Conservation Law Foundation v. Energy Facilities Siting Board

The Massachusetts Supreme Judicial Court affirmed the Energy Facilities Siting Board’s certificate of environmental impact and public interest for a proposed electric substation in the East Boston section of Boston. The certificate allowed the applicant to proceed without local approvals based on “undue delay” caused by two Boston agencies, each of which refused to act until the other granted approval during an <a href="https://climatecasechart.com/case/greenroots-inc-v-energy-facilities-siting-board/">earlier appeal</a> in which the Supreme Judicial Court upheld the Board’s approval of the relocation of the proposed substation. In its decision upholding the certificate, the Supreme Judicial Court concluded that the local agencies’ “stalemate” provided a “sufficient basis” for the Board to find that the applicant met the “undue delay” threshold for considering the merits of the certificate petition. The court also rejected arguments that the Board misinterpreted and misapplied environmental justice provisions of the Next-Generation Roadmap Act as well as challenges to the equivalent of a tidelands license. In addition, the court upheld the Board’s findings that the substation was needed to meet energy requirements; was compatible with “considerations of environmental protection, public health and public safety”; and was in the public interest. Regarding environmental protection, public health, and public safety, the court noted that the earlier appeal had explored these issues “extensively,” including the issue of sea level rise. The court noted that in considering the certificate application, the Board “undertook a fresh look,” which included reviewing new testimony from the petitioners’ expert witness regarding potential vulnerability to climate change-related flooding and two new reports on sea level rise. The court found that the Board explained why the new reports supported its previous conclusions regarding flood risk and also explained its rejection of the petitioners’ proposal to use a “worst case” storm surge projection. The court ruled that the Board did not abuse its discretion by concluding that the new evidence did not warrant changing its findings.