Regulations and Legal Cases

We live in a nation of laws and regulations, and the rule of law is paramount. Probably 90% to 95% of all state and local permits go uncontested. A few of those that are appealed or go to court may set precedents or elucidate how the process does or should operate.

In Massachusetts, most environmental permits are issued by local (municipal) government. If a local decision is challenged, whether it stands up in court depends upon how well the municipal permit decision is written, how well a town bylaw or regulations are written, and whether the decision is adequately supported by the town or state regulations. A town denial of an activity without any justification in the context of laws and regulations may be overturned as “arbitrary and capricious” on appeal. Denials or special conditions must always be justified. Town’s cannot deny a project because they do not like the applicant or do not like the project. Either a project is allowable (in some form) based on the regulations and bylaws, or it is not allowable. The trend during the past thirty years in the US has been to have ever increasingly detailed bylaws, regulations, standards, performance criteria, and definition of terms so that both sides understand what is allowed and not allowed, and to reduce the possibility of decisions going to court, and if they do, not being judged as arbitrary and capricious.

There is a misconception by some citizens that at trials dealing with the environment, scientists can be hired to refute the soundness of a regulatory decision. Consider this fictitious example: Suppose, a town has a wetland bylaw that states that creosote pilings cannot be used on docks. Regulations like this generally reflect the best available scientific information at the time, and for this case presume there was evidence that showed creosote leaching from pilings accumulated in shellfish or adversely affected their growth or survival. Now, suppose someone wanted to use creosote pilings because other options were more expensive. Suppose further that several scientists claim that not enough creosote leaches from these pilings to affect shellfish.

Could the local decision be overturned? Probably not. Scientific information is always being updated and revised. Regulators cannot wait for definitive answers for all scientific questions to be answered. If the regulations state that no creosote pilings area allowed based on available scientific information at the time, that is a sound basis of a legal decision, No scientific testimony will refute what the regulations say. Of course, new scientific information can be the basis of revising regulations, but once they are adopted, these are the rules that everyone must follow until the regulations are again revised.

On the other hand, if regulations are poorly written or ambiguous, scientific testimony can be important.

Consider these three possible regulations:
a) no dock may be built over important shellfish habitat
b) no dock may be built in important shellfish habitat identified in the Town of ____ shellfish bed survey report of March 20, 2000
c) no dock may be built where harvestable shellfish or seed stock exceed 5 per square yard

Regulation a) offers many pitfalls if the regulations lack a precise definition of “important shellfish habitat.” Regulations b) and c) are less ambiguous. Regulation c), however, may be problematic if an area is over-fished prior to a survey. And how is the term “harvestable shellfish” defined? The best approach may be regulation b) with the understanding that maps should be prepared based on existing and historical information and well defined criteria. If this approach were selected, the town may also want an appeal process for the maps, and want a recommendation from the shellfish warden on specific projects. The goal in regulations is to eliminate terms and criteria that are ambiguous or hard to implement to make the regulations fair and equitable to all.

If the process of creating sound and defensible regulations sounds complicated, it is. Regulations should always be developed by individuals familiar with the process and must always be reviewed by the municipality’s lawyer.

Two interesting legal cases relating to docks and how the legal process works, and nuances of the law are illustrated below. One case relates to Chapter 91 permitting, the other case relates to a local wetland bylaw.

MA SJC decision: Barnstable Con Com cannot deny a dock under the “Public Trust Doctrine”, but can deny under other portions of wetland bylaw.

Case was dismissed because the abutters failed to use the words “we wish to intervene” in their comment letter to DEP Waterways on a Chapter 91 permit.