{"id":3144,"date":"2023-01-11T22:06:56","date_gmt":"2023-01-12T03:06:56","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/elr\/?p=3144"},"modified":"2024-07-21T16:57:57","modified_gmt":"2024-07-21T20:57:57","slug":"standing-to-appeal-administrative-decisions-in-massachusetts-a-game-of-bait-and-switch","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2023\/01\/11\/standing-to-appeal-administrative-decisions-in-massachusetts-a-game-of-bait-and-switch\/","title":{"rendered":"Standing to Appeal Administrative Decisions in Massachusetts: A Game of Bait and Switch?"},"content":{"rendered":"

Shaun A. Goho<\/span><\/p>\n

View pdf here<\/a><\/p>\n

I. Introduction<\/span><\/b>\u00a0<\/span><\/p>\n

Courts, commenters, and advocates express diverging views about the appropriate degree of stringency courts should apply when assessing the standing of plaintiffs asserting environmental interests.\u00a0 Regardless of where one stands on this issue, however, it should be uncontroversial that the rules governing access to the courts should be clear and understandable for all parties.\u00a0 Unfortunately, for people intervening in administrative proceedings in Massachusetts who then want to challenge those decisions in court, this is far from the case.<\/span>\u00a0<\/span><\/p>\n

Instead, as a result of the interaction among the statutes and regulations governing intervention in administrative hearings, those governing judicial review in the courts, and judicial decisions interpreting both types of provisions, intervenors are faced with what amounts to a judicial game of bait and switch.\u00a0 In the administrative proceeding, they may be granted intervention under a lenient standard only to find that when they seek judicial review, the court holds them to a higher standard to establish standing and\u2014what is worse\u2014does not allow them to submit evidence to satisfy this higher standard.\u00a0 By analyzing a pair of state appellate court decisions, this article explains this problematic state of affairs.\u00a0 It then concludes with recommendations, ranging from practice tips to help litigants find their way through this maze to regulatory and statutory fixes to improve the fairness, efficiency, and transparency of these processes.<\/span>\u00a0<\/span><\/p>\n

II. Two Judicial Decisions Highlight Confusions Regarding Standing to Challenge Administrative Actions in Massachusetts<\/span><\/b>\u00a0<\/span><\/p>\n

Under a variety of statutory schemes, it is common for either a local or state agency in Massachusetts to have the authority to decide whether to grant a permit or other approval to a private developer or project proponent.\u00a0 Typically, the agency will conduct an administrative review process during which third parties (such as concerned residents) can intervene as parties.\u00a0 Following the agency\u2019s decision to grant or deny the permit, the applicant or intervenors may seek to appeal the decision in court.<\/span>\u00a0<\/span><\/p>\n

Under the Massachusetts Administrative Procedure Act (\u201cMassachusetts APA\u201d), there are two ways that individuals concerned about the environmental effects of an agency\u2019s decision can intervene in an administrative proceeding.\u00a0 First, they can introduce evidence that they may be harmed by the outcome of the proceeding.<\/span>1<\/a><\/sup>Mass. Gen. Laws ch. 30A, \u00a7 10 (1978) (providing that agencies may \u201callow any person showing that he may be substantially and specifically affected by the proceeding to intervene as a party\u201d in an adjudicatory proceeding).<\/span><\/span>\u00a0 Second, they can establish themselves as a ten-citizen group in a proceeding involving potential \u201cdamage to the environment.\u201d<\/span>2<\/a><\/sup>Id. \u00a7 10A (2006).<\/span><\/span><\/p>\n

Just as there are two bases for intervention in an administrative proceeding, there are also two ways to establish standing in the Massachusetts courts.\u00a0 First, they can introduce evidence that they will be \u201caggrieved\u201d by the decision.<\/span>3<\/a><\/sup>Id. \u00a7 14 (2015).<\/span><\/span>\u00a0 Second, they can establish themselves as a ten-citizen group for purposes of an appeal.<\/span>4<\/a><\/sup>Id. \u00a7 10A (2006). As I will discuss below, this mechanism is available only for appeals of administrative decisions reached in adjudicatory proceedings, not in other kinds of administrative hearings.<\/span><\/span>\u00a0 The first mechanism is the traditional one, analogous to the approaches found in other types of litigation in Massachusetts, in other states, and in federal courts.<\/span>5<\/a><\/sup>See, e.g., Friends of the Earth, Inc. v. Laidlaw Env\u2019t Servs. (TOC), Inc., 528 U.S. 167, 180\u201381 (2000) (\u201cto satisfy Article III\u2019s standing requirements, a plaintiff must show (1) it has suffered an \u2018injury in fact\u2019 that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.\u201d); Brantley v. Hampden Div. of Prob. & Fam. Ct. Dep\u2019t, 929 N.E.2d 272, 279 (Mass. 2010) (\u201cIt is a general rule that, in order to have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury.\u201d) (citations and internal quotation marks omitted); John Dimanno, Note, Beyond Taxpayers\u2019 Suits: Public Interest Standing in the States, 41 Conn. L. Rev. 639, 657 (2008) (noting that, despite differences between federal and state approaches to standing, many \u201cstates maintain some form of injury-based standing as a threshold test of justiciability\u201d).<\/span><\/span>\u00a0 The second, the ten-citizen mechanism, was a novel form of standing introduced in Massachusetts in the 1970s,<\/span>6<\/a><\/sup>Mass. Gen. Laws ch. 30A, \u00a7 10A was enacted in 1971. 1971 Mass. Acts c. 732, \u00a7 2. Intervention under this provision is limited to addressing issues related to damage to the environment and the potential elimination or reduction of that damage. In the same 1971 bill, the legislature also created a cause of action that allows a ten-person group to sue to prevent \u201cdamage to the environment.\u201d Id. \u00a7 1 (codified at Mass. Gen. Laws ch. 214, \u00a7 7A (1981)). <\/span><\/span> and was intended to make it easier for environmental interests to establish their standing.<\/span>7<\/a><\/sup> See Michael Kenney, New Law Allows Citizens to Sue against Pollution, Boston Globe, Sept. 8, 1971.<\/span><\/span>\u00a0Under this approach, a group of at least ten people can intervene in an administrative adjudicatory proceeding in which \u201cdamage to the environment\u201d is at issue and can appeal the outcome of that proceeding in court.<\/span>8<\/a><\/sup>Mass. Gen. Laws ch. 30A, \u00a7 10A (2006).<\/span><\/span><\/p>\n

Unfortunately, the interaction of these two forms of standing at the administrative and judicial stages of a case has produced needless confusion and can, as a result, serve as a barrier to court access.\u00a0 These problems are exemplified by two decisions in which Massachusetts courts have ruled on intervenors\u2019 attempts to appeal the outcome of administrative proceedings.<\/span>\u00a0<\/span><\/p>\n

A. Board of Health of Sturbridge v. Board of Health of Southbridge<\/span><\/i><\/b>\u00a0<\/span><\/p>\n

The first case is <\/span>Board of Health of Sturbridge v. Board of Health of Southbridge<\/span><\/i>,<\/span>9<\/a><\/sup>962 N.E.2d 734 (Mass. 2012).<\/span><\/span> a 2012 decision of the Massachusetts Supreme Judicial Court (\u201cSJC\u201d).\u00a0 In 2008, a company operating a landfill and associated processing facility in Southbridge applied to the local board of health for permission to make changes to its operations.\u00a0 In the language of the Massachusetts Solid Waste Act, the company was asking for a \u201cminor modification\u201d to its existing \u201csite assignment,\u201d which allowed it to operate the facilities at that location.<\/span>10<\/a><\/sup>Id. at 736.<\/span><\/span><\/p>\n

Pursuant to the procedures required under the Act,<\/span>11<\/a><\/sup>Mass. Gen. Laws ch. 111, \u00a7 150A (2011).<\/span><\/span>\u00a0the Southbridge Board of Health held a public hearing on the application.\u00a0 Residents of Southbridge and nearby towns moved to be admitted as intervenors in the proceeding, organizing themselves as 28 ten-citizen groups for that purpose.\u00a0 They did so by submitting identical forms which they titled \u201cRegistration of 10-Citizen Group,\u201d each of which contained the following statement:<\/span>\u00a0<\/span><\/p>\n

STATEMENT OF HOW REGISTRANTS ARE SUBSTANTIALLY & SPECIFICALLY AFFECTED:<\/span>\u00a0<\/span><\/p>\n

We, the undersigned residents of Southbridge, Sturbridge, and Charlton, with good cause hereby register to be a Party and petition to be a Ten Citizen Group Intervener in the above-described proceeding and to be represented by the Authorized Representative named above.<\/span>12<\/a><\/sup>The plaintiffs\u2019 counsel is named as the Authorized Representative on each form. <\/span><\/span>\u00a0 We live in the vicinity of the Southbridge Landfill and are substantially and specifically affected by the expansion of the landfill and its conversion from construction and demolition (C & D) to municipal solid waste (MSW) because it will: (a) cause an increase of noxious and foul smelling gases affecting residential areas for miles[;] (b) increase truck traffic on highways and side streets that emit strong odors, contaminated water and windblown litter causing a danger to public health & safety; (c) cause inevitable drinking water contamination[;] (d) devalue area homes.\u00a0 We make this statement under the pains and penalty of perjury.<\/span>13<\/a><\/sup>Sturbridge, 962 N.E.2d at 740 n.15. As the references to the \u201csubstantially and specifically affected\u201d standard in this statement suggest, potential intervenors can pursue both kinds of intervention simultaneously.<\/span><\/span>\u00a0<\/span><\/p>\n

Pursuant to the Department of Environmental Protection\u2019s (\u201cDEP\u201d) site assignment regulations, a hearing officer \u201cshall\u201d allow \u201c[p]ersons whom the Hearing Officer determines are <\/span>specifically and substantively affected<\/span><\/i> by the hearing\u201d to intervene.14<\/a><\/sup>310 Mass. Code Regs. 16.20(9)(a) (2022) (emphasis added). <\/span><\/span>\u00a0Furthermore, under the regulations, a ten-citizen group \u201c<\/span>shall be considered to be specifically and substantively affected<\/span><\/i> by the hearing and shall be eligible to register as a Party.\u201d<\/span>15<\/a><\/sup>Id. (emphasis added). Under the regulations, \u201c[a]ny abutter or group of abutters to the proposed facility\u201d is also \u201cconsidered to be specifically and substantively affected.\u201d Id.<\/span><\/span>\u00a0<\/span><\/p>\n

As a result of the interaction of these two clauses, a hearing officer <\/span>must<\/span><\/i> grant intervention to any qualifying ten-citizen group, without needing to make any individualized finding that the intervenors are actually affected by the proposal.\u00a0 Under the site assignment regulations, the requirements for qualifying as a ten-citizen group are merely clerical, involving the registration as a group, providing the names and addresses of the registrants, asserting their status as a ten-citizen group, and naming an authorized representative.<\/span>16<\/a><\/sup>Id. 16.20(9)(b).<\/span><\/span>\u00a0In addition, the hearing officer has no discretion to deny a ten-citizen group\u2019s petition to intervene: the officer \u201cshall\u201d consider a ten-citizen group to be \u201cspecifically and substantively affected\u201d and \u201cshall\u201d grant the petition to intervene of anyone who is \u201cspecifically and substantively affected.\u201d<\/span>\u00a0<\/span><\/p>\n

Accordingly, the Southbridge hearing officer did not make any findings regarding how the members of the ten-citizen groups would be affected by the proposed modification of the landfill.\u00a0 Instead, the hearing officer simply allowed all of the ten-citizen groups to intervene based on the forms quoted above.<\/span>\u00a0<\/span><\/p>\n

At the conclusion of the public hearing, the board granted the minor modification to the site assignment.\u00a0 The ten-citizen groups then appealed the decision to Superior Court, where the court upheld it on the merits, after finding that the plaintiffs had standing.<\/span>17<\/a><\/sup>962 N.E.2d at 736.<\/span><\/span>\u00a0The plaintiffs appealed, and the SJC transferred the appeal from the Court of Appeals on its own motion.<\/span>\u00a0<\/span><\/p>\n

After briefing and oral argument, the SJC held that the plaintiffs lacked standing to appeal the board\u2019s decision.\u00a0 Under the Solid Waste Act, \u201c[a]ny person <\/span>aggrieved<\/span><\/i>\u201d by a Board of Health\u2019s site assignment decision may appeal that decision in court pursuant to section 14 of the Massachusetts APA, Mass. Gen. Laws 30A, \u00a7 14.<\/span>18<\/a><\/sup>Mass. Gen. Laws ch. 111, \u00a7 150A (2011) (emphasis added).<\/span><\/span>\u00a0The SJC recognized the similarity between the \u201caggrieved\u201d standard for appeals and the \u201csubstantially and specifically affected\u201d standard for intervention in the public hearing, noting that:<\/span>\u00a0<\/span><\/p>\n

If an agency decides that a particular person is \u201csubstantially and specifically affected\u201d by a proceeding to a degree warranting intervention as a party, <\/span>it is likely<\/span><\/i> the person also will be able to establish that he or she qualifies as a person \u201caggrieved\u201d for purposes of obtaining judicial review of the agency\u2019s decision.<\/span>19<\/a><\/sup>962 N.E.2d at 742 (emphasis added).<\/span><\/span>\u00a0<\/span><\/p>\n

The problem, according to the SJC, was that the Southbridge hearing officer never determined that any of the intervenors were in fact \u201csubstantially and specifically affected.\u201d\u00a0 Instead, under the site assignment regulations, \u201ccitizen groups such as the plaintiffs acquire party status automatically.\u201d<\/span>20<\/a><\/sup>Id. at 743.<\/span><\/span>\u00a0Because the regulations provide that a ten-citizen group \u201cshall be considered to be specifically and substantively affected,\u201d there was no occasion for the hearing officer to make any factual findings on that issue.<\/span>\u00a0<\/span><\/p>\n

The court therefore looked at the administrative record to determine whether it contained evidence that \u201csupport[ed] a conclusion that any of the plaintiffs will suffer prejudice to their individual rights.\u201d<\/span>21<\/a><\/sup>Id. at 744.<\/span><\/span>\u00a0The only relevant evidence was the registration forms quoted above.\u00a0 The court found that these forms were inadequate because they did not \u201ccontain[] information describing the specific relationship of any plaintiff to the landfill\u2014whether by physical proximity or otherwise.\u201d<\/span>22<\/a><\/sup>Id.<\/span><\/span>\u00a0<\/span><\/p>\n

The court also rejected an argument raised by the Conservation Law Foundation as <\/span>amicus<\/span><\/i>: that the plaintiffs had standing to appeal under a separate provision of the Massachusetts APA (Mass. Gen. Laws ch. 30A, \u00a7 10A), which provides that a ten-citizen group \u201cmay intervene in any adjudicatory proceeding . . . in which damage to the environment . . . is or might be at issue\u201d and that such intervention \u201cinclud[ed] specifically the right of appeal.\u201d<\/span>23<\/a><\/sup>Mass. Gen. Laws ch. 30A, \u00a7 10A (2006). <\/span><\/span>\u00a0 The problem here, according to the court, was that the Sturbridge Board of Health held a different kind of proceeding\u2014not an <\/span>adjudicatory<\/span><\/i> proceeding but a <\/span>public<\/span><\/i> hearing\u2014and therefore this provision was irrelevant.<\/span>24<\/a><\/sup>962 N.E.2d at 744 n.28. \u201cThe public hearing process is designed to permit the flexibility and informality appropriate to the board of health proceeding, while providing the board of health with procedural direction and the authority to create a record and render a decision within a limited time period which is amenable to the procedures and the standards of judicial review.\u201d 310 Mass Code Regs. 16.20(1).<\/span><\/span>\u00a0 Accordingly, the SJC ordered the case dismissed for lack of standing.<\/span>25<\/a><\/sup>962 N.E.2d at 747.<\/span><\/span>\u00a0<\/span><\/p>\n

B. Coalition to Preserve the Belmont Uplands v. DEP<\/span><\/i><\/b>\u00a0<\/span><\/p>\n

The year after <\/span>Sturbridge<\/span><\/i>, the Court of Appeals decided <\/span>Coalition to Preserve the Belmont Uplands v. DEP<\/span><\/i>.<\/span>26<\/a><\/sup>No. 12-P-526, 2013 WL 4778128 (Mass. App. Ct. Sept. 9, 2013).<\/span><\/span>\u00a0In this case, a developer submitted a Notice of Intent (\u201cNOI\u201d) under the Wetlands Protection Act to the Belmont Conservation Commission (the \u201cConCom\u201d).\u00a0 The developer proposed to build a 299-unit affordable housing complex on a 15.6-acre parcel of land next to Little Pond, in the Town of Belmont.\u00a0 The ConCom refused to issue an Order of Conditions and the developer appealed to DEP.\u00a0 DEP reversed the ConCom\u2019s decision, issuing a Superseding Order of Conditions in which it granted approval to the project.\u00a0 The ConCom filed an administrative appeal, and DEP initiated an adjudicatory proceeding.<\/span>\u00a0<\/span><\/p>\n

Twelve Belmont residents and two conservation groups moved to intervene in the adjudicatory proceeding.\u00a0 Similar to the site assignment regulations at issue in <\/span>Sturbridge<\/span><\/i>, the DEP adjudicatory proceeding regulations provide that someone can intervene either by showing that she will be \u201csubstantially and specifically affected by the adjudicatory proceeding\u201d or, \u201cin any adjudicatory proceeding in which damage to the environment . . . is or might be at issue,\u201d as part of a ten-citizen group.<\/span>27<\/a><\/sup>310 Mass. Code Regs. 1.01(7)(d), (f). These are the standards for intervention in an existing appeal to DEP. To initiate an appeal, someone concerned about the environmental impacts of the project need show only that they have \u201ca right to initiate an adjudicatory appeal.\u201d Id. 1.01(6)(a). DEP\u2019s Wetlands Protection Act regulations provide, in turn, that \u201cany person aggrieved by a Determination or an Order,\u201d \u201cany owner of land abutting the land on which the work is to be done,\u201d or \u201cany ten residents of the city or town where the land is located\u201d may appeal a ConCom\u2019s decision. 310 Mass. Code Regs. 10.05(7)(a). However, as a practical matter, it virtually never occurs that someone appeals a decision of a ConCom to the DEP because it is insufficiently protective of the environment.<\/span><\/span>\u00a0 In their motion to intervene, the residents alleged that they \u201clive[d] adjacent to or near the Little Pond next to which the applicant\u2019s proposed housing project would be built.\u201d28<\/a><\/sup>Coalition to Preserve the Belmont Uplands v. Kimmell, No. 2012-P-0526 (Mass.), Application for Leave to Obtain Further Appellate Review at 14 (Sept. 27, 2013) (quoting Motion to Intervene at 4-5), https:\/\/perma.cc\/UW73-XYKW.<\/span><\/span>\u00a0They also alleged that they were a ten-citizen group.\u00a0 Neither the developer nor DEP opposed the motion.\u00a0The presiding officer granted the motion to intervene, writing:<\/span>\u00a0<\/span><\/p>\n

As grounds for the motion [the plaintiffs] assert that they are persons or entities substantially and specifically affected by this proceeding.\u00a0 The time period for the current parties to the appeal to object to the Motion to Intervene has expired.\u00a0 No objection has been filed, and subject to 310 CMR 1.01(11)(a) the Motion to Intervene is granted.<\/span>29<\/a><\/sup>Id. at 15 (quoting Order on Motion at 7).<\/span><\/span>\u00a0<\/span><\/p>\n

The cited provision in the DEP adjudicatory proceeding rules provides that \u201c[a] failure to file a timely response may result in a grant of the relief requested by the moving party.\u201d<\/span>30<\/a><\/sup>310 Mass. Code Regs. 1.01(11)(a)(1). <\/span><\/span>\u00a0 At the end of the adjudicatory proceeding, the presiding officer recommended affirming the approval of the project, and the DEP Commissioner issued a final decision to that effect.31<\/a><\/sup>Coalition to Preserve the Belmont Uplands, 2013 WL 4778128 at *1.<\/span><\/span>\u00a0The plaintiffs then appealed to the Court of Appeals.<\/span>\u00a0<\/span><\/p>\n

The Court of Appeals held that the plaintiffs did not have standing.\u00a0 It noted first that, despite <\/span>Sturbridge<\/span><\/i>\u2019s statement, quoted above, about the similarity of the \u201csubstantially and specifically affected\u201d and \u201caggrieved\u201d standards,<\/span>\u00a0<\/span><\/p>\n

an agency\u2019s finding that a party is \u201csubstantially and specifically affected\u201d <\/span>only makes it \u201clikely\u201d<\/span><\/i> that the party will be considered aggrieved for the purposes of subsequent judicial review.\u00a0 In other words, such a finding <\/span>does not create a per se grant of standing<\/span><\/i>.<\/span>32<\/a><\/sup>Id. at *2 (emphasis added) (citation omitted).<\/span><\/span><\/p>\n

Therefore, even if the presiding officer had found that the plaintiffs were \u201csubstantially and specifically affected,\u201d that would not be dispositive in determining whether they were \u201caggrieved.\u201d<\/span>\u00a0<\/span><\/p>\n

However, the court also concluded that the presiding officer had in fact made no finding that the plaintiffs were substantially and specifically affected.\u00a0 Instead, the presiding officer had granted the motion to intervene only because it was unopposed.<\/span>33<\/a><\/sup>Id. at *3. As the court noted, \u201c[u]nder 310 Code Mass. Regs. \u00a7 1.01(11)(a)(1), \u2018[a] failure to file a timely response may result in a grant of the relief requested by the moving party.\u2019\u201d Id. at *3 n.8. <\/span><\/span>\u00a0\u201cPut another way, where the grant of intervener status is triggered purely by operation of a regulation or statute, we will not simply assume, without additional evidence, that the party has been aggrieved by the proceeding.\u201d<\/span>34<\/a><\/sup>Id. at *3.<\/span><\/span>\u00a0<\/span><\/p>\n

Finally, the court indicated that after reviewing the administrative record, it could \u201cdiscern no support for the proposition that the coalition was, in fact, an \u2018aggrieved\u2019 party.\u201d35<\/a><\/sup>Id.<\/span><\/span>\u00a0Citing only the coalition\u2019s complaint, the court equated the allegation that coalition members lived \u201cnear the project site\u201d with the plaintiffs\u2019 statements in <\/span>Sturbridge<\/span><\/i> that they lived in the \u201cvicinity\u201d of the landfill.\u00a0 It also dismissed allegations that the development would cause \u201cincreasing stormwater runoff from the project site, causing flooding of their properties, overloading the sewer system resulting in sewage backups in their basements, and loss of visual enjoyment of the Belmont Uplands ecosystem\u201d as a \u201cgeneralized list of alleged harms\u201d based on \u201cunspecified\u201d claims.<\/span>36<\/a><\/sup>Id.<\/span><\/span>\u00a0Finally, the court rejected plaintiffs\u2019 claim that they had standing as a ten-citizen group under Mass. Gen. Laws ch. 214, \u00a7 7A because that provision does not create a means for obtaining judicial review of an agency decision and because plaintiffs had instead framed their case as one under Mass. Gen. Laws ch. 30A, \u00a7 14.<\/span>\u00a0<\/span><\/p>\n

III. The Result: A Game of Bait and Switch<\/span><\/b>\u00a0<\/span><\/p>\n

These cases highlight the confusion and potential for injustice created by the interaction between, on the one hand, the two distinct bases for intervening in an administrative proceeding and, on the other hand, the two different provisions governing judicial review under the Massachusetts APA.\u00a0 I discuss in turn several sources of these problems:<\/span>\u00a0<\/span><\/p>\n

(a)<\/span> the similar, but not identical, \u201caggrieved\u201d and \u201csubstantially and specifically affected\u201d standards for injury;<\/span>\u00a0<\/span><\/p>\n

(b)<\/span> the lack of need or incentives for intervenors to present evidence of harm at the administrative stage and for administrative hearing officers to make factual findings regarding intervenors\u2019 specific injuries, given the availability of ten-citizen intervention;<\/span>\u00a0<\/span><\/p>\n

(c)<\/span> judges\u2019 unwillingness to allow plaintiffs to introduce new evidence of their injuries in court; and<\/span>\u00a0<\/span><\/p>\n

(d)<\/span> ambiguity about when an administrative proceeding counts as an \u201cadjudicatory hearing\u201d or a \u201cpublic hearing.\u201d<\/span>\u00a0<\/span><\/p>\n

In combination, these considerations make intervention through the ten-citizen mechanism a game of bait-and-switch\u2014in which the promise of easy intervention at the administrative stage makes it harder to appeal the decision\u2014that can deprive meritorious plaintiffs of their ability to seek a remedy in court.<\/span>\u00a0<\/span><\/p>\n

A. Confusion Created by the \u201cSpecifically and Substantively Affected\u201d and \u201cAggrieved\u201d Standards<\/span><\/b>\u00a0<\/span><\/p>\n

The first source of confusion is the interaction between the \u201cspecifically and substantively affected\u201d standard at the administrative stage and the \u201caggrieved\u201d standard at the judicial stage. \u00a0As the SJC noted in <\/span>Sturbridge<\/span><\/i>, these terms appear to describe very similar standards and therefore \u201cit is likely\u201d that if you satisfy one of them, you will also satisfy the other.<\/span>37<\/a><\/sup>Bd. of Health of Sturbridge v. Bd. of Health of Southbridge, 962 N.E.2d 548, 558 (Mass 2012).<\/span><\/span>\u00a0But \u201clikely\u201d is not \u201ccertain.\u201d38<\/a><\/sup>See Coal. to Preserve Belmont Uplands, No. 12-P-526, 2013 WL 4778128, at *2 (\u201c[A]n agency\u2019s finding that a party is \u2018substantially and specifically affected\u2019 only makes it \u2018likely\u2019 that the party will be considered aggrieved for the purposes of subsequent judicial review. In other words, such a finding does not create a per se grant of standing.\u201d) (citation omitted). <\/span><\/span>\u00a0Yet the courts have established no principled basis for distinguishing between the two standards, or even identified which one is more stringent than the other. \u00a0Given that the SJC has cautioned that \u201cthe term \u2018person aggrieved\u2019 should not be read narrowly,\u201d<\/span>39<\/a><\/sup>Marashlian v. Zoning Bd. of Appeals of Newburyport, 660 N.E.2d 369, 371\u201372 (Mass. 1996).<\/span><\/span>\u00a0it would seem reasonable to hold that any time an individual is \u201csubstantially and specifically affected,\u201d they are also \u201caggrieved.\u201d<\/span>\u00a0<\/span><\/p>\n

B. Disincentives to Developing a Factual Record of Harm During Administrative Proceedings<\/span><\/b>\u00a0<\/span><\/p>\n

Second, the availability of the ten-citizen intervention mechanism makes it less likely that the factual record developed before the agency will include sufficient evidence of how the intervenor-plaintiffs are harmed by the proposal\u2014even if it would not be difficult to make such a demonstration.\u00a0 Individuals seeking to intervene may see only that it is easier to do so as a ten-citizen group than by demonstrating individual harm, especially if they are not represented by counsel, and if they know that the hearing officer is more likely to rule on that basis.<\/span>40<\/a><\/sup>A ten-citizen group need not be represented by an attorney. See, e.g., 310 Mass. Code Regs. 16.20(9)(b) (2022) (\u201cIf no Authorized Representative is identified in the Registration Statement the first person mentioned in the Statement as a member of the group shall be deemed the Authorized Representative of the group.\u201d).<\/span><\/span>\u00a0<\/span><\/p>\n

Even if potential intervenors offer evidence in support of both types of intervention, the board or administrative hearing officer has the discretion to grant intervention on either basis.\u00a0 Indeed, the DEP site assignment regulations effectively conflate the two standards by providing that \u201c[f]or the purpose of the Public Hearing,\u201d a ten-citizen group \u201cshall be considered to be specifically and substantively affected.\u201d41<\/a><\/sup>310 Mass. Code Regs. 16.20(9)(a) (2022).<\/span><\/span>\u00a0Given that it is considerably simpler to determine whether proposed intervenors have complied with the ten-citizen approach than to engage in the more fact-specific inquiry into whether the impact on them renders them \u201cspecifically and substantively affected,\u201d it is not surprising that many hearing officers, like the one in <\/span>Sturbridge<\/span><\/i>, will decide to rule on the basis of ten-citizen intervention alone.<\/span>\u00a0<\/span><\/p>\n

C. Judges\u2019 Unwillingness to Allow Plaintiffs to Submit Evidence of Injury in Court<\/span><\/b>\u00a0<\/span><\/p>\n

Third, the harm caused by intervenors\u2019 disincentives to submit evidence of injury in the administrative proceeding is compounded when, on judicial review, the court determines whether the plaintiffs are \u201caggrieved\u201d based only on the administrative record.\u00a0 Thus, in <\/span>Sturbridge<\/span><\/i> the SJC considered only whether \u201c[t]he administrative record . . . support[s] a conclusion that any of the plaintiffs will suffer prejudice to their individual rights.\u201d42<\/a><\/sup>962 N.E.2d, 734, 744 (2012). <\/span><\/span>\u00a0Similarly, in <\/span>Belmont Uplands<\/span><\/i>, the Court of Appeals stated that \u201cwhether the coalition had standing to maintain its action and invoke G.L. c. 30A review depends on an independent assessment of the administrative record.\u201d<\/span>43<\/a><\/sup>No, 12-P-526, 2013 WL 4778128, at *3 (Mass. App. Ct. Sept. 9, 2013).<\/span><\/span>\u00a0In both cases, in other words, the court did not allow the plaintiffs to introduce additional evidence of aggrievement in court.<\/span>\u00a0<\/span><\/p>\n

The apparent basis for this approach is Mass. Gen. Laws ch. 30A, \u00a7 14(5), which provides that \u201c[t]he review shall be conducted by the court without a jury and shall be confined to the record, except . . . in cases of alleged irregularities in procedure before the agency.\u201d\u00a0 Yet, a determination of whether plaintiffs have standing is not part of the court\u2019s \u201creview\u201d of the agency action\u2014it is a logically prior decision about whether the court has jurisdiction to engage in that \u201creview\u201d at all.\u00a0 Thus, federal courts, for example, allow plaintiffs to submit evidence in support of their standing when they petition for review of a decision of the Environmental Protection Agency\u2019s Environmental Appeals Board.44<\/a><\/sup>See, e.g., Rio Hondo Land & Cattle Co., L.P. v. United States Env\u2019t Prot. Agency, 995 F.3d 1124, 1127 (10th Cir. 2021). In other contexts, the SJC has looked to federal court decisions to guide its interpretation of the Massachusetts APA record-review rule. See Douglas Env\u2019t Assocs., Inc. v. Dep\u2019t of Env\u2019t Prot., 706 N.E.2d 620, 622 (Mass. 1999).<\/span><\/span>\u00a0Mass. Gen. Laws ch. 30A, \u00a7 14(5) thus presents no statutory barrier to allowing plaintiffs to introduce evidence regarding their standing in court.<\/span>45<\/a><\/sup>Cf. Justin Pidot, Jurisdictional Procedure, 54 Wm. & Mary L. Rev. 1 (2012) (arguing that appellate courts should investigate the facts relevant to their jurisdiction even if the jurisdictional issue had not been raised\u2014and the factual record therefore not developed\u2014before the trial court).<\/span><\/span>\u00a0<\/span><\/p>\n

Moreover, the SJC has indicated that the record-review rule \u201cwas not written with a focus on . . . appeal from a non-adjudicatory proceeding.\u201d<\/span>46<\/a><\/sup>Douglas Env\u2019t Assocs., 706 N.E.2d at 622.<\/span><\/span>\u00a0This provides an independent reason to allow plaintiffs to submit evidence in court to support their standing in appeals of site-assignment decisions like the one at issue in <\/span>Sturbridge<\/span><\/i>.<\/span>\u00a0<\/span><\/p>\n

The failure to conduct an independent inquiry into plaintiffs\u2019 standing can lead to the rejection of suits in which the plaintiffs very likely could make the requisite showing of \u201caggrievement.\u201d\u00a0 In <\/span>Belmont Uplands<\/span><\/i>, the plaintiffs lived directly across a small pond from the location of the proposed project.\u00a0 Given their close proximity to the project site and their specific allegations that it would result in harms such as \u201cincreasing stormwater runoff from the project site, causing flooding of their properties, overloading the sewer system resulting in sewage backups in their basements,\u201d the plaintiffs were likely aggrieved by DEP\u2019s decision, particularly as the Massachusetts courts have repeatedly emphasized that \u201cthe term \u2018person aggrieved\u2019 should not be read narrowly.\u201d<\/span>47<\/a><\/sup>Marashlian v. Zoning Bd. of Appeals of Newburyport, 660 N.E.2d 369, 371\u201372 (Mass. 1996).<\/span><\/span>\u00a0For example, in a previous case, the SJC \u201cassume[d] without deciding, as the judge must have, that as close neighbors of the landfill, who complained of the negative impacts of an enlarged landfill on their health and property, the plaintiffs were \u2018aggrieved\u2019 for purposes of G.L. c. 30, \u00a7 14.\u201d<\/span>48<\/a><\/sup>Goldberg v. Bd. of Health of Granby, 830 N.E.2d 207, 212 n.8 (2005). <\/span><\/span>\u00a0The <\/span>Belmont Uplands<\/span><\/i> plaintiffs likely could have met this standard if offered the chance.<\/span>49<\/a><\/sup>Another error by the Court of Appeals in the Belmont Uplands case was its statement that \u201cthe grant of intervener status is triggered purely by operation of a regulation or statute\u201d in that case. 2013 WL 4778128 at *3. The relevant regulation provides that \u201c[a] failure to file a timely response [to a motion] may result in a grant of the relief requested by the moving party.\u201d 310 Mass. Code Regs. 1.01(11)(a)(1) (2022) (emphasis added). As the emphasized language indicates, the presiding officer has the discretion to decide whether to grant a motion because no timely opposition to it has been filed. Cf. Tofias v. Energy Facilities Siting Bd., 757 N.E.2d 1104, 1109 (Mass. 2001) (\u201cBased on that permissive \u2018may,\u2019 [in Mass. Gen. Laws ch. 30A, \u00a7 10 (2022)] this court has repeatedly recognized that agencies have broad discretion to grant or deny intervention.\u201d). It seems perverse that a party\u2019s failure to oppose a motion to intervene, and the presiding officer\u2019s consequent decision not to make specific factual findings in support of granting the motion, should be turned around and used as a basis for denying intervenors access to the courts.<\/span><\/span>\u00a0<\/span><\/p>\n

D. Confusion about \u201cPublic Hearings\u201d Versus \u201cAdjudicatory Hearings\u201d<\/span><\/b>\u00a0<\/span><\/p>\n

Fourth, the DEP site assignment regulations and the <\/span>Sturbridge<\/span><\/i> decision create unnecessary confusion about when an administrative proceeding is a public hearing or an adjudicatory hearing.\u00a0 As mentioned above, one of the SJC\u2019s reasons for ruling that the plaintiffs did not have standing to appeal the Board of Health\u2019s decision in that case was that judicial review as a ten-citizen group under Mass. Gen. Laws ch. 30A, \u00a7 10A, was unavailable because that provision applied only to \u201cadjudicatory hearings,\u201d while the Board of Health\u2019s site assignment proceeding was a \u201cpublic hearing.\u201d<\/span>50<\/a><\/sup>Bd. of Health of Sturbridge v. Bd. of Health of Southbridge, 962 N.E.2d 734, 744 n.28 (Mass. 2012).<\/span><\/span>\u00a0<\/span><\/p>\n

This decision is superficially perplexing, given that the Massachusetts APA defines the term \u201cadjudicatory proceeding\u201d to mean \u201ca proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.\u201d<\/span>51<\/a><\/sup>Mass. Gen. Laws ch. 30A, \u00a7 1(1) (2022).<\/span><\/span>\u00a0A hearing on a Solid Waste Act site assignment application would appear to satisfy this definition, because whether an applicant receives a permit is a determination of the applicant\u2019s legal rights under a statutory provision.<\/span>\u00a0<\/span><\/p>\n

Nevertheless, as the SJC observed in <\/span>Sturbridge<\/span><\/i>, DEP has adopted regulations providing that \u201c\u2018Public Hearings\u2019 pursuant to M.G.L. c. 30A are not \u2018Adjudicatory Proceedings\u2019 within the meaning of M.G.L. c. 30A, \u00a7 1.\u201d<\/span>52<\/a><\/sup>310 Mass. Code Regs. 16.20(1) (2022).<\/span><\/span>\u00a0Mass. Gen. Laws ch. 30A, \u00a7 1 is the definitional section of the Massachusetts APA. \u00a0Section 10A of the APA allows a ten-citizen group to intervene in, and appeal the outcome of, \u201cany adjudicatory proceeding.\u201d<\/span>53<\/a><\/sup>Mass. Gen. Laws ch. 30A, \u00a7 10A (2022).<\/span><\/span>\u00a0Therefore, under the DEP regulations, plaintiffs cannot appeal a site assignment decision as a ten-citizen group pursuant to Mass. Gen. Laws ch. 30A, \u00a7 10A.<\/span>\u00a0<\/span><\/p>\n

However, they <\/span>can<\/span><\/i> appeal as \u201caggrieved\u201d persons under Mass. Gen. Laws ch. 30A, \u00a7 14.\u00a0 As a reminder, this provision allows appeals by \u201cany person . . . aggrieved by a final decision of any agency in an adjudicatory proceeding.\u201d\u00a0 The Solid Waste Act provides that a Board of Health \u201cdecision shall be deemed to be a final decision in an adjudicatory proceeding\u201d for the limited purposes of an appeal by \u201c[a]ny person <\/span>aggrieved<\/span><\/i> by the decision.\u201d<\/span>54<\/a><\/sup>Mass. Gen. Laws ch. 111, \u00a7 150A (emphasis added).<\/span><\/span>\u00a0Thus, even though both section 10A and section 14 of the Massachusetts APA use identical language (allowing appeals from an \u201cadjudicatory hearing\u201d), as a result of DEP\u2019s regulations, a Board of Health site assignment decision under the Solid Waste Act is subject to judicial review under only one of them.<\/span>\u00a0<\/span><\/p>\n

The SJC\u2019s holding regarding the nature of the hearing in <\/span>Sturbridge<\/span><\/i> is even more confusing in light of its holding in a previous case that an administrative process named a \u201cpublic hearing\u201d can be an \u201cadjudicatory proceeding\u201d for purposes of the Massachusetts APA based on the characteristics of the proceeding.<\/span>55<\/a><\/sup>Bay State Harness Horse Racing & Breeding Ass\u2019n v. State Racing Comm\u2019n, 175 N.E.2d 244, 249 (Mass. 1961).<\/span><\/span>\u00a0In that case, applying the general definition of \u201cadjudicatory proceeding\u201d in the Massachusetts APA, the Court held that \u201c[a]n application for a racing license is an \u2018adjudicatory proceeding\u2019 under \u00a7 1(1) for it is \u2018a proceeding before an agency in which the legal * * * privileges of specifically named persons [the applicants] are required by * * * [a] provision of the General Laws [G.L. c. 128A, \u00a7 3] to be determined after opportunity for an agency hearing.\u2019\u201d<\/span>56<\/a><\/sup>Id. (alterations in original).<\/span><\/span>\u00a0The underlying statute, however (Mass. Gen. Laws ch. 128A, \u00a7 3) described the hearing that the State Racing Commission held as a \u201cpublic hearing.\u201d<\/span>57<\/a><\/sup>It is described as a public hearing both in the current version of the statute and in the one in effect in 1961, when Bay State Harness Horse Racing was decided. See Mass. Acts 1959, c. 296, \u00a7 2.<\/span><\/span>\u00a0If it is the substance, rather than the label, of the hearing that matters in one case, why shouldn\u2019t it also be what matters in the other?<\/span>\u00a0<\/span><\/p>\n

IV. Recommendations<\/span><\/b>\u00a0<\/span><\/p>\n

This situation is, at best, unnecessarily complicated and confusing and, at worst, unjust and unfair.\u00a0 This unfairness is particularly likely to arise in environmental justice communities and other neighborhoods where residents may not have the resources to be represented by counsel at the administrative stage of a proceeding.\u00a0 Fortunately, much of the harm could be eliminated by relatively simple actions available to intervenors, administrative hearing officers or presiding officers, the courts, DEP, and the legislature.\u00a0 This section briefly describes recommendations for each group.<\/span>\u00a0<\/span><\/p>\n

A. For Intervenors and their Attorneys<\/span><\/b>\u00a0<\/span><\/p>\n

Despite the pitfalls described above, intervenors and their attorneys can take a number of actions to minimize the likelihood that they find themselves unable to establish their standing to appeal an administrative decision.\u00a0 In particular, they can take the following actions:<\/span>\u00a0<\/span><\/p>\n