Opinion
20-P-1167
01-07-2022
TOWN OF STOUGHTON v. SECRETARY OF THE EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal concerns the south coast rail project, a long-planned project to restore commuter rail service to southeastern Massachusetts. As part of a review of the project pursuant to the Massachusetts Environmental Policy Act (MEPA), G. L. c. 30, §§ 61-621, the Secretary of the Executive Office of Energy and Environmental Affairs (Secretary) certified a 2013 final environmental impact report (2013 FEIR) and a 2018 final supplemental environmental impact report (2018 FSEIR) as complying with MEPA. The plaintiff, the town of Stoughton, brought consolidated actions in the Superior Court challenging the Secretary's decisions on the 2013 FEIR and 2018 FSEIR as arbitrary and capricious. On cross motions for a judgment on the pleadings, a Superior Court judge affirmed both decisions. Stoughton now appeals from the Superior Court judgment, and we affirm.
Background.
In 2007, the Governor announced an action plan to restore commuter rail service to southeastern Massachusetts. In 2008, consistent with the Governor's plan, the Executive Office of Transportation (EOT) filed an environmental notification form (ENF) with the Secretary to commence MEPA review. See G. L. c. 30, § 62A (MEPA review commences with proponent of project notifying Secretary) . The ENF analyzed rail options running through Attleboro, Middleborough, and Stoughton. The Secretary reviewed the ENF and, in 2009, determined that the project required the completion of an environmental impact report (EIR) . See Id. (Secretary shall determine whether EIR is required). The Secretary set the parameters for the EIR by (1) requiring further evaluation of the Attleboro and Stoughton routes and (2) eliminating the Middleborough route from review on the basis that it was "impracticable due to its low projected ridership numbers." See id. (Secretary shall determine "form, content, level of detail and alternatives" required for EIR).
The ENF also analyzed enhanced bus and rapid bus options.
The Secretary also eliminated a combined Attleboro/Middleborough route from review but required further evaluation of the enhanced bus and rapid bus options, as well as a variation of the Stoughton route referred to as the Whittenton variation.
By 2011, EOT had merged into the Massachusetts Department of Transportation (MassDOT), and MassDOT became the proponent that submitted a draft EIR. See 301 Code Mass. Regs. § 11.07(3) (2008) (if Secretary requires EIR, proponent shall first prepare draft EIR unless otherwise instructed). The draft stated a preference for the Stoughton route but did not state a preference for the mode, i.e., diesel or electric. The Secretary agreed that MassDOT had made the case for the Stoughton route to be brought forward as the preferred plan, stated that electric was preferrable to diesel from an air quality perspective, and directed MassDOT to submit a final EIR focusing on a Stoughton electric plan. See 301 Code Mass. Regs. § 11.07(4) (2008) (if Secretary determines that draft EIR is adequate, proponent shall prepare final EIR unless otherwise instructed, and Secretary may limit scope thereof). In response, MassDOT submitted the 2013 FEIR, which concluded that there was "no less environmentally damaging alternative" than the Stoughton electric plan, and the Secretary certified the 2013 FEIR as complying with MEPA. See G. L. c. 30, § 62C (Secretary shall issue written statement indicating whether EIR complies with MEPA).
In the years that followed, MassDOT learned that the timeline for implementing service under the Stoughton electric plan would be significantly longer than originally anticipated. In 2017, to alleviate some of the harm associated with the delay, MassDOT submitted a notice of project change seeking to construct the south coast rail project in two phases. See 301 Code Mass. Regs. § 11.10(1) (2008) (proponent shall file notice of project change with Secretary). During phase one, MassDOT proposed (1) using the existing Middleborough/Lakeville commuter rail line from Boston to Middleborough; (2) improving an existing track that runs between Middleborough to Taunton; and (3) improving the "southern triangle," an area of tracks that run from Taunton to New Bedford with a split off to Fall River. This would result in the provision of interim service to southeastern Massachusetts through Middleborough. During phase two, MassDOT proposed connecting the existing Stoughton commuter rail line to the southern triangle, thereby fully implementing the Stoughton electric plan and providing service to southeastern Massachusetts through Stoughton.
Another round of EIRs followed. See 301 Code Mass. Regs. § 11.10(8) (2008) (Secretary shall determine if project change warrants further MEPA review by submission of new ENF or supplemental EIR). In 2018, MassDOT submitted a draft supplemental EIR analyzing the new elements of phase one that were not previously analyzed in the 2013 FEIR. The Secretary reviewed the draft supplemental EIR, certified that it complied with MEPA, and directed MassDOT to prepare a final supplemental EIR. In response, MassDOT submitted the 2018 FSEIR, which the Secretary again certified as complying with MEPA.
Following a Superior Court judgment affirming the Secretary's decisions to certify the 2013 FEIR and 2018 FSEIR as complying with MEPA, Stoughton brought this appeal challenging the judgment with respect to both EIRs. At oral argument, however, Stoughton withdrew its arguments regarding the 2013 FEIR. Accordingly, we turn our attention to the Secretary's approval of the 2018 FSEIR.
Discussion.
Stoughton contends that it was arbitrary and capricious for the Secretary to consider phase one as part of the same transit project as the Stoughton electric plan. Specifically, Stoughton argues that phase one involves the construction of a different commuter rail line and, thus, is a new and separate transit project. Stoughton further argues that by considering phase one as part of the same transit project as the Stoughton electric plan, the Secretary allowed MassDOT to avoid the requirement that certain work commence on a project within five years of the publication of the notice of the availability of the final EIR. See 301 Code Mass. Regs. § 11.10(3) (2008). Stoughton asserts that the Secretary's decision on the 2018 FSEIR created a fiction whereby the Stoughton electric plan is "[left] on the table indefinitely" while MassDOT works on the southern triangle and providing service to southeastern Massachusetts through Middleborough.
Pursuant to 301 Code Mass. Regs. § 11.10(3), "notification of [c]ommencement of [c]onstruction" or "commencement of non-construction related work or activity, including expenditure of funds for final design, property acquisition, or marketing," must occur with five years of the publication of the notice of the availability of the final EIR.
In considering Stoughton's arguments, we give appropriate deference to the Secretary who "has broad discretion under MEPA to facilitate environmental planning for proposed projects that will require action by Commonwealth agencies." Allen v. Boston Redev. Auth., 450 Mass. 242, 254 (2007). "Nonetheless, [t]he process by which the information is gathered, identified, and applied to the statutory standards under MEPA must be logical, and not arbitrary or capricious" (quotation and citation omitted) . Id. Under an arbitrary or capricious review, we look to whether there was a rational basis for the Secretary's decision. See Sierra Club v. Commissioner of the Pep't of Envtl. Mgt., 439 Mass. 738, 748 (2003).
In concluding that the Secretary's decision was neither arbitrary nor capricious, we consider two factors: (1) the fact that much of the infrastructure needed for the Stoughton electric plan will be constructed during phase one and (2) the reasoning behind MassDOT's phased approach, which was in part to reduce overall costs associated with the Stoughton electric plan. First, the southern triangle will be improved during phase one. This work was originally part of the original Stoughton electric plan. The southern triangle comprises fifty-six percent of the track work needed for the Stoughton electric plan and involves reconstructing 17.3 miles of track from Taunton to New Bedford and 11.7 miles of track from Berkley to Fall River. Phase one also involves the construction of two new layover stations in New Bedford and Fall River and two new stations, King's Highway and Whale's Tooth, all of which were proposed as part of the Stoughton electric plan and will be built as designed in the Stoughton electric plan.
Two additional stations that were proposed as part of the Stoughton electric plan will be constructed during phase one but with some design modifications.
Second, MassDOT learned that the timeline for implementing service under the Stoughton electric plan would be significantly longer than originally anticipated, especially because the "time required to complete final design and obtain environmental permits . . . [would be] substantially longer for the Stoughton to Taunton segment than for the [s]outhern [t]riangle." MassDOT also knew that costs would continue to rise with inflation. Thus, by commencing construction on the southern triangle and connecting it to Boston through Middleborough while simultaneously obtaining environmental permits for the Stoughton to Taunton segment, MassDOT could expedite providing commuter rail service to southeastern Massachusetts and also "reduce overall project costs by starting construction sooner."
Given that much of the infrastructure needed for the Stoughton electric plan will be constructed during phase one and that MassDOT decided to proceed with a phased approach to reduce overall project costs associated with the Stoughton electric plan, we are not persuaded by Stoughton's argument that phase one involves a new and separate transit project. We conclude that the Secretary's decision had a rational basis and that it was neither arbitrary nor capricious for the Secretary to consider phase one as part of the same transit project as the Stoughton electric plan.
Judgment affirmed.
The panelists are listed in order of seniority.