The regulations implementing the Massachusetts Environmental Policy Act (MEPA) were recently revised, effective May 10, 2013, to codify the MEPA office’s existing practice of evaluating greenhouse gas emissions associated with projects undergoing its review. 

Generally speaking, MEPA’s jurisdiction over private projects extends to those receiving financial assistance, land transfers or a permit, license, certificate, variance, approval or other entitlement for use from a state agency. Whether and what level of review is required for a project within MEPA’s jurisdiction depends on which, if any, of the regulatory review thresholds a project triggers. Depending on the threshold triggered, projects proponents must prepare either an environmental notification form (ENF) or an ENF and environmental impact report (EIR).

Since 2007, the MEPA office has addressed greenhouse gas (GHG) emissions in accordance with its Greenhouse Gas Policy and Protocol, last revised in 2010. This required proponents of projects requiring an EIR to: (i) identify a project baseline; (ii) calculate estimated GHG emissions from the project baseline condition; and (iii) calculate estimated emissions reductions based on mitigation measures by comparing project alternatives to the baseline. The GHG Policy remains an important guidance document that includes direction on methodologies for quantifying emissions and suggestions for mitigation projects. More information about the policy is available athttp://www.bdlaw.com/news-878.html.

The revisions to the MEPA regulations, 310 CMR 11.00 et seq., create new thresholds for GHG emissions that are equivalent to permitting requirements recently established by the U.S. Environmental Protection Agency under the Clean Air Act. Proposed projects that trigger either of the following thresholds will be required to prepare both an ENF and EIR:

• Construction of a New Stationary Source with federal potential emissions, after construction and the imposition of required controls, of 100,000 tons per year of GHGs based on CO₂ equivalent.
• Modification of an existing Stationary Source with federal potential emissions that collectively will result, after construction and the imposition of required controls, of 75,000 tons per year of GHGs based on CO₂ equivalent.

These and other thresholds in the MEPA regulations are intended to identify categories or aspects of projects that, by their nature, size or location, are likely to directly or indirectly cause “Damage to the Environment,” the definition of which has been expanded to reflect additional climate change impacts, including reduction of groundwater levels, impairment of water quality and increases in flooding or stormwater flows.

The revised regulations also incorporate aspects of the Massachusetts Global Warming Solutions Act of 2008, for instance, providing that “the reasonably foreseeable climate change impacts of a project, including its additional GHG emissions, and effects, such as predicted sea level rise, are within the subject matter of any required permit, land transfer or financial assistance.”

Going forward, the next significant revisions to the MEPA regulations will likely relate to the implementation of either (i) the Massachusetts Ocean Management Plan, for which the Office of Coastal Zone Management issued proposed regulations earlier this year that would implement the Plan largely through MEPA and other existing permitting processes; or (ii) the Massachusetts Department of Environmental Protection’s streamlining regulatory initiatives.