On March 26, 2021, Governor Baker signed Chapter 8 of the Acts of 2021: An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy (“Act“), into law. The purpose of the Act is to protect communities comprised of what it refers to as “Environmental Justice (EJ) Populations” from “unfair or inequitable” environmental pollution, adverse public health impacts, and strains on natural resources resulting from private, industrial, commercial and governmental projects that damage the environment.

Environmental impacts on EJ areas are analyzed during the review process and, if significant, may result in an unfavorable review and, ultimately, denial of a proposed project.

The Act defines an EJ Population as one that meets one or more of the following four criteria: (1) annual median household income 65 percent lower than the statewide average; (2) minorities comprise 40 percent or more of the population; (3) 25 percent or more of households lack English language proficiency; and (4) minorities comprise 25 percent or more of the population, and the annual median income does not exceed 150 percent of the statewide average.

The Massachusetts Environmental Protection Agency (“MEPA”), in order to assist in the implementation of the Act, recently issued two advisory opinions, entitled “Interim Protocol for Analysis of Project Impact on Environmental Justice Populations” and “Public Involvement Protocol for Environmetal Justice Populations,” to explain the applicable process created by the Act when certain development or projects are proposed.

As the Interim Protocol explains, the Act requires that an Environmental Impact Report (“EIR”) be submitted for any project that is located within one mile of an EJ Population, or located within five miles of an EJ Population if air quality will be impacted. The EIR must contain a statement describing the nature and extent of the proposed project, its impact on the environment and public health, and the measures being utilized to minimize those impacts. The EIR must also identify any short-term or long-term environmental or public health consequences that cannot be avoided if the proposed project is undertaken, as well as any alternatives to the project that could avoid such consequences.

The Act also seeks to enhance EJ Populations’ participation in the review process, requiring that any Environmental Notification Form (“ENF”) filed with MEPA describe, in detail, the location of the project and the affected population, including identifying the languages spoken in the community.

The Act includes new notice requirements that are beyond those typically provided for MEPA review, including that all forms, including EIRs and ENFs, be provided in English and in any other languages that are spoken by the residents of an EJ Population. Meetings must be held in locations that are accessible by public transportation, with translators in attendance. Advanced notification must be made to MEPA, and to any community-based organizations in the EJ area, 45 days prior to filing. Applicants are also expected to host community meetings, maintain a project website where information about the proposed project can be downloaded, and engage in outreach to grassroots organizations, places of worship and schools.

Strict adherence to the new protocols is critical. Environmental impacts on EJ areas are analyzed during the review process and, if significant, may result in an unfavorable review and, ultimately, denial of a proposed project. Failure to comply with new notice and filing requirements may result in MEPA declining to review a project.

While the Act was passed in 2021, the protocols to be followed in the review process have only been recently implemented. These new notice and filing requirements may be significant but can be easily navigated with the right counsel. If you have a project that is subject to these new protocols, the attorneys at Moriarty Bielan & Malloy LLC have the experience and knowledge to successfully assist you through the process.