently signaled its concern over Chevron deference. According to the Loper Bright decision, the court has not relied on Chevron deference since 2016. The Massachusetts SJC has done the opposite.

Sarah Turano- Flores

Based on a review of cases in the same period, the SJC has deferred to an agency’s statutory interpretation under Goldberg at least 10 times. In fact, there has not been a case in this period when the SJC overturned an agency’s interpretation of an ambiguous statute. In the limited instances when an agency’s interpretation was invalidated, such as the 2022 Armstrong v. Theoharides decision overturning the use of municipal harbor plans to regulate development of certain coastal areas, the SJC found the applicable statute was unambiguous.

Most recently in 2023, the Secretary of the Commonwealth accused Robinhood Financial of violating the Massachusetts Uniform Securities Act by allegedly encouraging risky trading practices, thereby violating its fiduciary duty to traders on its platform in Robinhood Financial LLC v. Secretary of the Commonwealth. Secretary William Galvin’s office imposed the fiduciary duty in a rule created under a provision in the act that prohibited unethical and dishonest conduct or practices. The SJC found the act ambiguous and deferred to the secretary under Goldberg, upholding the fiduciary rule.

Joe Jannetty

Even setting aside Chevron deference and Goldberg, Massachusetts courts have historically been more deferential to state agencies than their federal counterparts. For example, federal rulemaking involves a lengthy public comment process, and courts will analyze the substance of the rules solely based on the written response-to-comments that the agencies publish. Massachusetts also requires a public comment process. But state agencies are not required to provide a written response to comments, and they may rely on new reasons for their rules during court proceedings.

If the SJC sticks with Goldberg as expected, it is likely that some rulemaking and enforcement could shift towards the state and away from federal agencies.

For example, the federal Environmental Protection Agency and state DEP have overlapping jurisdiction over surface waters, such as oceans, lakes and rivers. With a continuing trend in scaling back federal agency deference and authority (including last year’s Sackett decision, which limited EPA’s jurisdiction over certain wetlands), we could see the Massachusetts DEP take on a more active role in areas where the EPA had historically led.

Matt Connolly, Matt Snell and Sarah Turano-Flores are partners and Joe Jannetty is an associate in the real estate practice of the Boston-based law firm Nutter.

Editor’s Note: This article has been updated to correct the spelling of Matt Connolly’s name.