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Massachusetts Becomes First State to Require Developers to Quantify and Mitigate Greenhouse Gas Emissions

May 9, 2007

Massachusetts has become the first state to require state agencies and private developers to assess greenhouse gas (GHG) emissions in their environmental review documents.[1] Massachusetts’ policy, issued on April 23, 2007, requires developers to quantify direct and indirect GHG impacts in environmental impact reports (EIRs) prepared under the Massachusetts Environmental Policy Act (MEPA).[2] Developers must also identify measures to avoid, minimize, or mitigate GHG emissions associated with their projects.

Environmental Review under MEPA

MEPA is modeled on the National Environmental Policy Act (NEPA), and requires state agencies to assess the environmental impacts associated with their projects and permitting decisions. MEPA review is required for projects that are undertaken or funded by state agencies, as well as for private party projects that require state agency approval.[3] MEPA requires state agencies or permit applicants to prepare an EIR for certain types of actions.[4] As a threshold matter, certain project categories with known significant environmental effects always require an EIR.[5] For other projects with lesser environmental consequences, the Secretary of Environmental Affairs determines whether an EIR is necessary based on an initial threshold assessment.[6] Unlike NEPA, MEPA has a substantive component that requires agencies to make a finding “that all feasible measures have been taken to avoid or minimize” environmental impacts.[7]

The Massachusetts GHG Policy

Under the new GHG Policy, the following project categories are now required to quantify GHG emissions and identify GHG mitigation measures:

  • Projects where a state agency is the project proponent;
  • Projects funded by a state agency;
  • Privately-funded projects requiring a state air permit;
  • Privately-funded office projects generating 3,000 or more new vehicle trips per day;
  • Privately-funded mixed-use projects with 25% office space generating 6,000 or more new vehicle trips per day; or
  • Other privately-funded projects generating 10,000 or more new vehicle trips per day.

EIRs prepared under the new policy must quantify both direct and indirect emissions of the six GHGs covered by the Kyoto Protocol: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulphur hexafluoride.

The GHG Policy takes effect immediately. The Executive Office of Energy and Environmental Affairs (EOEEA) is developing a standard protocol for GHG assessments. The protocol is expected to be available for public review by July 1, 2007. Until that time, EIRs will not be required to assess GHG emissions, but they will be required to incorporate measures to mitigate such emissions. In a FAQ on the GHG Policy, the EEOEA stated that mitigation measures could include the following “well-recognized emissions reduction measures”:

  • Energy efficiency improvements in buildings, including: lighting, energy management systems, insulation, HVAC technology, windows, water heating technology, roofing and other building materials;
  • Layout of the site and building orientation to make the best use of natural light, natural heating and cooling, and solar energy potential;
  • Incorporation of low impact development techniques (including green roofs) to reduce the amount of asphalt and provide greater shading;
  • Transportation demand management, including locating the project near mass transit, access to shuttle or bus services, ridesharing programs, and bicycle and pedestrian accommodations;
  • On-site renewable energy and combined heat and power generation;
  • Use of clean and alternative fuels; and
  • Systems for on-site reuse and recycling of construction and demolition materials and recycling occupant waste materials.[8]

Some commentators expect that other states will join Massachusetts and require GHG assessments in environmental review documents. Indeed, in California, there are a number of pending lawsuits attempting to force agencies to assess GHG emissions and other climate change impacts in environmental review and land use planning documents. Please see the related article in this edition of Environmental News for additional detail on the California litigation.

[1] Massachusetts Executive Office of Energy and Environmental Affairs Greenhouse Gas Emissions Policy (Apr. 23, 2007).

[2] MEPA is found at Mass. Gen. Laws, ch. 30, § 61, et seq.

[3] Id. at § 62A. Unlike some state environmental policy acts, MEPA does not apply to local actions. See, e.g., RCW § 43.21C.030.

[4] EIRs are analogous to environmental impact statements (EISs) under NEPA.

[5] 30 Mass. Code Regs. 11.03.

[6] Id.

[7] Mass. Gen. Laws ch. 30 § 61.

[8] See GHG Policy, supra, n.1.

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