Kain, et al. v. Department of Environmental Protection (Lawyers Weekly No. 10-066-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11961   ISABEL KAIN & others[1]  vs.  DEPARTMENT OF ENVIRONMENTAL PROTECTION.       Suffolk.     January 8, 2016. – May 17, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Department of Environmental Protection.  Environment, Air pollution.  Regulation.  Administrative Law, Regulations.  Declaratory Relief.  Statute, Construction.       Civil action commenced in the Superior Court Department on August 12, 2014.   The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Jennifer K. Rushlow (Susan J. Kraham, of New York, & Veronica S. Eady with her) for Conservation Law Foundation & another. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Phelps Turner & C. Dylan Sanders, for Isabel Kain & others, were present but did not argue. The following submitted briefs for amici curiae: Stephanie R. Parker for Clean Water Action & others. Edward J. DeWitt for Association to Preserve Cape Cod. Arthur P. Kreiger & Jessica A. Wall for William R. Moomaw & others. Robert J. Muldoon, Jr., & Thomas Paul Gorman for David A. Wirth.     CORDY, J.  In this case, we are asked to decide whether the Department of Environmental Protection (department) has fulfilled its statutory mandate under G. L. c. 21N, § 3 (d) (§ 3 [d]), which provides that the department “shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.”  By the terms of the enabling legislation, the Global Warming Solutions Act, St. 2008, c. 298 (act), these regulations were to be issued by January 1, 2012, to take effect on January 1, 2013, and to expire on December 31, 2020.  See St. 2008, c. 298, § 16.  The department failed to take action by the statutory deadline, and in November, 2012, a group of residents submitted a rulemaking petition to the department seeking the issuance of regulations pursuant to § 3 (d) to limit greenhouse gas emissions[2] in the Commonwealth. The department held a public hearing on June 13, 2013, to consider the petition.  Shortly thereafter, it issued a written statement addressing the petitioners’ concerns and concluding that it had complied with the requirements of the act, including those set forth in § 3 (d).  The statement also referenced […]

Read more...