Update Highlights:

• The Massachusetts District Court for the District of Massachusetts has released an Order allowing for renewed in-person proceedings in limited cases.

• The Supreme Judicial Court issued new orders last week spelling out the logistics for public attendance at courthouses set to reopen on July 13. Members of the public will be subject to screening, including temperature checks, and will be barred from entry if they fail to wear a mask or fall into high-risk categories such as a COVID-19 diagnosis, living with someone with COVID-19, or awaiting test results for the disease.

• The high court also made clear that the administration of oaths and affirmations of witnesses may be done remotely, addressing an ambiguity complicating virtual hearings.

This and other updates on the Commonwealth’s response are collected on its website and the separate court system site.  Here we review impacts to clients with pending matters in the state and federal courts, ongoing business operations in the Commonwealth, enforcement considerations, and environmental compliance deadlines.

Massachusetts Reopening Plan

Boston joined the rest of the Commonwealth in Phase 3 of its four-phase reopening plan on July 13, pursuant to Governor Baker’s COVID-19 Order No. 43. Following the declaration of a state of emergency on March 10, 2020, and a series of orders that closed non-essential businesses, advised residents to stay at home, and prohibited gatherings of more than 10 people (actions that that effectively shut the Commonwealth down for two months), Governor Baker issued a comprehensive plan to open the Massachusetts economy on May 18, 2020. The plan contains four sequenced phases, as described in the Administration’s “Reopening MA Report.” This report provides detail on allowed commercial activities in each of the phases, which are called “start”, “cautious”, “vigilant” and “new normal.” 

Citing public health data that indicates some public health successes in Massachusetts, despite surging virus cases in more than half of the other states, Phase 3 commenced on July 6 including the reopening of fitness centers and health clubs, museums and aquariums, movie theaters and performance halls (at limited capacity), and casinos with limitations. The Phase 3 start date in the City of Boston was slightly delayed, and began on July 13. A list of which business can re-open during each phase, and under what restrictions, is maintained here.

Each re-opening phase is expected to last approximately three weeks, but the duration depends on COVID-19 public health data trends. As such, and given the potential for changes to that timeline or reversals, businesses should closely monitor the Commonwealth’s “Reopening Massachusetts” website for additional updates.

Public schools remained closed through the duration of the school year, with most childcare facilities also closed through the end of June. The Massachusetts Department of Elementary and Secondary Education (“DESE”) released its “Initial Fall Reopening Guidance” memo on June 25, which outlines various parameters that will govern Fall 2020 reopening plans for schools. Teachers unions in Massachusetts have begun negotiating with DESE regarding specific school re-opening plans, which remain in flux, District-specific, and subject to debate.

State Courts

State Courts Began Reopening on July 13. Through a series of orders that updated the original closures and restrictions, the SJC previously closed the state courts to the public except to address emergency matters that cannot be resolved through videoconference or telephone hearing, through at least July 1, 2020. On June 25, the SJC issued its “Third Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (coronavirus) Pandemic.” This latest order re-opened state courthouses beginning on July 13, under a phased approach.

The SJC’s order directs trial courts to determine what matters they will begin to hear in person on July 13, and to further expand in-person hearings beginning on August 10. The order directs courts to first prioritize emergency matters, then scheduled in-person proceedings (including bench trials), with additional categories lower on the priority list for entry into courthouses. The order identifies which individuals may access courts under the reopening plan. The order also permits cell phones and other devices in courtrooms given increased reliance on electronic information to facilitate communications and proceedings during the pandemic.

The SJC spelled out more of the logistics of the reopening in its Second Order Regarding Public Access to State Courthouses & Court Facilities, became effective on July 13 and replaces its March 13 order. The Second Order details categories of people prohibited from accessing courthouses, including people who have tested positive for COVID-19, are experiencing symptoms, are awaiting test results, have been advised to self-quarantine by a doctor, or who refuse to submit to courthouse screening and wear a mask. Screening will include questions regarding these categories and a non-contact temperature test. The order provides instructions to be followed by anyone prohibited from accessing the courthouse as a result of these rules, which largely entail contacting clerk’s offices. The Second Order further requires face masks and physical distancing inside the building as well as a directive to follow markings on the floor as guidance.

Civil Cases are Unstuck as Tolling of Civil Statutes of Limitation and Court Deadlines Ends. Civil cases that have been effectively stuck since the courthouse closures will benefit from the opening of courthouses, continued virtual court business, and the SJC’s June 25 order reaffirming that tolling of civil statutes of limitations will cease on June 30, and that those deadlines “will not be tolled any further unless there is a new surge in COVID-19 cases in the Commonwealth and the SJC determines that a new or extended period of tolling is needed.” Criminal statutes of limitation are tolled through September 14, due to the lack of grand jury availability. The SJC reiterated explicit instructions about how the new deadlines are to be calculated.

The SJC also eased the utilization of virtual proceedings by explicitly authorizing the administration of oaths and affirmations of witnesses remotely, suspending any rules that would have required such oaths to be administered in person.

Jury Trials Delayed Until at Least September; Bench Trials May Begin Sooner and/or Virtually. While bench trials resumed beginning on July 13, jury trials in both civil and criminal cases scheduled through September 4 are continued to no earlier than September 8, 2020. For any in-progress trial at the time of the courthouse closure, a mistrial was declared.

Electronic Service Now Permitted in Many Instances. Parties in civil cases may use email for service of most pleadings under Mass R. Civil P.5(b) where the email addresses of the lawyers have been disclosed in previous filings with the court. The SJC’s order on March 30 cautioned attorneys that they must periodically check spam and quarantine folders to make sure they have not missed an email, but prohibited email service for summons and complaint, attachment, trustee process, third-party complaints, and subpoenas. This means that ongoing civil litigation is the main beneficiary of these rules, as new complaints, third-party complaints, and other more complicated matters will continue to require traditional service consistent with the additional consequences associated with those matters. In addition, pro se litigants cannot be served by email unless they assent.

Electronic Signatures. The SJC issued an order permitting the use of electronic signatures in Massachusetts Courts effective April 7, 2020. The order applies to “all courts and case types” and to attorneys and self-represented parties alike. Electronic signatures may take the form of a scanned signature, an image representing the signature, or a "/s/ name of signatory" block (as is common practice in federal courts). Following the order, electronic signatures are permitted in all Massachusetts courts “unless the court specifically orders otherwise.” Electronic signatures also are acceptable for affidavits made under oath, although the party must make efforts to secure an original signature as soon as practicable after filing with the court.

Virtual Oral Arguments and Tolling at SJC and Appeals Court. Although all arguments at the Appeals Court in April were deemed submitted on the briefs on file without any oral argument unless otherwise ordered by the Court, after a pilot test in April, the Appeals Court has begun holding oral arguments by Zoom video conference with a live stream to the Appeals Court’s YouTube channel. In the Appeals Court’s May 26, 2020 Administrative Order 20-1, the Appeals Court extended virtual arguments through July, while noting that the courthouse is closed through June 1, and will likely remain closed through the end of June. In a separate Administrative Order 20-2 issued on the same day, the Appeals Court made explicit the tolling of deadlines for notices of appeal and other internal Appeals Court submission deadlines. The Appeals Court set new deadlines for notices of appeal and statutory deadlines based on SJC’s order of May 26, while setting three filing deadlines for briefs delayed by the tolling, based on the original applicable deadline. Notably, there is no change for briefs and appendices due on or after June 1, 2020, which means that litigants in such cases will need to adhere to their current schedules barring any further orders. Other court deadlines that would expire between March 17 and May 31 were extended to June 15, 2020, but that deadline has now passed. The SJC will also be holding oral arguments by video conference with public access available.

Trial Court Helpline. The Trial Court has established a help line that the public and attorneys can call to ask general questions about civil and criminal cases and help them navigate the court system while it Is experiencing COVID-19 disruptions. The Help Line is staffed from 8:30 a.m. to 4:30 p.m., Monday through Friday, and can be reached by calling 833-91COURT. For emergency matters, the Trial Court has directed that litigants and lawyers should call the clerk or register office at the court. Court contacts are located on the Courthouse Locator page available here.

Federal Courts

Federal Courts are Open With Restrictions. The Federal District Court for the District of Massachusetts remains open with restrictions on visitors and limited counter hours for clerks (9 a.m. to 2 pm). By the Court’s General Order 20-21, all jury trials scheduled to begin before September 8 are postponed pending further order of the court. In order to keep the work on the court moving, judges have pivoted to holding hearings and conferences by telephone and video and issued a public notice regarding public access to these teleconferences and videoconference hearings. On July 15, the Court issued General Order 20-31 that modifies the Court’s prior COVID-19 orders and paves the way for increased in-person proceedings in the District Court. Under the Order, the Court expects to conduct “a limited number of in-person, non-jury proceedings,” with specific protections in place, including social distancing in courtrooms and a mask requirement for all participants, except for witnesses under oath who will testify behind a Plexiglass screen. A mandatory health screening self-assessment also is required before visiting the Court. While most hearings and other matters will continue to be heard virtually, certain non-jury proceedings may be scheduled in-person in cases where “(1) further delay may harm the interests of justice and (2) the law does not permit video proceedings or the requisite consents cannot be obtained.” The Court does not expressly define such cases, but they may include a range of civil and criminal cases where prompt proceedings are necessary. First Circuit Court of Appeals Extends Deadlines But Not for Filing of Appeals. Following the cancellation of the April sitting of the First Circuit Court of Appeals, this court too is holding oral arguments by video conference through the June session. In an explanation on its website, the First Circuit provided a link to its YouTube channel for live viewing and its archive of audio recordings of arguments. The court also suspended its requirement that appendices to brief be filed only in paper form, while anticipating paper filings at a later date. The clerk’s office is not accepting in-person filings and filers are directed to use the first-floor drop-box.

Local Governments

Cities and towns have taken a variety of steps to confront the coronavirus in their municipalities that will interrupt day-to-day business in a variety of ways, including slowing permitting, responses to public record requests, and ongoing discussions on subjects outside the current crisis. Municipalities have declared states of emergency, closed town and city halls, and postponed municipal board and committee meetings. As towns begin to hold town meetings, some are doing so outdoors or in large open spaces, while limiting in-person public access in some cases and facilitating public participation by virtual means.

On April 3, the Governor signed legislation that addressed constructive approvals, scheduling and continuance of annual town meetings, implementation of budgets, and other time-sensitive financial issues. Paralleling the extensions for state permits and appeals, the legislation allows local hearings to be continued during the state of emergency, although there is language that appears to provide boards and committees the discretion to hold virtual meetings. The legislation:

• Suspends the requirement for a local board to act commence a hearing within a specified period of time as of March 10, 2020 to be resumed 45 days after termination of the state of emergency (or later if provided by statute or rule);

• Suspends constructive approvals when a local board fails to act within specified period of time until 45 days after the state of emergency ends (or later if provided by statute or rule);

• Extends deadlines by which local permit applications are to be heard and acted upon, with that period resuming 45 days after the state of emergency ends (or later if provided by statute or rule);

• Continues all hearings for which a hearing was held before March 10, 2020 but not concluded until the first hearing date of the permit granting authority after the state of emergency ends, but not later than 45 days after the termination of the order; and

• Suspends the time for required recording of local permits or approvals with the Registry of Deeds.

In order to aid municipalities to carry on their business, on March 12, Governor Baker issued an order suspending some provisions of the state’s Open Meeting Law (G.L. c. 30A, § 20). This order eased the requirement to meet in a public place and permitted remote participation by all members of a meeting of a public board or committee provided the public has a way to monitor the proceedings in real time (e.g. telephone, internet, etc.). Where a municipality cannot accomplish real-time participation “due to economic hardship and despite best efforts” the municipality must post the transcript or recording on its website. Based on this order, many municipalities are rescheduling certain town meetings and hearings to occur by video or audio conference. Legislation subsequently codified the governor’s order.

Environmental Compliance Considerations

During the public health crisis presented by COVID-19—and the mandatory business closures resulting from it—businesses will need to keep a careful eye on environmental compliance and permitting. Environmental compliance requirements remain in effect, meaning that businesses will need to continue compliance with permits, environmental regulations, and other environmental requirements that apply to their operations.

Massachusetts and MassDEP

As of the date of this publication, the Massachusetts Department of Environmental Protection (MassDEP) has not issued broad guidance or policy updates regarding environmental compliance, enforcement, or flexibility mechanisms related to challenges presented by COVID-19. On a webinar on March 31, MassDEP Commissioner Marty Suuberg said that he did not expect to issue a document similar to US EPA’s enforcement memorandum discussed below. Instead, MassDEP has issued a sector-specific FAQ for Public Water Suppliers and Wastewater Service Providers, and has suspended bottle redemption enforcement. But apart from these limited measures MassDEP has not yet provided guidance or altered compliance requirements. A list of COVID-19 Guidance and Directives issued by state agencies is maintained here; businesses may want to check this page periodically as new items are added on a near-daily basis.

With many government offices closed and staff working remotely, including much of the Massachusetts Department of Environmental Protection (MassDEP), it may be more difficult for some entities to carry out routine permitting and compliance actions. Nonetheless, Massachusetts businesses should assume that environmental compliance and permitting requirements continue to apply.

Through his initial COVID-19 Order No. 17, Governor Baker sought to ease the pressure of permitting and appeal deadlines under the authority of the Executive Office of Energy and Environmental Affairs and the Executive Office of Housing and Economic Development. On July 2, the governor issued COVID-19 Order No. 42, which rescinded Order No. 17 and restarted permitting and appeal deadlines:

• Constructive approvals or denials (defined as those approvals or denials that take effect if the state does not act within a specified time) that would have issued between March 10 and July 1 but were suspended under Order No. 17 are now deemed to be issued on August 17, 2020 unless the state permitting agency otherwise acts before that date.

• Hearings that a state permitting agency would have been required to begin between March 10 and July 1 but were suspended under Order No. 17 are required to commence on or before August 10, 2020.

• Decisions and requests that a state permitting agency would have been required to issue or make between March 10 and July 1 but were suspended under Order No. 17 must be issued by the permitting agency on or before August 10, 2020.

• Appeal rights of any person aggrieved by an appealable state permitting decision that would have expired between March 10 and July 1 but were suspended under Order No. 17 are extended to August 10, 2020. Any appeal right that expires after July 1, 2020 must be exercised by the regular deadline or by August 10, 2020, whichever is later.

• Expiration dates of state permits remain tolled during the state of emergency. Any permitting approval valid as of March 10, 2020 will not expire during the state of emergency, and the new expiration date for such an approval will be calculated by determining how many days remained in the permit effectiveness as of March 10 and adding that number of days to the date of the eventual termination of the state of emergency. This tolling protection is not extended to permit holders who were in violation of their permits as of March 10.

Federal and U.S. EPA

Following the filing of several law suits by environmental advocacy groups and a coalition of states, EPA announced plans to terminate guidance it had issued on March 26, 2020 entitled: “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” with the termination effective August 31, 2020.

EPA’s guidance addresses a range of issues relating to environmental enforcement and compliance and COVID-19. EPA warned in a June 29 memo that it “may terminate this temporary policy (i.e., indicate it does not apply to future noncompliance) on a state or national basis, in whole or in part, at any earlier time, taking into account changing conditions in a state or region of the country, including as appropriate the expiration or lifting of “stay at home” orders in a state, the status of federal and/or state COVID-19 public health emergency guidelines, and/or other relevant factors or considerations.” Following termination, EPA indicates that it will no longer base any exercise of enforcement discretion on the temporary policy for any noncompliance that occurs after the termination date.

EPA’s temporary enforcement guidance addresses situations where EPA will apply enforcement discretion to pandemic-related non-compliance, where regulated entities follow the conditions set forth in the policy. Eligibility for the benefits of the policy depends on meeting the articulated conditions, including adequate documentation.

EPA conditions application of its enforcement discretion on a demonstration that all efforts have been be made to comply with environmental obligations. Where that is not “reasonably practicable” due to a COVID-19 related reason, documentation is critical. More specifically, EPA’s policy sets forth the following expectations:

• Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;

• Identify the specific nature and dates of the noncompliance;

• Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;

• Return to compliance as soon as possible; and

• Document the information, action, or condition.

EPA’s policy, which is retroactive to March 13, 2020, covers the three most common instances of expected non-compliance: civil violations, routine compliance monitoring and reporting, and settlement agreement or consent decree obligations. The policy does not apply to CERCLA or RCRA Corrective Action sites, emergency reporting of accidental releases, pesticide product imports, state or tribal matters, or criminal actions.

Importantly, EPA’s guidance does not relieve or eliminate any compliance obligations or deadlines; rather, it indicates how EPA will take certain enforcement actions in light of COVID-19 impacts. The policy is detailed and, in some instances, nuanced, and we recommend careful assessment to determine whether it may be applicable to your operations. We have published a thorough analysis of EPA’s COVID-19 policy here.

A coalition of environmental advocacy groups filed a lawsuit in April challenging the policy, and in May 13 nine states (New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia) filed a similar lawsuit arguing that EPA lacks authority to implement what the lawsuit calls an “effective waiver” of federal environmental law.

Given the impending termination of EPA’s COVID-19 policy, the several pending challenges to the policy, and the potential for increased outside scrutiny, businesses should remain diligent in their environmental compliance efforts and work with counsel to determine how to address any compliance challenges that arise during this period, whether related to COVID-19 or otherwise. EPA’s withdrawal of the guidance may render these challenges moot but the question of an as-applied challenge to actions EPA has taken under the policy is still a possibility.