Motion for Judgment on the Pleadings in Town of Sudbury vs. Kathleen Theoharides in her capacity as Secretary for the Executive Office of Energy and Environmental Affairs for the Commonwealth of Massachusetts et al| Trellis.Law

On January 16, 2020 a Motion-Secondary was filed involving a dispute between Town Of Sudbury, and Kathleen Theoharides In Her Capacity As Secretary For The Executive Office Of Energy And Environmental Affairs For The Commonwealth Of Massachusetts, Nstar Electric Company, for Administrative Civil Actions in the District Court of Suffolk County.

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COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR DEPARTMENT OF THE
TRIAL COURT
C.A. NO. 2084CV0015 LF I

yt
TOWN OF SUDBURY,
wa i
Plaintiff, Ss Osi

Vv. cs
il
KATHLEEN THEOHARIDES, in her capacity as SECRETARY ||
OF THE EXECUTIVE OFFICE OF ENERGY AND
ENVIRONMENTAL AFFAIRS, and
NSTAR ELECTRIC COMPANY d/b/a EVERSOURCE ENERGY, NR =
Defendants.

OPPOSITION OF DEFENDANT NSTAR ELECTRIC COMPANY d/b/a EVERSOURCE
ENERGY TO THE PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
{and deemed Cross-Motion for Judgment on the Pleadings per Standing Order 1-96, (4)

L INTRODUCTION

On September 14, 2018, the Defendant Secretary of the Executive Office of Energy and

Environmental Affairs (“Secretary”) issued a Certificate on a Final Environmental Impact Report

(“FEIR” and “FEIR Certificate”), certifying that the Defendant NSTAR Electric Company d/b/a

Eversource Energy (“Eversource” or the “Company”) had satisfied the requirements of the

Massachusetts Environmental Policy Act (“MEPA”), G.L. c. 30, §§ 61-621, and its implementing

regulations at 301 CMR 11.00 et seq. (“MEPA Regulations”) and, therefore, that the Company’s

proposed project could proceed to state agency permitting. RA V:2859. The FEIR Certificate
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concluded the lengthy public review process conducted by the Secretary of Eversource’s detailed

analysis of project alternatives and measures to avoid, minimize or mitigate the potential

environmental impacts of the Company’s proposal to construct an approximately nine-mile, 115- il

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kilovolt (“kV”) underground electric transmission line. Id. The transmission line would be located

between two existing substations (a Company-owned substation in Sudbury and a substation

owned by the Hudson Light & Power Department in Hudson) predominantly along a disused

railroad right-of-way (“ROW”) owned by the Massachusetts Bay Transportation Authority

(“MBTA”) traversing portions of Sudbury, Hudson, Stow and Marlborough (the “Project”).! Id.

Tn January 2020, the Plaintiff Town of Sudbury (the “Town”) commenced this action

seeking “reversal of the Secretary’s approval of the FEIR on the basis that it was arbitrary and

capricious to conclude that the FEIR adequately and properly complied with the requirements

under MEPA and its implementing regulations.” Complaint at 7. The Town filed a motion for

judgment on the pleadings in its favor pursuant to Mass. R. Civ. P. 12(c) and Superior Court
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Standing Order 1-96 (“Town Motion”) with a supporting memorandum (“Town Memo”). For the
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reasons set forth below, Eversource opposes the Town Motion and cross-moves for judgment on

the pleadings. The Town has not demonstrated that the Secretary acted arbitrarily and capriciously,

and the Court should affirm the Secretary’s decision.

I. STATUTORY FRAMEWORK

A. Purpose of MEPA

G.L. c. 30, § 61 (“Section 61”) sets forth the essential objectives of MEPA:

All agencies, departments, boards, commissions and authorities of the
commonwealth shall review, evaluate, and determine the impact on the natural
environment of all works, projects or activities conducted by them and shall use all
practicable means and measures to minimize damage to the environment. Unless a
clear contrary intent is manifested, all statutes shall be interpreted and administered
so as to minimize and prevent damage to the environment. Any determination nH
made by an agency of the commonwealth shall include a finding describing the
environmental impact, if any, of the project and a finding that all feasible measures
have been taken to avoid or minimize said impact.

Portions of the Project in Hudson will be constructed in public ways. RA 1:4.

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For projects that meet thresholds relating to their nature, size and location, MEPA establishes a

public process supervised by the Secretary to evaluate the potential environmental impacts of the

project and to identify measures to avoid, minimize or mitigate those impacts through the

Proponent’s preparation of an environmental notification form (“ENF”) and, in certain

circumstances, an environmental impact report (“EIR”), which are published and circulated for

review and comment by interested state agencies and the public. G.L. c. 30, §§ 62-621.

Importantly, MEPA review is not a permitting process and it does not result in

authorization for the project to proceed, which ultimately remains the role of permitting agencies.

GL. c. 30, § 62C. Rather, MEPA involves study and identification of the project’s potential

environmental impacts, evaluation of feasible alternatives, and development of feasible mitigation

measures to assist state agencies with their permitting. Enos v. Secretary of Envtl. Affairs, 432

Mass. 132, 138 (2000) (full disclosure of project’s environmental impact through MEPA ensures
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a thorough environmental review during its early planning). The Secretary does not approve or

disapprove MEPA filings. G.L. c. 30, § 62C. The Secretary is tasked only with issuing a statement l|
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whether the proponent’s ENF and EIR “adequately and properly” comply with MEPA by creating

an appropriate record before the project proceeds to state agency permitting. Id.; Allen v. Boston

Redevelopment Auth., 450 Mass. 242, 247 (2007) (citations omitted). The Secretary does not

pass judgment on whether a project is environmentally beneficial or whether a project can or

should receive a particular state permit. Id. “The Legislature unmistakably intended that the
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MEPA review process expedite action on these matters, by placing final EIR determinations ‘in
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the hands of [the Secretary,] a disinterested public official with expertise in environmental

matters.” Enos, 432 Mass. at 137, quoting Cummings v. Secretary of the Exec. Office of

Envth . Affairs, 402 Mass. 611, 617 (1988).

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B. The MEPA Review Process

MEPA review applies only to projects that: (1) require state agency action (i.e., projects

proposed by state agencies, or private projects that require a permit, financial assistance, or land

transfer from a state agency), and (2) exceed thresholds that identify categories of projects or

aspects thereof of a nature, size or location that are likely, directly or indirectly, to cause damage

to the environment. G.L. c. 30, §§ 62A, 62C and 62E; 301 CMR 11.03. There are two levels

of review thresholds. The lower thresholds require an ENF filing and provide the Secretary

discretion to decide whether further MEPA review is required through filing of an EIR. 301

CMR 11.03. Ifan EIR is not required, MEPA review is complete, and the project may proceed

to state permitting when the ENF is certified as adequate and proper. 301 CMR 11.06(7).

The higher thresholds mandate filing of an ENF and an EIR. 301 CMR 11.03.

After an ENF is filed, a 30-day review period follows, during which the Secretary invites

comment from state agencies and the public. 301 CMR 11.06(1)-(4). If an EIR is mandated by
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MEPA thresholds or required by the Secretary, the Secretary issues a written certificate (“ENF it
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Certificate”) establishing the form, content, level of detail and alternatives that the proponent is |!

required to address in the EIR (the “Scope”). 301 CMR 11.06(7).

When an EIR is required, two stages of public review typically are conducted, starting with

a draft EIR (“DEIR”) and continuing with a final EIR (“FEIR”). 301 CMR 11.07(3)(4). The
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Secretary issues public notice of availability of the DEIR and FEIR when each is filed, which

initiates a 30-day period of public and agency review and comment. G.L. c. 30, § 62C; 301 CMR
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11.08(1. During this time, any agency with jurisdiction or expertise with respect to any
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environmental impact involved and any person may submit written comments to the Secretary that

become part of the MEPA record. Id. The certificate on the DEIR establishes the FEIR Scope

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and requires the FEIR to address public and agency comments on the DEIR. 301 CMR 11.07(3).

Within seven days of the comment period for an EIR, the Secretary issues a statement “indicating

whether or not in his judgment said report adequately and properly complies with [MEPA].”

301 CMR 11.08(8). Where both a DEIR and FEIR are required, certification on the FEIR

completes the MEPA process.” Id.

Once the Secretary certifies that MEPA review is complete by issuing an FEIR certificate,
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state agencies may take final action on permits, land transfers, or grants necessary for the project. it

Enos, 432 Mass. at 136-137. The public record created during MEPA review (ENF, DEIR, | |

FEIR, public and agency comments, and Secretary’s certifications) provides information for [:
agency evaluations and is used by agencies in making the findings required by G.L. c. 30,
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§ 61 (“Section 61 Findings”) as part of its action (Le., describing environmental impacts and

finding all feasible measures have been taken to avoid or minimize said impact). Id.

i. STATEMENT OF FACTS?

A The Company’s Project

The Project is needed to relieve potential overloads on elements of the Company’s greater

Marlborough area transmission system and to maintain reliable electric service to customers. RA

TE:580-581; RA V:2861. Without the Project, under certain operating conditions, the

electricity supply to approximately 80,000 customers in this area cannot be maintained, which

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If the Secretary determines additional review is needed, a supplemental FEIR is required
and, if so, the certificate on the SFEIR concludes the MEPA process. 301 CMR 11.08(c)(2).
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The Town Memo section entitled “Factual and Procedural Background” contains many
misstatements presented as facts that are really only argumentative assertions. These
mischaracterizations must be disregarded as they are not factual statements. The same section of
the Town Memo presents a meritless argument about compliance with stormwater management it
standards that also is not a statement of fact and must be disregarded. Town Memo at 7-8, citing
RA VI:3536-45. Of note, this record citation offered by the Town is nothing more than its own

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FEIR comment letter. The FEIR Certificate indicates that this argument is meritless. RA V:2868.

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could result in loss of service to customers and thermal overloads to the Company’s facilities.

Id. As a transmission company, Eversource is required to maintain its transmission system

consistent with the reliability standards developed by the North American Electric Reliability

Corporation, the Northeast Power Coordinating Council and the New England Independent

System Operator (“ISO-NE”).4 Id.

Except for a short length in Hudson, the Project will be constructed along the MBTA
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ROW? and will involve clearing a 22-30 foot (‘ft’) wide corridor to create an 18-22 ft wide

construction platform consisting of a 14-ft wide gravel access road, a four-ft wide duct bank offset li
from the access road, splice vaults located approximately every 1,500 to 1,800 feet, and three feet

of additional construction area to facilitate installation of the duct bank. RA II:2147; RA V:2860.

Following construction, a 22-30 ft wide corridor will be maintained, of which 14 fect will consist
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of a gravel access road and the remainder will be re-vegetated with native plants. Id.

Where the Project is located along the disused MBTA ROW, Eversource has partnered

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The Project is one of approximately 40 transmission solutions that emerged from an
extended study performed by ISO-NE that identified and addressed reliability needs for the New
England transmission system serving northem Massachusetts and southern New Hampshire. RA
11:0613. The Town wrongly asserts that the other 39 transmission solutions are “options” for other
“feasible alternatives that could have been appropriately analyzed” in lieu of the Project. Town
Memo, fn. 4. In fact, the other 39 transmission solutions address 39 completely different reliability
needs af other locations on the transmission system.
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In another example of presenting argument as though it were fact, the Town falsely claims
that the Project “proposes to alter . . . protected land and resource areas including undeveloped
conservation and open space areas and cold-water fisheries managed by the Town of Sudbury, the
Sudbury Valley Trustees, and the United States Fish and Wildlife Service.” Town Memo at 4.
However, except for the short length of work in public roads in Hudson and locations where the
new line will cross four public roads in Sudbury, the Project will be located entirely within the
disused MBTA ROW and no part of it will extend onto property owned, controlled, or managed
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by any of those entities. RA V:2860. The land and resource areas located on the MBTA ROW {i
that may be impacted by the Project are subject to permitting by Town boards under the state
Wetlands Protection Act, G.L. c. 131, § 40 and Town of Sudbury bylaws, but neither the Town
nor any of the listed entities “manages” the MBTA ROW. RA V:2860-61.

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with the Massachusetts Department of Conservation and Recreation (“DCR”) to couple

construction of the Project with the development of a portion of DCR’s planned regional Mass

Central Rail Trail (“MCRT”), a multi-use trail for pedestrians and non-motorized vehicles that will

advance region-wide trail network connections. RA 1I:2143-2144; RA IV:2059. The new section

of trail will be constructed over the 14-ft gravel access road after the Project is constructed and

will extend public open space and promote regional connectivity and recreation across the state

through a network of bike paths. Jd, Additionally, construction of the line in conjunction with the

MCRT provides a unique opportunity to achieve cost efficiencies and environmental benefits by I
repairing and repurposing bridges and landscape features.° Id.

B. The Project’s MEPA Review

On May 15, 2017, the Company commenced MEPA review of the Project by filing an

ENF with the Secretary.’ RA I:1-113. A corrected ENF form was filed with the Secretary on
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June 9, 2017 to account for an overstatement on the initial form of the area of proposed wetland

alterations. RA 1:123-159. After the public notice and comment period on the ENF, the Secretary ‘|
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issued the Certificate on the ENF on July 14, 2017. RA 1:226. The Secretary found that the ‘I

Project, as described in the corrected ENF, did not meet or exceed any thresholds that would trigger

the mandatory filing of an EIR. RA 1:226. Nevertheless, the Company voluntarily submitted the lt
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Project to further MEPA review and asked the Secretary to issue a Scope for a DEIR to provide

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MBPA review for the MCRT was completed in 2014 (EEA #15123). RA V:2860.
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The Project required an ENF filing because it requires state permits and exceeds the
following thresholds: alteration of more than 25 acres of land, alteration of more than 5,000 sf of
Bordering Vegetated Wetlands, alteration of more than one-half acre of other wetlands (Bordering
Land Subject to Flooding and Riverfront), and construction of an electric transmission line with a
capacity of 69 or more kV that is one or more miles in length along a new, unused or abandoned
ROW. 301 CMR 11.03(1)(b)(), 11.03(3)(b)()(d) and (t), and 11.03(7)(b)(4). RA 1:123-159;
RA [:226.

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additional opportunity for public and agency review of the Project’s potential environmental

impacts and proposed measures to avoid, minimize and mitigate those impacts. RA I:160. The
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Secretary’s ENF Certificate included a Scope for the DEIR that required the Company to provide,

among other things, an analysis of project alternatives and a discussion of construction

methodologies and site design measures that were incorporated to avoid and minimize

potential damage to the environment. RA I:230-238.

The Company submitted its DEIR on October 27, 2017. RA I, I, IV:567-2055. After li
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the public notice and comment period, the Secretary issued the DEIR Certificate on December 15,

2017, finding that the DEIR adequately and properly complied with MEPA. RA IV:2058.
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Consistent with the MEPA regulations, the DEIR Certificate included a Scope for additional

information to be provided in the FEIR. RA IV:2058. The Town implies incorrectly that the

DEIR certification was improper because the Scope identified additional information to be

included in the FEIR. Town Memo at 5 (“despite certifying the DEIR, however, the Secretary
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identified several issues requiring further analysis”).® This is typical and consistent with the
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MEPA Regulations, which explicitly state that the Secretary “shall determine that the draft

EIR is adequate, even if certain aspects of the Project or issues require additional description or

analysis in a final EIR, provided that the Secretary finds that the draft EIR is generally responsive
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to the requirements of 301 CMR 11.07 and the Scope.” 301 CMR 11.08(8)(b)1.

Eversource submitted its FEIR to the Secretary on July 2, 2018.? RA V:2134. After public
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The Town makes a similarly incorrect claim about the ENF. Town Memo at 8.
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Because of a transmission error with email notification of the availability of the FEIR to
federal agencies, Native American Tribes, state legislators and parties who had provided
comments on the ENF and/or DEIR, the Company resubmitted and recirculated its FEIR filing on
July 24, 2018. RA V:2809. The refiling of the FEIR began the public comment period anew. Id.
Apart from revising the FEIR cover and submittal letter to describe these circumstances, no
changes were made to the FEIR in the re-filing. Id. {0

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notice and comment, the Secretary issued the FEIR Certificate on September 14, 2018, certifying

that the FEIR adequately and properly complied with MEPA, thus authorizing the Project to

proceed to state permitting. Id. Similar to its criticism of the Secretary’s certification of the DEIR,

the Town suggests it was improper for the Secretary not to require a supplemental FEIR to address

“outstanding issues” that required “additional analysis and review” and to leave “such

inadequacies to be ‘addressed during State and local permitting and review.” Town Memo at 11,

citing RA V:2859-2874. However, consistent with the broad discretion accorded to the Secretary
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under MEPA (Allen, 450 Mass. at 254) and the MEPA Regulations, the Secretary’s certification

of an FEIR is proper “even if certain aspects of the project or issues require additional analysis of | i

technical details . . . and there will be meaningful opportunities for public review of the additional

analysis” during agency permitting. 301 CMR 11.08(8)(c)1.

IV. ARGUMENT
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The Town offers three reasons for its contention that the issuance of the FEIR Certificate

was purportedly “illogical.” Town Memo at 12. First, the Town alleges that “the FETR failed to

analyze any alternatives to the proposed project and their environmental consequences.” Id.

Second, the Town asserts that “the Secretary inappropriately evaluated the cost of the feasible

alternatives to the Project that were mentioned in the DEIR, as compared to their ability to avoid

or minimize impact to the environment.” Id. Third, the Town contends that “the Certificate does

not include the requisite ‘finding that all feasible measures have been taken to avoid or minimize

said impact [to the environment],’ because such measures were not taken by Eversource.” Id.
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Each of these assertions is demonstrably false. The Sccretary’s exercise of broad discretion was

in all respects logical and rational; thus, certification of the FEIR was not arbitrary or capricious.

A. Standard of Review

The standard of review applicable to the Secretary’s actions in the MEPA process is

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well established. Allen, 450 Mass. at 255; Sierra Club, 439 Mass. at 746. The Secretary’s

tole in overseeing the administrative process for environmental reporting under MEPA has

been repeatedly described by the SJC as that of “a disinterested public official with expertise

in environmental matters.” Allen, 450 Mass. at 247, quoting Cummings, 402 Mass. at 617.

“The Secretary has broad discretion under MEPA to facilitate environmental planning for

proposed projects that will require action by Commonwealth agencies.” Allen, 450 Mass. at 254.

“The. ‘informal and informational public consultation’ permitted under EIR review and the

Secretary’s certification are not adjudicatory proceedings.” Id., quoting Sierra Club, 439 Mass. at

747. The scope of judicial review of the Secretary’s MEPA decisions is accordingly limited

to whether the decision is “logical, and not arbitrary and capricious.” Id. Here, the court’s

teview is limited to whether the Secretary’s exercise of discretion in certifying the FEIR had a

tational basis. Allen, 450 Mass. at 254. In that regard, “appropriate deference must be given to

the Secretary’s expertise in environmental matters.” Id. The Town acknowledges, as it must, that

it bears the burden of proving the Secretary’s actions were illogical, arbitrary, or capricious. Town

Memo at 12; see Sierra Club, 439 Mass. at 749.

B. The Secretary Appropriately Found that the Company’s Analysis of Project
Alternatives Complied with MEPA.

The Town first contends that the FEIR is “deficient” because it did not contain an analysis

of “reasonable alternatives” separate from the alternatives analysis that the Company presented in

the DEIR. Town Memo at 5, 12. Based on that claim, the Town wrongly asserts that the

Secretary’s certification of the FEIR was arbitrary and a “rubber-stamp of the Project.” Id. The
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Tequirements of MEPA and the MEPA Regulations, as well as the voluminous record (six volumes

totaling 3,552 pages) created during MEPA review, belie this baseless claim. The Company
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presented a robust analysis of project alternatives in the DEIR, which the Secretary certified to be

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adequate and proper in the DEIR Certificate. RA 11:612-694. Accordingly, in the exercise of

broad discretion, the Secretary did not require further analysis of project alternatives in the FEIR.

RA IV:2062-2065; RA V:2865.

The Secretary’s actions were fully consistent with MEPA. G.L. c. 30, § 62B provides:

An environmental impact report shail contain statements describing the nature and Ji
extent of the proposed project and its environmental impact; all measures being
utilized to minimize environmental damage; any adverse short-term and long-term.
environmental consequences which cannot be avoided should the project be
undertaken; and reasonable alternatives to the proposed project and their | I
environmental consequences.

The DEIR “shall present in accordance with 301 CMR 11.07(6) and the Scope a reasonably

complete and stand-alone description and analysis of the Project and its alternatives, and an

assessment of its potential environmental impacts and mitigation measures.” 301 CMR 11.07(3).

However, the requirements for the FEIR are different: i!

The Secretary may limit the Scope of the final EIR to aspects of the Project or issues |i
that require further description or analysis and a response to comments, instead of
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requiring a stand-alone document that meets all of the form and content requirements
for an EIR in accordance with 301 CMR 11.07(6), provided that the draft and final
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EIRs shat! present a complete and definitive description and analysis of the Project
and its alternatives, and assessment of its potential environmental impacts and
tnitigation measures sufficient to allow a Participating Agency to fulfill its
obligations in accordance with M.G.L. c. 30, § 61 and 301 CMR 11.12(5).

301 CMR 11.07(4) (emphasis added). The Secretary considers the totality of the information

provided in both a project proponent’s DEIR and FEIR, taken together, when deciding whether

the requirements of MEPA have been met and a project may proceed to state permitting. 301

CMR 11.08(8)(b) and (c). Thus, contrary to the Town’s contention, the Secretary’s determination

that the Company’s DEIR presented a sufficient description and analysis of alternatives to the

Project and that further analysis of project alternatives was not required in the FEIR did not in
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any way make the certification of the FEIR improper.!°

The Secretary’s actions were entirely consistent with MEPA and the MEPA Regulations,

and the certification of the FEIR was rational, not arbitrary or capricious, and wholly within the

Secretary’s broad discretion. Allen, 450 Mass. at 254. The MEPA record demonstrates that the

Company provided a complete analysis of project alternatives that complies with MEPA and

identified feasible measures to avoid, minimize and mitigate damage to the environment.

1. The DEIR Contains a Complete Alternatives Analysis. \!

The DEIR presented the Company’s comprehensive analysis of routing altcrnatives to

identify a reasonable variety of potential candidate routes that ensured that a clearly superior

alternative was not overlooked. The Company evaluated 21 different route options, including

routes located within the MBTA ROW and public roadways. RA II:612-694; RA IV:2062-2065.
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After considering abutting land uses, natural resources, traffic pattems, and constructability

constraints, the Company eliminated nine routes and identified 12 routes for further evaluation
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based on environmental and reliability criteria and cost estimates. Id. The DEIR provided a

detailed description of the routing analysis and scoring process. Id. The Company selected the

Project and a geographically distinct all-street route for further evaluation, and the DEIR included {it

a table that summarized, for both, environmental impacts (construction impacts, tree clearing,
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wetland impacts, public water supplies, conservation lands, coldwater fishery resource crossings, | 1

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The Town presents a patently false claim by stating: “MEPA review plainly does
require that ‘firral EIRS shall present a complete and definitive description and analysis of
the Project and its alternatives” (emphasis added). Town Memo at 14, quoting 301 CMR
11.07(4). This quotation has been manipulated from the actual language of this regulation, which
states that if the Secretary certifies the adequacy of a DEIR, she “may limit the Scope of the final
EIR .. . provided that the draft and final EIRs shall present a complete and definitive description
and analysis of the Project and its alternatives . . .” (emphasis added). The Town Memo is replete
with this kind of obfuscation of the MEPA Regulations and the different requirements that apply
to DEIRs and FEIRs.

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rare species habitat, and potential presence of contamination) and cost. Id. The Company selected

the Project as superior to the other route alternatives because construction would impact fewer

residences, sensitive receptors, and scenic roadways, cause less traffic and impact to public water

supplies, and affect fewer contaminated sites. Id.

In addition to the routing analysis, the DEIR presented the Company’s evaluation of project

alternatives, including: (1) a no-build alternative; (2) non-transmission alternatives (“NTAs”),

including power generation, solar, battery storage, active and passive demand response; (3) an iy

alternative transmission solution consisting of multiple transmission line projects and upgrades to hh
seven substations; and (4) a design alternative consisting of an overhead line within the MBTA
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ROW. RA II-612-694; RA FV:2062-2065. Each project alternative was shown to be inferior to

the Project because: (1) the no-build alternative would not address the system’s reliability needs
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or comply with national and regional reliability standards; (2) the NTAs would be difficult to

implement and would not adequately address reliability needs; (3) the alternative transmission iI
solution alternative was less effective in addressing reliability, had greater environmental impacts
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to wetland resource areas and historic and archeological resources, and would be more expensive |!

to implement; and (4) the overhead design variation, while estimated to cost $46.8 million less i

than the Project, would have significantly more wetland resource impacts and require substantially
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more tree clearing than the Project. Id.
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The DEIR Certificate includes a detailed discussion of the DEIR’s analysis of the various

alternatives to the Project, and the Secretary did not require further analysis of alternatives in the
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FEIR. RA IV:2062-2065. The Town admits this. Town Memo at 13. It was well within the |nt
Secretary’s wide discretion to do so. Allen, 450 Mass. at 254; Sierra Club, 439 Mass. at 751

(“alternatives were both discussed and considered, and the Secretary’s [ ] acceptance of the \!

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eventually approved plan was not arbitrary or capricious by reason of a failure to consider

alternatives”). “The purpose of MEPA review is to evaluate the environmental impacts of a

proposed project in light of the Proponent’s objectives. ... It does not proscribe to a Proponent

what, where, or how a project should be designed or built.” RA [V:2064. The Secretary’s

treatment of alternatives was reasonable, appropriate and in full conformance with MEPA.

2. The FEIR Complied with the Scope and Demonstrated the Project Includes All
Feasible Means to Avoid, Minimize and Mitigate Damage to the Environment.
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The Secretary prescribed the Scope of the FEIR to identify “construction methodologies Hy
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and site design measures that have been incorporated into the Preferred Alternative [the Project]
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to further avoid and minimize damage to the environment,” including evaluation of additional
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reductions in roadway width and clearing, locating the majority of the duct bank within the

footprint of the access road, alternative methods for stream/culvert crossings, and use of smaller

construction equipment to limit construction access clearing. RA IV:2073-2078. The Company

also was required in the FEIR “to identify other design measures and/or commitments that will be

adopted to further reduce the impacts of the project since the filing of the DEIR, or, if certain

measures are infeasible, the FEIR should discuss why these measures will not be adopted.” Id.

Jn accordance with this Scope, the FEIR specifically addressed design methodologies for

the Project, presented Project changes since the DEIR that resulted in fewer environmental

impacts, and provided extensive information on minimization of impacts. RA V:2134;
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RA V:2859. Based on this detailed information, the Secretary reasonably determined that the

FEIR also adequately and properly complied with MEPA. RA V:2859. The Secretary had a

tational basis for issuing the FEIR Certificate that was neither arbitrary nor capricious. Sierra

Club, 439 Mass. at 751-752 (Secretary’s certification not arbitrary or capricious where

environmental impacts adequately considered).

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The Townis completely off base in relying on Allen to support its claim that the Secretary’s

certification of the FEIR was arbitrary and capricious. Town Memo at 15. Allen involved the

proposed construction of a “Biosafety Level 4” laboratory that would require the highest level of

security because medical research on the most dangerous diseases and toxins, including, but not

limited to, the Ebola virus, smallpox, anthrax, and botulism, would be conducted there. Allen, 450

Mass. at 244. The issue in Allen was whether the proponent had evaluated all reasonable

project alternatives in light of the Secretary’s requirement in the FEIR Scope that locations

outside of the neighborhood where the project was proposed were regarded as “reasonable

alternatives” for consideration. Id. at 259. Notably, “it is left to the discretion of the Secretary to

decide specifically what project alternatives are appropriate for inclusion in a particular EIR, and

those ‘reasonable’ alternatives will vary depending on the nature of a project.” Id. The SJC held
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that the Secretary’s certification of the FEIR was arbitrary and capricious because the FEIR failed il

entirely to address alternative locations for the project as directed by the Secretary. 1d. |
The distinction between this case and Allen is critical. Unlike in Allen, there is no

reasonable contention here that Eversource’s MEPA filings did not evaluate or consider
rt
alternatives to the full extent required by the Secretary for the DEIR and the FEIR. See, ¢.g., RA li
11:612-694; RA IV:2062-2065, 2074. There was nothing arbitrary or capricious about the
i
Secretary’s certification of the FEIR because alternatives were fully analyzed in the DEIR and,

consistent with the Scope for the FEIR, no further analysis of project alternatives was required by

the Secretary. Id.; see supra at 8-9.

C. The Secretary Properly Found that the Information in the EIRs on Avoidance,
Minimization and Mitigation of Environmental Impacts Complied with MEPA.

The Town suggests that the Secretary made an “arbitrary assessment” of the additional
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“financial costs” of the all-street alternative (the so-called “Noticed Alternative”) as a factor in

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making the determination regarding the sufficiency of the FEIR.'! Town Memo at 16-17.

Specifically, the Town points to the section in the FEIR Certificate where the Secretary

summarized the information about the various project alternatives presented in the DEIR, which

included, among other facts, the additional financial cost of $19.4 million for the Noticed

Altemative. Town Memo at 16, citing RA V:2864. The Town contends that it was an error of law

and arbitrary and capricious for the Secretary to “include ‘costs’ of an alternative as an appropriate

factor to consider in evaluating the environmental impact of a project under MEPA.” Town Memo

at 16-17, citing Sierra Club, 439 Mass. at 751. This premise fails.

The Town is wrong to cite Sierra Club as if it held that “permissible considerations in

rejecting alternatives include only environmental issues.” Town Memo at 17. It does not. See

Sierra Club, 439 Mass. at 750-752. Moreover, the Town’s assertion that “the Legislature did not

include ‘costs’ of an alternative as an appropriate factor to consider in evaluating the environmental

impact of a project under MEPA” is simply incorrect. Town Memo at 17. Financial costs are
it
properly considered in the identification of “reasonable” or “feasible” alternatives to be analyzed

in the EIR. “MEPA prescribes that project alternatives that are ‘reasonable’ or ‘feasible’ must be

included in an EIR so that damage to the environment can be assessed and mitigated.” Allen, 450

Mass. at 259. The MEPA Regulations expressly provide that the “detailed description and

analysis” of the proposed project to be presented in the EIR must include its “approximate cost.”

301 CMR 11.07(6)(e)4. In turn, the MEPA Regulations provide that the “description and analysis

of alternatives” must include “an analysis of the principal differences among the feasible

W
This argument was previewed in another of the Town’s false assertions presented as “fact,”
ie., that the Secretary’s certification of the FEIR was based upon a consideration that “the more
environmentally-friendly alternatives would cost more for Eversource as part of an estimated $100
million project ....” Town Memo at 10.

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I
alternatives under consideration.” 301 CMR 11.07(6)()4. Clearly, documentation of the cost

differences among the alternatives is appropriate. There is nothing in the MEPA Regulations or

precedent to support an argument that the Secretary, in exercising reasonable discretion, must turn

ablind eye to cost considerations in determining what alternatives are reasonable or feasible. Thus,

the Town’s argument is baseless.

In any event, the Town’s claim that the Secretary performed an “arbitrary assessment of

the costs associated with the Noticed Alternative,” and then “ostensibly weighed those costs as a

more important consideration than the mitigation of damage to the environment,” is unsupported.
\1
Town Memo at 16. Nothing in the DEIR or FEIR certificates indicates that the Secretary relied

on costs in certifying that the EIRs complied with MEPA. it is also clear that the Secretary did

not elevate cost as “a more important consideration than the mitigation of damage to the

environment.” Based upon review of the FEIR, the Secretary reasonably concluded that the

Company had reduced the environmental impacts of the Project and identified additional

mitigation since the DEIR stage. RA V:2863-2871. The draft Section 61 Findings included in the
|!
FEIR underscore the Company’s commitments to implement specified measures to avoid,

minimize, and mitigate potential impacts to wetlands, wildlife, water quality, air quality (dust and \\

noise), stormwater, rare species, and historic and archaeological resources. RA V:2871-2873.

In sum, the Secretary certified the FEIR as complying with MEPA based upon the totality

of information presented in the Company’s EIRs regarding avoidance, minimization and ‘|
\,
I,

mitigation of potential environmental impacts, and not on the basis of the cost. Accordingly, the

Secretary’s actions were consistent with MEPA and not arbitrary or capricious.
||
‘|
D. The Secretary’s Certification Was Not Arbitrary or Capricious Because the \t
Company Appropriately Identified Measures te Avoid, Minimize or Mitigate
Damage to the Environment.

The Town makes th

Case Info

Judge

Elaine M. Buckley Track Judge’s New Case

Case No.

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Document Filed Date

February 08, 2021

Case Filing Date

January 16, 2020

County

Parties

Braun, Esq., Devan C Attorney for the Plaintiff
Cray, Esq., Pierce O Attorney for the Defendant
Fogel, Esq., Barry P Attorney for the Defendant
Kathleen Theoharides in her capacity as Secretary for the Executive Office of Energy and Environmental Affairs for the Commonwealth of Massachusetts Defendant
NSTAR Electric Company Defendant
Pucci, Esq., George X Attorney for the Plaintiff
Rosenzweig, Esq., David S Attorney for the Defendant
Town of Sudbury Plaintiff

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Motion-Secondary: Town of Sudbury vs. Kathleen Theoharides in her capacity as Secretary for the Executive Office of Energy and Environmental Affairs for the Commonwealth of Massachusetts et al

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