HOUSE . . . . . . No. 5301

ttfJe ~ommonbJeaUfJ of :IIa~~atfJu~tt"

LEGISLATIVE RESEARCH COUNCIL

Report Relative to

THE PRESERVATION OF THE NATURAL ENVIRONMENT

FOR SUMJV1ARY, SEETEXT IN BOLD FACE TYPE

April 7, 1971

t,Jr:1JV t=.·r'.J~IA'.N,D ~,r:~·iiO""Oi O·F Lt.\ t~/l~ ~RRARV•c VV' ...... 'I U U ~ v"" i '. .;,... ,"r, .. ,"~h<., ., I

ORDERS AUTHORIZING STUDY

(House, No. 6117 of 1970)

Ordered, That the Legislative Research Council is herebydirected to study the subject matter of current house documentnumbered 3875 of the current year as amended, a proposed con­stitutional amendment relative to the preservation of natural en­vironment, which has been agreed to for the first time by thegeneral court sitting in joint session in 1970. Said council shallreport the results of its study by filing a copy of the same withthe clerk of the house of representatives on or before the lastWednesday of February in the year nineteen hundred and seventy­one.

Adopted:

By the House of Representatives, August 12, 1970By the Senate, in concurrence, August 13, 1970.

(House, No. 5081 of 1971)

Ordered, That the time be exteI)ded to the first Wednesday inApril of the current year wherein the Legislative Research Councilis required to 1eport on its studies relative to (1) state assumptionof the costs of local education (see House, No. 5860 of 1970), and(2) protection of the natural environment (see House, No. 6117 of

_ 1970).

Adopted:

By the House of Representatives, February 22, 1971. By the Senate. in concurrence, February 23, 1971.

4 HOUSE - No. 5301

CONTENTS

{Apr. 1971)

PageOrder Authorizing Study . 0 0 0.0 0 0 • 0 • 0 0 0 0 0 0 0 • 0 0 0 0 0 0 0 0 • 0 0 3Letter of Transmittal to the Senate and

House of Representatives 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ••• 0 0 • 0 • • 6Letter of Transmittal to the Legislative Research Council . 0 0 0 7Summary of Report 0 0 • 0 0 0 0 0 • 0 0 0 0 0 0 0 • 0 0 0 0 • 0 0 0 0 • 0 ••• 0 0 8

CHAPTER I. INTRODUCfIONOrigin of Study 0 0 • 0 0 0 0 • 0 0 0 0 0 0 0 00 0 • 0 0 •• 0 0 0 0 0 0 0 0 0 0 0 20Present Constitutional Provisions 0 0 0 0 0 0 0 • 0 0 0 0 : 0 •• 0 0 0 0 0 22Statutory Provisions 0 •• 0 • 0 • 0 0 0 0 •• 0 •• 0 0 • 0 • 0 0 0 0 •• 0 0 • 0 22

CHAPTER II. ENVIRONMENTAL POLLUTION ANDTHE ROLE OF GOVERNMENT

The Nature of the Problem 0 0 0 0 0 • 0 0 0 • 0 0 0 0 • 0 • 0 0 0 0 •• 0 • 0 23The National Environmental Policy Act of 1969 . 0 0 0 0 0 • o. 24The Environmental Quality Improvement Act of 1970 " o. 31Reorganization of Federal Agencies 0 0 • 0 0 ••• 00 • • • • • • • •• 32Relationship Between Federal and State Government

in Pollution Control Programs .. 0 0 •• 0 • 0 0 0 •••• 0 0 • • •• 35Local Government .. 0 ••••••••••• 0 •••• 0' •• 0 •• 0 • • • •• 39

CHAPTER III. CONSTITUTIONAL AND LEGISLATIVEPOLICY OF OTHER SELECTEDSTATES

Introduction .... 0 0 0 0 0 0 ••• 0 0 0 0 0 0 0 0 0 0 0 • 0 0 • 0 0 0 • 0 0 0 • 0 41New York Constitutional Amendment 00000.0000 • 0 0 • 0 0 0 42Michigan Amendment 0 0 • 0 •• 0 ••••••• 0 0 0 • 0 0 0 ••••• 0 • 0 42Illinois Constitution 0 0 0 • 0 0 • 0 0 ••• 0 0 0 0 0 0 0 • 0 • 0 0 • 0 0 • 0 o' 43Florida Provision . 0 • 0 • 0 • 0 0 0 •• 0 0 0 ••• 0 ••••• 0 0 0 0 0 0 0 0 0 43Aspects of Selected Provisions " . 0 ••••• 0 •••• 0 • 0 0 •• 0 • 0 43Maine Environmental Improvement Commission .. 0 0 •• 0 0 0 44New York Department of Environmental Conservation .. 0 0 45Illinois Environmental Protection Agency 0 0 0 ••• 0 • 0 0 •• 0 0 46Michigan Right to Sue Statute 0" 0 •• 0 0 • 0 • 0 0 • 0 0 • 0 0 0 0 • 0 47Vennont "Pay as You Pollute" Law. 0 •• 0 0 0 • 0 • 0 0 0 • 0 0 0 0 0 49Maine Wetlands Act .. 0 • 0 0 •• 0 • 0 0 0 0 0 0 0 ••• 0 •• 0 0 0 0 ••• 0 50

CHAP'Intr'EnfcTheTheEquGovEmiInveTheMas~

EnfcAdrrTheTheTheThe

CHAM

IntreHomThe]The]The]

[Apr. 1971 J HOUSE - No. S301

CONTENTS (continued)

5

Page3

678 t

202222

23243132

3539

414242434343444546474950

'<

CHAPTER IV. MASSACHUSETTS LAWIntroduction '0 0 0 0 • 0 • •• 52Enforcement Proceedings in General 0 0 •••• 0 • 0 ••• : 0 53The Law of Trespass. 0 ••••• 0 0 0 •• 0 •••• 0 ••• 0 0 0 0 0 ••• o. 55The Law of Nuisance .. 0 • 0 0 •••••••••••• 0 •••• 0 •• 0 0 o. 56Equitable Considerations in Injunction Suits . 0 0 • 0 ••••• o. 60Govenlmental Activity and Sovereign Immunity . 0 •••••• 0 62Eminent Domain 0 0 0 0 •• 0 •• 0 ••• 0 0 0 • • • • • • •• 69Inverse Condemnation Litigation ... 0 0 ••• 0 0 •• 0 ••••••• 0 70The Public Trust Doctrine 00' 0 0 • 0 0 • 0 •• 0 0 0 0 •• 0 • 0 0 • 0" 73Massachusetts Law on Public Trust Doctrine o. 0 • 0 • 0 0 ••• 0 75Enforcement of Public Trust Obligations 0 •• 0 0 0 0 • 0 0 0 0 • •• 78Administrative Remedies 0 0 0 0 0 •• 0 0 0 •• 0 0 0 •• 0 0 • 0 ••• 0 • 0 80The Department of Natural Resources . 0 0 0 • 0 •• 0 • 0 • 0 0 0 •• 81The Department of Public Utilities .. 0 •• 0 •• 0 0 ••• 0 0 0 • 0" 84The Department ofPubIic Works. 0 00' •• 000 •• 0 •• 0 ••• o. 85The Department of Public Health .. 0 0 0 0 0 •• 0 • 0 0 •• 0 • 0 • •• 87

CHAPTER V. POSSIBLE IMPACT OF THE PROPOSEDCONSTITUTIONAL AMENDMENT

Introduction .. 0 0 0 0 • 0 0 •• 0 0 •• 0 • 0 0 •••• 0 •• 0 0 •• 0 •••• 0 0 90House, No. 3875 of 1970 ..... 0 • 0 0 •• 0 ••• 0 • 00' •••• 0 •• 92The Kiernan Amendment . 0 0 0 •• 0 0 • 0 0 0 0 •• 0 0 00 0 • • • • • •• 98The Hatch Proposal . 0 0 •••••••• ' 0 0 •••• 0 •• 0 0 0 0 0 • • • • •• 101The Proposed Constitutional Amendment . 0 0 ••• 0 00 0 ••• 0 105

6 HOUSE - No~S301

LETTER OF TRANSMITTAL TO THESENATE AND HOUSE OF REPRESENTATIVES

[Apr. 1971]

To the Honorable Senate and House of Representatives:

GENTLEMEN: - The Legislative Research Council submits here­with a report prepared by the Legi*tive Research Bureau basedon House Order, No. 6117 of 1970 relative to a study of thesubject matter of House, No. 3875 of 1970 dealing with thepreservation of the natural environment.

The Legislative Research Bureau is limited by statute to statisti­cal research and fact finding. This report therefore contains factualmaterial only, without recommendations or legislative proposals. Itdoes not necessarily reflect the opinions of the undersigned mem­bers of the Council.

Respectfully submitted,

MEMBERS OF THE LEGISLATIVE RESEARCH COUNCIL.

SEN. JOSEPH D. WARD of Worcester,Chairman.

REP. JOSEPH B. WALSH of Boston,Vice Chairman.

SEN. ANDREA F. NUCIFORO of Berkshire.SEN. JOHN F. PARKER of Bristol.SEN. FRED I. LAMSON of Middlesex.REP. CHARLES F. FLAHERTY, JR. of Cambridge.REP. ROBERT B. AMBLER of Weymouth.REP. JOHN F. COFFEY ofW. Springfield.REP. SIDNEY Q. CURTISS of Sheffield.REP. HARRISON CHADWICK of Winchester.REP. JAMES A. ADAMS of Westfield.REP. WILLIAM H. RYAN of Haverhill.

To the

GENLegislalNo. 38to the]

TheIts scoIlimit B

PeterCollege

Respectfully submitted,

To the Members of the Legislative Research Council:

GENTLEMEN:- House Order, No. 6117 of 1970 directed theLegislative" Research Council to study the subject matter of House,No. 3875 of 1970, a proposed constitutional amendment relativeto the preservation of the natural environment.

The Legislative Research Bureau submits such a report herewith.Its scope and content are determined by statutory provisions whichlimit Bureau output to factual reports without recommendations.

Peter Donovan, Esq., Professor of Environmental Law at BostonCollege Law School, authored the report.

[Apr.

ts here­u basedof the

'ith the

statisti­, factualosals. Itd mcm-

rCIL.

Jzairman.

t

1971 ] - HOUSE - ''No. 5301

tI;fJe \toinmontuealtfJ of :JIassatbu~etts

LETTER OF TRANSMITTAL TO THELEGISLATIVE RESEARCH COUNCIL

7

Jzairman.e.

1mbridge.

~r .

DANIEL M. O'SULLIVAN, DirectorLegislative Research Bureau

8 HOUSE - No. 5301 [Apr. 1971 ]

PRESEl\VATION OF THE NATURAL ENVIRONMENT

SUMMARY OF REPORT

Introduction

Origin of Study

This report is submitted by the Legislative Research Councilpursuant to House, No. 6117 of 1970 directing a study of thesubject matter of House, No. 3875 of 1970, a proposed constitu­tional amendment relative to the preservation of the natural en­vironment. The proposed amendment seeks to establish aright ofthe people to clean air and water, freedom from excessive andunnecessary noise and to the natural, scenic, historic,and estheticqualities of their environment. This amendment was "agreed to"by a joint session of the General Court sitting as a convention onAugust 5, 1970. It is a revision of a bill, House, No. 3875,originally filed by Representative Robert D. Wetmore of Barre andit underwent several modifications during the process leading to itsfrrst final approval by the joint session.

General Developments

The proposed amendment arises in the context of a growingnational consciousness concerning the degree of ecological damage,inflicted by our industrialized society and a strong movement for :environmental reform. Major constitutional and legislative develop­ments have occurred throughout the United States on both thefederal and state levels. These innovations are accorded specialattention within the report and clearly reveal the extent to whichthe proposed amendment to the Massachusetts constitution is itselfa product of an overall national phenomenon and is startlingneither in concept, scope nor enactment.

Feder

PercontaAlthosummtowarthat'shalldes sAct cviromagencimpacalterntive rrequiJand ienharlishes

Tothe j

sions.in ev(otherenvir<consi«

FiI1existiJPoliC)Presicinto «

in th{Sul

Qualifor iIJand 11subst~

[Apr. 1971] HOUSE -- No. 5301 9

lENT

1 CouncilIy of theconstitu­

atural en-a right of~ssive and)d estheticgreed to"ention on~o. 387S,Barre and:ling to its

a growingal damage ~ement fore develop-both the

ed special: to which)n is itselfs startling

Constitutional and Legislative Action

Federal Action

Perhaps the most far-reaching of these legislative mandates iscontained in the National Environmental Policy Act of 1969.Although the Act's provisions are most extensive, they are brieflysummarized as follows. First, the statute reorders national prioritiestoward environmental protection and declares in section 102(1)that "the policies, regulations, and public laws of the United Statesshall be interpreted and administered in accordance with the poli­cies set forth to the fullest extent possible." In section 101(a), theAct declares its dual objective of "restoring and maintaining en­vironmental quality." Second, the statute imposes upon all federalagencies and officials the obligation to consider the environmentalimpact of all proposed actions and to adopt, whenever possible,alternative plans which will produce less environmentally destruc­tive results. Thirdly, the law fosters intergovernmental relations byrequiring the federal government to make available to the statesand its political subdivisions useful information to restore andenhance the quality of the environment. Finally, the statute estab­lishes a Council on Environmental Quality.

To aid federal officials in discharging their substantive duties,the Act also contains several "action-forcing" procedural provi­sions. One of these provisions requires federal officials to includein every recommendation or report on proposals for legislation andother major actions significantly affecting the quality of the humanenvironment, a detailed statement on certain specified ecologicalconsiderations.

Finally, where there is a clear conflict between an agency'sexisting statutory authorization and the National EnvironmentalPolicy Act, the statute requires that the agency propose to thePresident by July 1971 measures to bring its authority and policyinto conformity with the intent, purposes and procedures set forthin the Act.

Subsequently, Congress declared its belief in the EnvironmentalQuality Improvement Act of 1970 that the primary responsibilityfor implementing the national environmental policy rests with stateand local governments. In harmonization with this philosophy, thesubstantive air and water pollution legislation depends in large part

10 HOUSE - No. 5301 [Apr.1971]

upon federal and state cooperation. In a few specific areas, federallaw preempts state action.

This legislation also created the Office of En\'ironmental Qualityto serve as a staff and administrative arm of the Council ofEnvironmental Quality.

To implement the national policy on environmental affairs, thePresident in 1970 invoked his executive reorganization powers toestablish (1) the Environmental Protection Agency and (2) theNational Oceanographic and Atmospheric Administration. Theseagencies consolIdated various activities scattered among numerousbureaus and departments.

Developments in Other States

In the past few years, all fifty states have responded in someway or other to the rising citizen demand for greater environ­mental protection. Several states have enacted strong laws to com-·bat environmental destruction. These statutes often are character-·

. ized by innovative approaches to the problems of air, water, landand noise pollution. On July 27, 1970, the State of Michiganpassed the fIrSt statute in the United States to permit privatecitizens to sue all polluters, including public as well as privateparties. Under this statute, every citizen, simply by virtue of hiscitizenship status, has an enforceable right to a decent environ­ment; he in effect becomes a private attorney general insofar asenvironmental matters are concerned. Another example typifyingthe distinctive approach of these statutes is the so-called "pay asyou pollute" law of Vermont which imposes pollution charges onall users of the state's waters who do not process or treat theireffluent discharges in accordance with state water quality stan­dards.

In order to effectively implement their antipollution programs,many states, among them Illinois, Maine and New York, havecreated environmental protection agencies. The scope of operationand the powers of these agencies vary greatly but the delegation ofregulatory and investigatory responsibilities to these specializedagencies is an effective device ill combatting pollution. It is antici­pated that the trend in this direction will continue.

Finally, constitutional amendments have been passed in manystates and they serve not only to create new substantive rights and

obligatenvirOJamendWetrn(Jfrom 1chusetlin constituti(Jsuppor

ThetgrOUpelconsenfind hitheoriewhichindividleithercommoavailabJcirCUImto comequitabnature,resolutiThis ocmultipltpossibileffectivmon la'troIs allstate g(and tbremedi~

sentativdoctrintcapabilito consactivity,

[Apr.1971] HOUSE - No. 5301 11

federal

QualitylOCi! of

rlrs, the,wers to(2) the. Thesennerous

in someenviron­to com­laracter-­er, landfichigan

privateprivate

e of hisenviron­lsofar asypifying"pay asilfges on~at theirtty stan-

rograms,rk, have.peration~ation ofecializedis antici-

in manyights and

obligations but also to provide constitutional validity for the recentenvironmental protection legislation. Many of these constitutionalamendments contain language which was used in the originalWetmore Bill. However, much of this language has been deletedfrom the fmal version of the proposed amendment to the Massa­chusetts Constitution. The proposed amendment, therefore, is mildin comparison with the language of other recently approved con­stitutional amendments and legislative enactments which supplysupporting precedent for its adoption in Massachusetts.

Massachusetts Law

There is no body of legal principles which can be recognized andgrouped under a heading such as environmental law. Rather, theconservationist and environmentalist seeking legal redress will oftenfind himself proceeding along traditional tort or administrative lawtheories. Many activities of industrial and commercial concernswhich pollute the environment also constitute a tort to privateindividuals. In these instances, the private citizen who has sustainedeither personal injury or property damage may seek relief on acommon law negligence, trespass or nuisance theory. He also hasavailable specific statutory causes of action he can bring in specialcircumstances. Under these forms of action he can recover damagesto compensate him for his loss and, where appropriate, can recoverequitable relief. While these actions are primarily compensatory innature, they sometimes accomplish results more extensive thanresolution of the specific dispute of the litigants before the court.This occurs when many private citizens have been damaged so thatmultiple individual actions or a class action may be brought. Thepossibility of a heavy damage recovery or recoveries serves as aneffective antipollution device. In addition to these familiar com­mon law remedies, there exist many important administrative con­trols and remedies to protect the environment. Several agencies ofstate government have jurisdiction over pollution causing activitiesand they constitute prime sources for initiating protective andremedial action. In many instances, action by these public repre­sentatives is the exclusive remedy. Finally, under the public trustdoctrine and the law of mandamus a private citizen has a limitedcapability to compel public officials to discharge their public dutyto conserve public property and to avoid environmentally harmfulactivity.

12 HOUSE - No. 5301 [Apr. 1971]

Trespass and Nuisance

Both trespass and nuisance are separate fields of tort liabilityrelating to actionable interference with proprietary interests inland. They may be distinguished by comparing the interest pro­tected. Trespass protects an owner's interest in the exclusive pos­session of his property from unlawful invasions or entry byanother or some tangible thing under his control. Nuisance on theother hand protects a private party in the use and enjoyment ofhis land free from unreasonable interferences by others. The dis­tinction between trespass and nuisance is, if not illusory, oftenillusive. The same conduct on the part of the defendant may andoften does constitute both a trespass and a nuisance. Both haveparticular application to air pollution, for example. Nevertheless,the distinction can have important legal implications. In the fustplace, the balancing test, which is the essence of the law ofnuisance, and which requires the court to weigh the social andeconomic utility of the defendant's conduct with the plaintiff'sright to the unassailed use and enjoyment of his land, theoreticallyis not relevant to a trespass action. Second, where the action isbrought on the theory of nuisance alone, the court is not calledupon to determine whether the conduct also constitutes a tres­passory invasion. In such cases, the courts' treatment of the in­vasions solely in terms of the law of nuisance does not mean thatthe same conduct cannot also be regarded as a trespass.

By far the most important and potentially effective remedyavailable to the private citizen to protect the environment is thetraditional common law nuisance abatement suit. A major barrierto full and effective use of this remedy as an anti-pollution weaponlies in the old common law distinction between private and publicor common nuisances. This distinction which is still followed underMassachusetts law places jurisdiction over public or commonnuisances exclusively in the hands of public officials. primarily theAttorney General. To be classified as a public or common nuisanceit is not sufficient that a number of people are affected. Theinterference must have a substantial effect on a right which iscommon to the public and because of this, even a number ofseparate interferences with private rights will not necessarily createa public nuisance.

Equita4

Equicitizenrestrairsetts, 1at lawfactorsinjunc1intereSlwell. Athe beharm (defendcommlwhereplaintiJwill no

Govern

Oftei. is not;local g(erectedtrines. :its agerapart flthe extcapacit:compleGovernforcemcgovernrtion w:immuniand suiact in cdischar1tional (by the

[Apr. 1971] HOUSE -- No. 5301 13

..

liabilityrests inest pro-sivepos-ntry by~ on thement of tThe dis-y, oftennay and)th have~rtheless,

the fIrstlaw of

dal andIlaintiffstreticallyaction isot calleds a tres-f the in-lean that

remedynt is theIr barrierI weaponId publiced under

~commonlarily thenuisance

:ted. Thewhich isImber ofily create

Equitable Considerations

Equitable relief is always discretionary and thus the privatecitizen who has been tortiously harmed is not always able torestrain or abate environmentally harmful activity. In Massachu­setts, the plaintiff must always prove the inadequrcy of his remedyat law before he will receive equitable relief. Of all the otherfactors considered by a court in deciding whether to issue aninjunction, the most important is the balancing of the economicinterests both of the plaintiff and defendant and of third parties aswell. An injunction will be denied when the court determines thatthe benefit to the plaintiff is outweighed by the gravity of theharm caused the defendant or the public. Often the conduct of thedefendant constituting the tort is economically beneficial to thecommunity as a whole. This is particulary true in pollution caseswhere the defendant is an industrial plant. Thus, in many cases theplaintiff is left to his remedy at law even though money damageswill not fully compensate and protect him.

Governmental Activity

Often, the polluter or source of environmentally harmful activity. is not an industrial or commercial concern but an organ of state orlocal government. Here the private party encounters a major barriererected by the sovereign immunity and municipal immunity doc­trines. Basically, the private citizen can sue the Commonwealth andits agencies only to the extent consent has specifically been given;apart from several special statutes, municipalities are liable only tothe extent they act in a proprietary, as opposed to, a governmentalcapacity. But this does not mean that the government is otherwisecompletely free from citizen control and able to act as it wishes.Governmental consent is not always a prerequisite to citizen en­forcement proceedings. Direct suits may be brought against thegovernment under the eminent domain provisions of the Constitu­tion when it deprives citizens of their property. Moreover, theimmunity which insulates governmental entities from actions at lawand suits in equity does not attach to public officials. When theyact in contravention of their duty, exceed their authority or fail todischarge their responsibility, -they incur personal liability. Addi­tional citizen control over abusive governmental action is accordedby the writ of mandamus. Moreover, the fact that the government

14 HOUSE - No. 5301 [Apr.1971]

has sponsored or licensed specific activity by private parties whichresults in ecological damage does not insulate them from liabilityand suit except to the precise limits of the license granted. Finally,the Commonwealth itself has jurisdiction and authority to controlthe activity of its agencies, municipalities and licensees.

Mandamus

Mandamus is an extraordinary legal action by which the court,on suit of a private citizen, will direct an officer to perform purelyministerial acts or to make decisions in matters involving an exer­cise of discretion but without directing or influencing the exerciseof that discretion or controlling the substance of that decision. Itsmost important use lies in the case where a public official refusesto act or seeks to act outside the scope of his authority. Itsapplication to environmental considerations is most clearly seen inthe public trust doctrine.' Any person merely by reason of citizen­ship alone has standing to petition for a writ of mandamus, afterhaving exhausted all other administrative and judicial remedies.

Taking Qf Private PrQperty for Public Use

Article X of the Declaration of Rights to the Constitutionprovides that private property cannot be appropriated to publicuses without payment of reasonable compensation. Under existinginterpretations, this provision extends well beyond direct govern­mental action to cover informal "condemnation" of property.

The "taking" may be indirect and need not completely deprivethe private landowner of all of his proprietary interests. If in theinterest of preserving wetlands or for other ecological purposes, anowner is denied the use of his property by a public authority withthe result that the property becomes economically valueless, suchaction may constitute a "taking". When an unintended physicalinjury to private property results from governmental activity aninverse condemnat}on suit may lie if the injury is of sufficientmagnitude as to constitute a "taking".

The law of inverse condemnation is entangled in a complex webof doctrinal threads but essentially it is an eminent domain pro­ceeding brought by a private party rather than the government ona theory that private property has been taken for public useswithout payment of reasonable compensation.

The Pui

M~

It is pr4preserveto propby pureof the,of theGeneralpurposeever, d4sources

Whilewhetherof parti,First, tbpublic tlpublic tJhigher Slother rnlands onrationaleistrativeenvironnagencies

Sinceof the puses, rnapublic tGeneral 4

Administ

Underenacted,pollution'Many ofspecificstances,control I

[Apr.1971] HOUSE - No. 5301 15

r ·

ies whichl liability. Finally,o control

he court,m purelyan exer­

~ exercise:ision. Itsat refusesority. Itsy seen inIf citizen­lUS, afterdies.

Ilstitutionto publicr existing:t govern­:rty.y depriveIf in therposes, an>rity withless, suchI physicalctivity ansufficient

lplex webmain pro­nment onlblic uses

The Public Trust Doctrine

Massachusetts is a leading exponent of the public trust doctrine.It is predicated upon the belief that certain properties ought to bepreserved and protected for the common use. The doctrine appliesto property which has been acquired by the Commonwealth eitherby purchase, devise or taking, and with respect to which the terms

• of the acquisition provided that it should be used for the benefitl' of the public. It may also be property with respect to which the

General Court has manifested an intent that it be used for publicpurposes by enactment of protective statutes. The doctrine, how­ever, does not require an irrevocable commitment of natural re­sources to certain uses.

While the critical question in the area of public trust litigation iswhether the state has made commitments with respect to the useof particular resources, two central conditions are controlling.First, there exists no prohibition against the government conveyingpublic trust property or adopting new uses for it. Second, wherepublic trust property is involved, the government must observe

, higher standards with respect to its activity than it must observe inother matters. Inconsistent uses can be adopted for public trustlands only through clear and explicit statutory language. Thus, therationale behind the doctrine seems to be the prevention of admin­istrative decisions which might have detrimental effects upon theenvironment and to foster the awareness on the part of stateagencies of the possible implications of their decisions.

Since the theory of public trust litigation is that the conservatorof the property in question is not using it for its intended publicuses, mandamus is the proper remedy. A suit in equity to enforcepublic trust obligations can be brought only by the Attorney

~ General or taxpayers authorized by him to bring it by relation.

Administrative Remedies"

Under existing statutes, many of which have only been recentlyenacted, several state agencies have wide authority and control overpollution and other activity significantly affecting the environment.Many of these agencies have within their statutory authorizationsspecific provisions creating administrative remedies. In some in-

" stances, a person may initiateadnlinistrative action to abate orcontrol pollution; in others, he is granted the right of judicial

16 HOUSE - No. 5301 [Apr. 1971 ]

review of agency action where he is a party in interest or aggrievedwithin the meaning of the statute. Moreover, subject to certainconditions, relief against agency action may be sought through thestate's Administrative Procedure Act (G.L. c. 30A).

The specific rights of citizens in these areas vary greatly fromagency to agency. But their overall impact is clear. In this area ofpublic responsHJility, the average citizen has very little control overinterferences willi the quality of the ecosystem in which he lives orworks or which he uses for recreation.

Possible Impact of the Proposed Amendment

Of the three versions in which the proposed amendment ap­peared during the legislative process, House, No. 3875 as originallyfIled by Representative Wetmore contained the greatest potentialfor change in existing law and practice. Many changes were madeboth to the language and probable impact of the proposed amend- <

ment by the Kiernan amendment and still more were made by theCommittee on Bills in Third Reading.

The Wetmore Bill

The major changes in the existing Article XLIX of the Amend­ments to the Constitution which would have resulted from theWetmore Bill spring from essential differences in the tenor or tone ;of the two provisions. The existing constitutional amendment hasfvery limited effect. It simply provides that the conservation, devel-!:opment and utilization of the Commonwealth's natural resources!are public uses and gives the General Court power to take private'property for the purpose of securing and promoting these public'uses upon payment of reasonable compensation. The Wetmore Bill:would have far greater impact.

The title and lust paragraph of the Bill contained the declara-,tion that there exists a "right of the people to clean air, pure;water, freedom from excessive and unnecessary noise, and the,lnatural, scenic, historic, and esthetic qualities of their environmentl(which) shall not be abridged." For the first time the Constitution'would recognize a right of the people to environmental quality'which would stand in juxtaposition to the traditional right to)acquire and exploit property and natural resources. Because the

provisibe ab:individwould

Thechang€:or COli

incIudlmay 11mightby tluof th<:unreasland.langmlsance

Otl1whichconfolthe Gdeclarof thEeventennsresoUJof eccities.

Onthe s(

the Cof 1mwildelcanceenjoyof thproteipropepeopIthe (

[Apr. 1971 ] HOUSE - No. 5301 17

199rieved» certainough the

tly froms area oftrolovere lives or t

ment ap­originallypotentialere maded amend­Ie by the

~ Amend­from the)r or tonelment hason, devel-resources

ke private~se publictInore Bill_e declara-air, pureand the

riromnentnstitutional quality

right to '.~cause the '>

provision spe,aks in terms of a right of the people which shall notbe abridged it is possible that the right exists in the peopleindividually and not merely collectively so that the provisionwould be subject to direct citizen enforcement.

The declared "right" language might have produced significantchanges in the law of nuisance relative to both private and publicor common nuisances. An expansion in the concept of nuisance toinclude both activity and results not previously considered tortiousmay have followed, but of equal importance a substantial revisionmight have occurred in the traditional balancing principle utilizedby the courts to determine whether the social and economic utilityof the defendant's conduct is such as to keep it from being anunreasonable interference with the plaintiffs use and enjoyment ofland. Moreover, it is possible that the "shall not be abridged"language may have rendered obsolete the public or common nui­sance doctrine.

Other provisions established a clear constitutional standard towhich all legislation and administrative practice would have toconform at least prospectively and imposed affirmative duties uponthe General Court or all agencies of government to implement thedeclared environm<:ntal policy. It is even possible that the languageof the Bill could have protected certain property from despoilationeven absent protective government action. Also the proposal'sterms indicate an intent to shift from the property oriented,resource exploitation philosophy of the past to a new philosophyof ecological protection and suggests a reordering of societal prior­ities.

On another point, the Wetmore Bill may have greatly expandedthe scope and application of the public trust doctrine. It directedthe General Court to "provide for the acquisition and dedicationof lands, structures, (,lnd waters which, because of their beauty,wilderness character, or geological, ecological, or historic signifi­cance, should be preserved and administered for the use andenjoyment of the people." Under the traditional concept, propertyof this character which has not been acquired by the state is notprotected by the judicially developed public trust doctrine. Onceproperty has been dedicated to the use and enjoyment of thepeople, under the Wetmore Bill, it could only be disposed of bythe General Court and then only by a two-thirds vote of each

18 HOUSE -- No. 5301 [Apr. 1971 ]

house in two successive years. The protection afforded by theseprovisions greatly exceeds that which currently exists.

Finally, the strong and even absolute language of the Bill mayhave modified mandamus procedures. The critical question iswhether the language is sufficiently clear and definite as to imposeaffIrmative duties upon public officials to abate air, water andnoise pollution which could support a petition for writ of man­damus.

The Kiernan Amendment

The frrst major change made by the Kiernan amendment (of­fered from the floor by Representative Cornelius F. Kiernan ofLowell) was the elimination of language guaranteeing the right oftile people to ecological values. Although the amendment con­tinued to recogniz-e a right of the people, it provided only that theprotection of the people in this right is a public purpose. Thedeletion of the abridgement language removed the demandingnature of the original language and could be interpreted as pre­cluding citizen enforcement. However, both the House and SenateCounsel indicate that the purpose of this change was not to defeatcitizen enforcement possibilities, but to avoid pnnecessary litigationin de minimus situations.

Other major changes made by this amendment were: (a) thedeletion of the policy declaration and (b) the substitution of astraight eminent domain provision in lieu of a specific directive tothe Legislature to acquire natural resources. These changes appearto reassert powers which the General Court already possesses andwould not support the imposition of affirmative duties upon theGeneral Court or other agencies and officials of the government.

The inclusion of the proposal moved by Senator James De­Normandie of Lincoln within the Kiernan amendment lessened theprotection afforded public trust lands by the Wetmore Bill. As aresult, inconsistent uses and disposition of these properties can beaccomplished by only one two-thirds majority vote of each branchof the General Court, in contrast to the Wetmore proscription ofsuch a majority by two successive legislative sessions.

The Hatch proposal (presented by Representative Francis W.Hatch, Jr. of Beverly) guaranteed the right of any citizen toenforce by legal or equitable action the rights and responsibilities

set forlsion h~

ing la\llessenthand prjtrust, 1

emerge,

The Pn

TheCommipotentiappearretainseach hsistentexpansiright 0

points,Genera:

[Apr. 1971] HOUSE -- No. 5301 19

by these

Bill mayestion .

IS

o imposeater andof man-

tl1ent (of-ernan ofright of

ent con-that the

ose. The~manding

I as pre-d Senateto defeatlitigation

(a) theion of aective tos appear~sses andlpon thenent.mes De-

~~ned theill. As as can be1 branchption of

mcis W.tizen to,sibilities ,O'

set forth in the proposed constitutional amendment. If this provi­sion had remained in the final version substantial changes in exist­ing law and practice would have resulted. Although the provisionessentially is addressed to the standing issue, significant substantiveand procedural changes in the law relating to the nuisance, publictrust, mandamus and governmental activity doctrines would haveemerged.

The Proposed Amendment

The final version of the proposed amendment as revised by theCommittee on Bills in Third Reading seems to have very littlepotential impact upon existing law and practice. Only two areasappear affected. The frrst lies in the public trust area since itretains the DeNormandie proposal requiring a two-thirds vote ofeach house of the General Court to dispose of or adopt incon­sistent uses of public trust property. The second is a possibleexpansion of nuisance concepts as a result of the retention of theright of the people to environmental quality. Beyond these twopoints, the amendment seems largely duplicative of powers that theGeneral Court now possesses.

20 HOUSE - No. 5301

tlbe «:ommonhltaltb of _assatbusetts

PRESERVATION OF THE NATURAL ENVIRONMENT

[Apr. 1971 ]

ccUIacmlne

Chapter I

INTRODUCTION

Origin of Study,By a directive of the General Court (House, No. 6117 of 1970),

the Legislative Research Council is required to report upon aproposed legislative amendment to the Constitution of the Com­monwealth relative to the preservation of the state's natural en­vironment (House, No. 3875 of 1970, as amended). Basically, theamendment establishes the right of the people to clean air andwater and freedom from unnecessary noise; the General Court isempowered to enact legislation to protect such rights and toacquire lands, easements or other interests deemed necessary toeffectuate the purposes intended by the amendment; and, onceacquired, the use and disposition of such lands, easements or otherinterests are severely limited. The full text of the proposal isprinted below.

Article of Amendment

Article XLIX of the Articles of Amendment to theConstitution is hereby annulled and the following isadopted in place thereof: - The people shall have theright to clean air and water, freedom from excessive andunnecessary noise, and the natural, scenic, historic, andesthetic qualities of their environment; and the protec­tion of the people in their right to the conservation,development and utilization of the agricultural, mineral,forest, water, air and other natural resources is herebydeclared to be a public purpose.

The general court shall have the power to enact legisla­tion necessary or expedient to protect such rights.

pcdi:talco

ThisRobertmittee I

A joi22, 19~

yeas aradopteewhich ~

244 YtSenatorvote ofof theand isexceptRepresegrantedthe pro'

In joireporteefinal drboth thby a VOi

Otherdeclarat:restricti1

of intertion ofment th

[Apr. 1971] HOUSE - No. 5301 21

IJ -!

~T

f 1970),upon ale Com­ural en­illy, theair and

20urt isand to

isary tod, onceJr otherposal is

theis

the.nd

~.ndec-)n,~al,

:by

ila-

;~

In the furtherance of the foregoing powers, the generalcourt shall have the power to provide for the taking,upon payment of just compensation therefor, or for theacquisition by purchase or otherwise of lands and ease­ments or such other interests therein as maybe deemednecessary to accomplish these purposes.

Lands and easements taken or acquired for such pur­poses shall not be used for other purposes or otherwisedisposed of except by laws enacted by a two thirds vote,taken by yeas and nays of each branch of the generalcourt.

This proposed amendment, as filed originally by RepresentativeRobert D. Wetmore of Barre, was reported favorably by the Com­mittee on the Judiciary on April 21, 1970.

A joint convention of both branches of the Legislature on April22, 1970 ordered the proposal to a third reading by a vote of 262yeas and no nays. However, three substantial amendments wereadopted. One, by Representative Cornelius F. Kiernan of Lowell,which substituted an entirely new draft, was adopted by vote of244 yeas against 17 nays. A second amendment, offered bySenator James DeNormandie of Lincoln, was passed on a standingvote of 46 to 10. This amendment imposed procedural restrictionsof the· alienation of property acquired for conservation purposesand is the same as the last paragraph in the present proposalexcept in one major provision. The final amendment, sponsored byRepresentative Francis VI. Hatch, Jr., of Beverly, would havegranted aggrieved persons rights both in equity and law to enforcethe provisions of the amendment.

In joint session, on August 5, 1970, a further amended draft wasreported by the Committee on Bills in the Third Reading. Thisfinal draft which eliminated the Hatch amendment and modifiedboth the Kiernan and the DeNormandie amendments was agreed toby a vote of-239 yeas and no nays.

Other provisions deleted from the original proposal were (1) thedeclaration of policy as to the rights of the people, (2) a morerestrictive limitation on the power of the General Court to disposeof interests acquired for ecological purposes, and (3) the imposi­tion of an affirmative obligation upon the General Court to imple­ment the provisions of the amendment.

----------------------

22 HOUSE - No. 5301 [Apr.1971 J

Present Constitutional Provisions

Article XLIX, adopted on November 5,'1918, was the firstconstitutional provision that related to conservation. It providedthat the conservation, development and utilization of the state'snatural resources were a public use; the General Court was em­powered to take private property for the purpose of, securing andpromoting these public uses and just compensation had to be paidfor any property taken.

In addition, Part I, Article X of the Constitution containssomewhat similar provisos with respect to the taking of land forpublic purposes, namely, reasonable compensation and approval bythe legislative body.

Statutory Provisions

In recent years legislative interest in environmental problems hasshown a marked increase. Statutes enacted may be classified in twogeneral categories, those that are intended to .induce industry andindividuals to help abate pollution through tax abatements andthose that empower various public agencies to regulate the use anddisposal of water, sewage and other contaminants and the construc­tion of facilities with respect thereto.

In regard to the former, for example, any equipment, facility ordevice installed on or attached to real property for the purpose ofabating or preventing pollution of the atmosphere has been ex­cluded from the real estate tax levy since 1961 (G.L. c. 59, s. 5,cl. 39). Similarly, any structure, building, device, machinery, equip­ment or other property specifically constructed for the purpose ofeliminating industrial waste or reducing its level of toxicity so thatit is not a pollutant is also exempted' from real estate taxation(G.L. c. 59, s. 5, cl. 43).

Insofar as the latter category is concerned, through the yearsboth the Department of Natural Resources, the StaJe Departmentof Public Health and local and regional boards of health have beengranted broad powers with respect to the preservation of naturalresources and the elimination of nuisances, such as water, noiseand air pollution.

Since 1937 the establishment of water supplies or sewage dis­posal facilities has required Department of Public Health approval

(G.L.for thalgae I

Departa safepollutisites p111, s.

Indlsite aptions (I

BoHauthoripolluti<respect

Subsstate'swetlan(and kfControlcontrol

Finalvided frized al

of the {

The NG

In rCOnseq1The fit

the sueperil 01oration

[Apr. 1971 ] HOUSE - No. 5301 23

he first>rovided~ state'sNas em­'ing andbe paid

contains ,land forroval by

11ems has1 in two;try and:nts anduse and

:onstruc-

:cility orrpose of)een ex­59, s. 5,V, equip­.rpose ofI so thattaxation

h.e years ~iJartmentave beenf naturaler, noise

wage dis­approval

(G.L. c. Ill, s. 17). A license from the Department is necessaryfor the use of chemicals in controlling aquatic nuisances, such asalgae or weeds (G.L. c. Ill, s. 5E). Other statutes empower theDepartment to establish rules and regulations to insure delivery ofa safe water supply to consumers (G.L. c. Ill, s. 5G), to preventpollution of these supplies (G.L. c. 111, s. 160), and to approvesites proposed for dumps and/or sewage disposal facilities (G.L. c.111, s. 150A).

Industries that emit noxious odors or are noisome must obtainsite approval from local boards of health prior to beginning opera­tions (G.L. c. Ill, s. 143).

Both state, local and regional health agencies have been grantedauthority to undertake programs to protect the public from airpollution (G.t. c. Ill, s. 2B) and make rules and regulations withrespect to atmospheric pollution (G.L. c. Ill, s. 31C).

Substantial bond issues designed to clear pollution from thestate's waterways have been approved; both coastal and inlandwetlands acts were adopted to provide the machinery to preserveand keep clean marshes and lowlands; and a Water PollutionControl Commission has been established to assist in pollutioncontrol and abatement.

Finally, among other enactments, the General Court has pro­vided for the control of herbicides and pesticides and has autho­rized an action in tort for damages due to oil spills on the watersof the commonwealth.

Chapter II

ENVIRONMENTAL POLLUTION ANDTHE ROLE OF GOVERNMENT

The Nature of the Problem

In recent years society has become more conscious of theconsequences of the increasing degradation of man's environment.The media have publicized the imminent shortage of potable water,the sudden accretion of toxic wastes in the air, the ever-increasingperil of mercury poisoning of sea life, the increasingly rapid deteri­oration of'the inner city, the psychological and physiological harm

24 HOUSE - No. 5301 [Apr. 1971 )

from constant noise assault and population density, the growingstockpile of deadly radioactive wastes, the pollutipn of soil withpesticides and herbicides, and the peril of thermal imbalance.Awakened scientific communities also have warned society of theimpending dangers. and many interested scientists have begun tostudy and document the maleffects of technology on the environ­ment. These public developments which have filtered down intothe understanding of the average citizen have delineated clearly thenature and scope of the problems of environmental pollution, as anational - and indeed - even an international or transnationalproblem.

Any attempt to rectify existing environmental abuses and toachieve and maintain environmental quality for present and futuregenerations must, of necessity be at least national in scope. Forthis reason, the following sections of this chapter provide a briefoverview of federal law and programs con~erned with the environ­ment. While the movement and activity of state and local govern­ments in addressing themselves to the problem of environmentaldegradation must conform with federal programs, it is important tonote that Congress has already declared its belief that the primaryresponsibility for achieving and maintaining environmental qualityrests with them. The role of federal, state and local governments inabating environmental pollution, therefore, clearly is one whichmust be developed and implemented upon a coordinated basis. Nostate nor local government can sit back and await federal resolu­tion and solution of the problem.

The National Environmental Policy Act of 1969

On January 1, 1970, the National Environmental Policy Act of1969 (NEPA) became effective.1 This statute is the most im­portant administrative enactment ever passed by Congress in thearea of environmental protection. It contains a Congressional decla­ration of a national environmental policy and imposes both sub­stantive and procedural duties upon all federal officials andagencies to implement its policy. In summary, the stated purposesof the act are:

1 P.L. 91~190, 42 V.S.C.A., s. 4321 et seq. (hereinafter referred to as NEPA).

p:elelstUl

scCc

Furteach ppersonenhancthis seAct 2,zen ...federalmentalto havfthe eco

Arethe emindicatla syntlrespect]sion pIfundamthat ea,tion anbe carr:shouldmanagethe parthe orl'I

1 NEPA,:2 P.L.89­3 V. Yanl

831 (194 Congres:

[Apr. 1971 ] HOUSE - No. 5301 25

!:.J •

;y Act ofmost im- •~ss in the ,mal decla­both sub­lcials and1 purposes

; and told futureope. Fore a briefenviron­

I govern­:mmentalortant to~ primary !

11 qualityIments inne whichbasis. Noal resolu-

growingoil withbalance.r of thelegun toenviron­wn into~arly theion, as a>national

,

To declare a national policy which will encourageproductive and enjoyable harmony between man and hisenvironment; to promote efforts which will prevent oreliminate damage to the environment and biosphere andstimulate the health and welfare of man; to enrich theunderstanding of the ecological systems and natural re­sources important to the Nation; and to establish aCouncil on Environmental Quality. 1

Furthermore, the law declares that "Congress recognizes thateach person should enjoy a healthful environment and that eachperson has a responsibility to contribute to the preservation andenhancement of the environment." (s. 10I(c». With reference tothis section and the provisions of the Administrative ProcedureAct,2 one commentator has suggested that "a private citi­zen ... should have standing to challenge actions and decisions offederal agencies allegedly in violation of the National Environ­mental Policy Act of 1969, where the action or decision threatensto have adverse effects on ,the ecosystem in which he resides or inthe ecosystem that he uses for recreation.'" 3

A review of the legislative developments which finally resulted inthe enactment of the provision appearing as section 101 (c) wouldindicate that such an observation may be challenged. NEPA itself isa synthesis of two bills introduced into the Senate and Houserespectively (S. 1075 and H.R. 6750). Originally, the Senate ver­sion provided "[ t] he Congress recognizes that each person has afundamental and inalienable right to a healthful environment andthat each person has a responsibility to contribute to the preserva­tion and enhancement of the environment." This language shouldbe compared with the present version which reads: "each personshould enjoy a healthful environment." According to the Housemanagers of the Bill, the change was made "because of doubt onthe part of the House conferees with respect to the legal scope ofthe original Senate provision.,,4 Apparently, they feared that S.

1 NEPA,s.2.2 P.L. 89-554, 80 Stat. 392 (1966).3 V. Yannacone, Jr., National Environmental Policy Act, 1 Environmental Law Review

831 (1970).4 Congressional Report No. 765, 91st Congress, 1st Session 8 (1969).

26 HOUSE - No. 5301 [Apr. 1971]

1075 might result in the issuance of injunctions against federalagency action which in any manner violated a citizen's "funda­mental and inalienable right to a healthful environment."

Moreover, in regard to the words '''fundamental and inalienableright", language of this type generally is used to describe constitu­tional rights individually enjoyed by all citizens. It is unclearwhether the Senate Bill employed the term in this sense. But, ifthis is what S. 1075 intended, the question arises whether Congresscan articulate constitutional rights by legislative pronouncement.While it is generally assumed that the Courts alone are competentto declare what the Constitution means, Congress is nonetheless aproper body for constitutional interpretation and its. standing inthis regard is not affected by the assumed power of the SupremeCourt to possess finality in declaring constitutional interpretations.

Substantive Duties. The most important provision of the Act,and the one most debated in Congress, appears in section 102(1)which containes the following statement:

The Congress authorizes and directs that, to the fullestextent possible: (1) the policies, regulations, and publiclaws of the United States shall be interpreted and ad­ministered in accordance with the policies set forth inthis chapter.

The significance and impact of this prOVISIon depends upon theinterpretation accorded the clause, "to the fullest extent possible,"which modifies all section 102 duties. It seems clear both from thelanguage of the Act and its legislative history that the modifying'clause was intended to make the duties mandatory, not discre­tionary.I The legislative history insofar as it relates to the purposeof the modifying phrase has been summarized in the ConferenceReport on the substitute bill which was enacted:

The conference substitute provides that the phrase "tothe fullest extent" possible [in section 102] applies withrespect to those actions which Congress authorizes anddirects to be done under both clauses (l) and (2) ofsection 102 (in the Senate Bill, the phrase applied only

1

It seemthe phrast:that agen(

I See Peterson, Title I of the National Environmental Policy Act of1969, I EnvironmentalLaw Review 35 (1970).

. I CongressiOJ

[Apr. 1971) HOUSE - No. 5301 27

federal"funda-

llienable;onstitu-unclear

. But, if:ongress ,lcement.mpetenttheless a!1ding inSupremeetations.the Act,n 102(1)

lestblic I,

ad-llfi

Ipon thelossible ,"from thelOdifying>t discre-: purposemference

~"to

withand) ofonly

lvironmental "",

to the directive in clause (l ». In accepting this change tosection 102 (and also to the provisions of section 103),the House conferees agreed to delete section 9 of theHouse amendment from the conference substitute. Sec­tion 9 of the House amendment provided that "nothingin this Act shall increase, decrease or change any respon­sibility or authority of any Federal official or agencycreated by other provision of law." In receding from thisHouse provision in favor of the less restrictive provision"to the fullest extent possible," the House conferees areof the view that the new language does not in any waylimit the congressional authorization and directive to allagencies of the Federal Government set out in subpara­graphs (A) through (H) of clause (2) of section 102[discussed in the following subsection]. The purpose ofthe new language is to make it clear that each agency ofthe Federal Government shall comply with the directivesset out in such subparagraphs (A) through (H) unless theexisting law .applicable to such agency's operations ex­pressly prohibits or makes full compliance with one ofthe directives impossible. If such is found to be the case,then compliance with the particul~r directive is not im­mediately required. However, as to other activities ofthat agency, compliance is required. Thus, it is the intentof the conferees that the provision "to the fullest extentpossible" shall not be used by any Federal agency as ameans of avoiding compliance with the directives set outin section 102. Rather, the language in section 102 isintended to assure that all agencies of the FederalGovernment shall comply with the directives set out insaid section "to the fullest extent possible" under theirstatutory authorizations and that no agency shall utilizean excessively narrow construction of its existing statu­tory authorizations to avoid compliance.1

It seems clear throughout the legislative history of the Act thatthe phrase "to the fullest extent possible" was inserted to requirethat agencies, implement the national environmental policy unless

1 Congressional Report No 765, 918t Congress, Ist Session 9-10 (1969).

28 HOUSE - No. 5301 [Apr. 1971J

precluded by statute for doing so.l Thus, if implementation ofNEPA policy is possible, the agency must comply with the section102 duty. Where full implementation of the policy is impossiblebecause part is precluded by statute1 the agency is excused fromfull implementation. However, it still has the responsibility tocomply insofar as possible.2

It is only when an agency determines that it is precluded by thestatute governing its jurisdiction and activities from implementingthe national environmental policy, in whole or in part, that it isexcused from complying with the section 102 duties. In this event,however, section 103 requires the agency to "propose to thePresident, not later than July 1, 1971, such measures as may benecessary to bring [its] authority and policy into conformity withthe intent, purposes and procedures set forth in this Act."

The duties imposed by section 102 apply to a broad range ofagencies and agency action. All federal officials and agencies, in­cluding quasi-judicial, independent regulatory commissions, withthe exception of environmental protection agencies, must comply.Thus, all decisions and actions which have environmental impact,including those relating to loans, grants, contracts, leases, licenses,or permits, must comply with the national environmental policyexcept to the extent compliance is precluded by statute.3

One of the major purposes and ~ccomplishments of NEPA, asSenator Henry Jackson has pointed out, is that it "provides astatutory foundation to which administrators may refer ... forguidance in making decisions which find environmental values inconflict with other values." Federal officials must thoroughlyanalyze the impact of all proposed actions on the environment.Thus, two decisions must be made. It must initially be determinedwhether the proposed action will have any significant environ­mental impact and, subsequently, whether there exists any conflict

1 115 Congressional Record H. 12635 (daily ed. Dec. 17, 1969) (Statement of the Man­agers on the part of the House); 115 Congressional Record S. 17453 (daily ed. Dec. 20,1969) (Major Changes in S. 1075 as passed by the Senate); The Council on Environ­mental Quality has adopted this interpretation inits "Interim Guidelines," 35 FederalRegister 7390-91 (May 12, 1970).

2 115 Congressional Record H. 12635 (daily ed. Dec. 17, 1969) (Statement of the Man­agers on the Part of the House); 115 Congressional Record S. 17453 (daily ed. Dec. 20,1969); (Major Changes in S. 1075 as passed by the Senate).

3 See Executive Order, No. 11514,35 Federal Register 4247. (1970).

withregard102(2becorr

Pro I

Gover"to irIegislathe qlcertairdetaiIEconsulagenc)respecstatemavailalthe pu

Acetailed

0:(ij

(v

Othgovernquirescountiinformqualit)

Ane102(2:obliga'to ree

[Apr. 1971 ] HOUSE - No. 5301 29

tion ofsection

possible~d fromility to

l by thementing ,lat it islS event,

to themay beity with

range ofldes, in-1S, withcomply.impact,licenses, '~

"

II policy

rEPA, asovides a~r ... for~alues in~roughly

·onment.terminedenviron-

~, conflict

of the Man-ed. Dec. 20,on Environ-, 3S Federal

of the Man-ed. Dec. 20,

\.~~

with or between environmental values and other values. In thisregard, the procedural "action-forcing" requirements of section102(2), especially the provisions of subparagraphs (C) and (D)become most important.

Procedural Duties. Briefly stated, all agencies of the FederalGovernment are required by section 102(2), among other things,"to include in every recommendation or report on proposals forlegislation and other major Federal actions significantly effectingthe quality of the human environment, a detailed statement" oncertain specified environmental considerations. Prior to making thedetailed statement, the responsible federal official is required toconsult and obtain the comments of any federal, state and localagency which has jurisdiction by law or special expertise withrespect to any environmental impact involved. Copies of suchstatement and related views of the pertinent officials shall be madeavailable to the President, the Council on Environment Quality andthe public.

According to section 102(2)(C), this report must include de­tailed consideration of each of the following factors:

(i) the environmental impact of the proposed action;(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented;(iii) alternatives to the proposed action;(iv) the relationship oetween local short-term uses of man's

environment and the maintenance and enhancement oflong-term productivity; and

(v) any irreversible and irretrievable commitments of resourceswhich would be involved in the proposed action should itbe implemented.

Other procedural "action-forcing" provisions encourage inter­governmental cooperation and section I02(2)(F) specifically re­quires that the federal government "make available to states,counties, municipalities, institutions, and individuals, advice andinformation useful in restoring, maintaining and· enhancing thequality of the environment."

Another important provision of the Act is contained in sectionI02(2)(D) which imposes upon all federal agencies and officials theobligation to "study, develop and describe appropriate alternativesto recommend courses of action in any proposal which involves

30 HOUSE - No. 5301 [Apr.1971 ]

unresolved conflicts concerning alternative uses of available re­sources." This provision and that of subparagraph (C)(iii) becomeparticularly important where adverse environmental effects willresult from proposed action. They also have important applicationwhenever it is possible to restore environmental quality previouslylost.

The language of subparagraph (D) suggests that the considerationof alternatives must be as thorough as the consideration of environ­mental impact. If an alternative is found, which does not threatenthe adverse environmental effects which predictably will flow froma proposed action, the substantive duty imposed upon federalofficials to implement NEPA policies requires that the alternativebe adopted instead of the original proposal. Only in this way canfederal officials attain the Act's goals and discharge their duty torestore and maintain environmental quality. Where a proposalwhich will adversely affect the environment has no alternativecompatible with the national environmental policy, the legislativehistory indicates that federal officials and agencies have the re­sponsibility to reassess the justification for the proposed action.Particularly pertinent on this point is Senator Jackson's statementthat environmentally destructive activity be only infrequently per­mitted:

The basic principle of the policy is that we must strive inall that we do, to achieve a standard of excellence inman's relationships to his physical surroundings. If thereare to be departures from this standard of excellence,they should be exceptions to the rule and the policy.And as exceptions, they will have to be justified in thelight of public scrutiny as required by section 102.1

Prior to the passage of NEPA, planning and decision making ofthe federal government and private industry was all too frequently"the exclusive province of the engineer and cost analyst.,,2 Thesesources often ignored environmental factors because of the diffi­culty in evaluating them in comparison with the economic and

1 115 Congressional Record S. 17451 (daily ed., Dec. 20, 1969); see also 115 Congres­sional Record S. 7815 (daily ed. July 10,1969) (remarks of Sen. Jackson).

2 Senate Report No. 296, 91st Congress. 1st Session 20 (1969).

technifederaand ttof em

Theimpleland trbecorralized,resourmightissuedpipelirnecess:effectia1read~

The £1

Anathe en1970,of thisand agaffectunderQualit)for thNation;

Thetance (tain ersional (ing thi~

languagpolitica

1 E.g.,z,2 P.L. 91

[Apr. 1971 ] HOUSE - No. 5301 31

,.....1

1

il

e.,,r

e

:ing of -uentlyThese

~ diffi-ic and

e te­come

willationously

'ationviron­'eatenfrom~deral

lativeyeantty to>posaltlative;lativele re­ction.~ment

y per-

Congres-

"

\

(

technical factors motivating their conduct. NEPA now requires thatfederal agencies and officials strive to develop the methodologyand techniques necessary for detennining the value and importanceof environmental factors.

The provisions analyzed above, if enthusiastically accepted andimplemented by federal officials, could have far-reaching nationaland transnational consequences. Not only could conservation v.aIuesbecome accepted for their own merit but the history of industri­alized, developed societies in depleting the irreplaceable nationalresources of their own and other countries at an alanning ratemight be reversed. Unfortunately, as the recent interim reportissued by the Department of Interior in the trans-Alaskan Oilpipeline controversy indicates, this result does not appear to benecessarily emerging. NEPA, however, has not been entirely in­effective as is demonstrated by the judicial interpretation it hasalready received. 1

The Environmental Quality Improvement Act of 1970

Another important federal administrative statute concerned withthe environment is the Environmental Quality Improvement Act of1970, which was signed into law on April 3, 1970.2 The purposesof this Act are twofold: (1) to assure that each federal departmentand agency conducting or supporting public works activities whichaffect the environment shall implement the policies establishedunder existing law; and (2) to establish an Office of EnvironmentalQuality which shall provide professional and administrative stafffor the Council on Environmental Quality established by theNational Environmental Policy Act.

The Act serves dramatically to underscore the critical impor­tance of state and local activity in the fight to restore and main­tain environmental quality. ~ection 202(c) contains the congres­sional declaration that "[t] he primary responsibilityfor implement­ing this policy rests with State and local governments." By its ownlanguage the statute recognizes the futility of non-action by thesepolitical institutions while hopefully awaiting federal restoration of

1 E.g., Zabel 119. Tabb, 296 Fed. Supp. 764.2 P.L. 91-224,42 U.S.C.A., s. 4371 et seq.

32 HOUSE - No. 5301 [Apr. 1971]

environmental quality. In the final analysis, Congress has properlydecreed that state and local governments must act.

Reorganization of Federal Agencies

Since the present administration took control of the reins ofgovernment on January 20, 1969, it has considerably reorganizedthe federal bureaucracy with respect to environmental pollution.The first organizational step taken by the President was the estab­lishment by Executive Order, No. 11472 on May 29, 1969, of thenow defunct Cabinet Committee on the Environment.! TheCabinet Committee was chaired by the President and consisted ofthe Secretaries of the Departments of Agriculture, Commerce,Health, Education and Welfare (HEW), Housing and Urban Devel­opment (HOO) , Interior and Transportation. Its functions were topromote the preservation of the environment, to be aware of the

- effects of federal programs on the environment, and to coordinategovernmental programs which affected the environment.

At best, the Cabinet Committee on the Environment was astop-gap measure which did not produce much, if any, results. Theinability of the Cabinet Committee in achieving or enhancingenvironmental quality was predictable. Cabinet Committees oftenprove ineffective for several reasons. This is significantly due to thefact that the Secretaries' time is already overtaxed with the burdenof administering his own Department and also because the Secre­taries usually hesitate to criticize the work of the other Depart­ments. More importantly, however, the Cabinet Committee on theEnvironment was not an adequate method by which to resolve theconflicts of interest existing within the individual governmentaldepartments. For example, the Department of Agriculture hastraditionally been responsible for the contradictory chores ofpromoting agriculture on the one hand and of controlling pesti­cides and herbicides on the other: Similarly, the Atomic Energy ,Commission (AEC) was charged with the conflicting duties ofpromoting the peaceful uses of nuclear power and, at the sametime, of protecting the environment against the hazards of radio­active pollution. The Cabinet Committee could not cope with

1 34 Federal Register 8693 (1969) as amended by Executive Order, No. 11514, 35 FederalRegister 4247 (1970).

problembeen oninsure (organizathe enviadequacion the E

The fin the c1969 (JIfederal ~

to bringwith thewithin tVlfonmetthe restaffairs. 1the COUlthat it w

The e:in the Sl

Act of ]ity, alsoof EnvitEnvironnprovidedCouncil.

TheseEnvironnCommitton Julyenvironrnmore effca separatin a bettvarious d

1 3S Feden

[Apr. 1971] HOUSE - No. 5301 33

lU •

t was adts. The

~~a:~:~ r.e to the~ burden,e Secre-Depart­

e on the;olve thenmentalture has

~~re;es: ~: Energyluties of i

he sameof radio­lpe with

i, 35 Federal l

r

roperly

~eins of'ganized>l1ution.e estab­. of the::1 Theisted ofnmerce,1 Devel­were to~ of theordinate

r problems of this genre. The history of intra-eabinet disputes hilSbeen one of jealous guarding of jurisdiction and responsibility toinsure continued political importance and expansion. A frrmerorganizational commitment to the preservation and renovation ofthe environment was necessary to rectify these conflicts and in­adequacies created within the structure of the Cabinet Committeeon the Environment.

The first major commitment of this kind was made by Congressin the enactment of the National Environmental Policy Act of1969 (NEPA). As previously noted, the Act requires that allfederal agencies notify the President of measures deemed necessaryto bring their jurisdiction and program operations into conformitywith the stated policies of the Act. In addition, NEPA establishedwithin the Executive Office of the President, the Council of En­vironmental Quality, a full-time three-member group charged withthe responsibility of advising the President on environmentalaffairs. The Council of Environmental Quality is similar in form tothe Council of Economic Advisors, and it was hopefully expectedthat it would achieve similar importance.

The effectiveness of the Council was enhanced by the provisionin the subsequently enacted Environmental Quality ImprovementAct of 1970 which established the Office of Environmental Qual­ity, also within the Executive Office of the President. The Officeof Environmental Quality is the extension of the Council onEnvironmental Quality (the same person heads both bodies) andprovided professional and administrative staff in support of theCouncil.

These two innovations, the Council on, and the Office of,Environmental Quality made the executively established CabinetCommittee on the Environment superfluous, and it was terminatedon July 1, 1970 by Executive Order, No. 11514.1 The newenvironmental agencies - the Council and its Office - should bemore effective than the old Cabinet committee because its status asa separate entity with full-time operations and personnel places itin a better position to criticize the activities and programs of thevarious departments of the Government.

1 3S Federal Register 4247 (l970).

-------------------------------------------------

34 HOUSE - No. 5301 [Apr. 1971]

What remained to be done subsequent to the Congressionalaction in order to implement the declared national policies ofNEPA was a restructuring of the numerous federal agencies, depart­ments and bureaus to parallel their Organization with that of thesingle entity responsible for the environmental affairs. This re­arrangement was achieved by the President in Reorganization PlansNo. 3 1 and No. 4 2 which were issued on July 9, 1970 and becameeffective in September 1970.

Reorganization Plan No. 3 created a "super-agency" known asthe Environmental Protection Agency (EPA). Many scatteredbureaus and administrations were transferred from the Departmentsof the Interior, HEW, Agriculture and elsewhere to the newlycreated EPA. This restructuring eliminated many of the old interestconflicts. Reorganization Plan No. 3 does not define the relation­ship of the Executive Office with the EPA and the Council onEnvironmental Quality. The Council and the EPA are, however,separate and the Administrator of the EPA is directly responsibleonly to the President. Moreover, the EPA is of such importancethat it was established as an independent body rather than as adepartment in an existing agency and has been given authority overfederal environmental programs. The Council on the other handserves mainly as a source of advice to the President rather thanexercising power over federal agencies whose programs affect theenvironment.

Reorganization Plan No. 4 established the National Oceano­graphic -and Atmospheric Administration (NOAA) within theDepartment of Commerce. This agency is a consolidation of vari­ous activities previously handled by many bureaus of severaldepartments on a non-coordinated basis.

The difference between the two newly-ereated bodies is that the I'EPA is geared to respond quickly to the common environmental!threats (inland water pollution, radiation hazards, air pollution,::etc.) while the NOAA is responsible for long-range planning fot:preservation of the ocean and the atmosphere.

1 71 Environmental Reporter 0211 (Fed. Laws 1970).'2 Ibid 0221.

;~

RelatiomControl.J

The eftion conas the Acontrols.Act,2 en<

Air PopollutionAir Act: 3

(1healtltion;

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The netion wasprocedurebasis. ThLhas desigIthese regilquality stplementat

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1 42 U.S.C.,2 33 U.S.C.,3 77 Stat. 39

• 4 77 Stat. 395 42 U.S.C.,

[Apr. 1971] HOUSE - No. 5301 35

l Oceano­'ithin theIII of van­:Jf several

is that the ~

ronmental ,pollution,mning for

~essional

Jlicies ofs, depart­at of theThis re­

jon Plansd became

cnown asscatteredJartmentsh.e newlyd interest

relation­Jundl onhowever,~sponsible

flportancethan as aority overther handlther thanaffect the

Relationship Between Federal and State Government in PollutionControl Programs.

The effect of federal pollution control legislation on state pollu­tion control programs is twofold. Certain federal legislation, suchas the Air Quality Act of 1967,1 expressly forbids state enactedcontrols. Other legislation, such as the Clean Water RestorationAct,2 encourages state action.

a Air Pollution. Federal legislation concerning the problem of air, pollution is quite extensive. In 1963, Congress enacted the Clean

Air Act: 3

(1) To protect the Nation's air so as to promote the publichealth and welfare and the productive capacity of its popula­tion;

(2) to initiate and accelerate a national research and devel­opment program to achieve the prevention and control of airpollution;

(3) to provide technical and financial assistance to state andlocal governments in connection with the development andexecution of their air pollution prevention and control pro­grams; and

(4) to encourage and assist the development and operationof regional air pollution control programs. 4

The next major piece of federal legislation relative to air pollu-tion was the Air Quality Act of 1967. 5 This statute establishes aprocedure for dealing with air pollution problems on a regionalbasis. Thus after the Department of Health, Education and Welfarehas designated air quality regions and set air quality criteria forthese regions, state governments are then expected to establish airquality standards and to adopt comprehensive plans for their im­plementation.

The Department designates air quality control regions on thebasis of meteorological and topographical factors, urban-industrialconcentrations, jurisdictional boundaries, and other relevant fac­tors. These regions must be established by the Secretary of HEWnot later than 18 months after the date of enactment.

1 42 U.S.C., s. 1857a-l (Supp. 1967).2 33 U.S.C., s. 466a-n (Supp. 1966).3 77 Stat. 392 (1963).4 77 Stat. 392. s. lb.5 42 U.S.C., s. 1857a-l (Supp. 1967).

36 HOUSE - No. 5301 [Apr. 1971 ]

The Department is 'responsible for developing and issuing qualitycriteria which summarize available information on the relationshipbetween exposures to air pollutants and their effects on man andhis environment. For those types of air pollutants for which airquality criteria are issued, the Department must also develop andissue reports and control techniques. These reports provide in­formation on the availability and applicability of techniques forthe prevention and control of air pollutants at their sources and onthe cost and effectiveness of such techniques.

After this federal action is completed, state governments, afterpublic hearings, set standards and devise plans for their imple­mentation in conformity with the following schedule:

(1) No later than 90 days after the issuance of air qualitycriteria and a report on control techniques for a given type ofair pollutant, the Governor of any state in which an air qualitycontrol region has been designated must notify the Secretary inwriting of the state's intent to adopt air quality standardsapplicable to that pollutant in that air quality control region.

(2) No later than 180 days after the end of the above90-day period, the state must adopt such air quality standards,after holding public hearings, and must submit the standards tothe Department for review.

(3) No later than 180 days after the end of the above180-day period, the state must adopt a plan for the imple­mentation of the air quality standards and must submit theplan to the Department for review.

In those cases where air quality criteria and reports on controltechniques have already been issued at the time an air qualitycontrol region is designated, the above timetable begins with thedate of official designation of the air quality control region.

The Air Quality Act authorizes HEW to take steps to insureadoption of appropriate air quality standards· in the event that astate fails to establish such standards for an air quality controlregion or if the standards established by a state cannot be ap­proved. l

1 42 U.S.C., s. 18S7c (2) (3) (4).

WaJanes.Thus,the pI

Un<Act 1,endanorigin:federadefineformrefere]poIlut:underwatersentire]

Hmpollut:neithefederaover VI

waterin sect

CanCI

ei

Thuc1udinJthe FWaterexpres:marypolluti

1 70 St2 33 U.

[Apr. 1971] HOUSE - No. 5301 37

qualityionshipan anddch airop andide in-ues forand on

-s, afterimple-

qualitytype ofquality~tary inandardsregion.

: abovelIldards,lards to

~ aboveimple-

mit the

controlquality

lith the

) insure~t that a

control I

be ap-

Water Pollution. Water ·as air does not respect political bound­aries. If impure, it may endanger health conditions in several states.Thus, effecve federal and state controls are necessary to remedythe problem of water pollution.

Under section 8(c)( 1) of the Federal Water Pollution ControlAct,1 the pollution of "interstate or navigabl~ waters" whichendanger the health or welfare in the state in which the dischargeoriginates (intrastate pollution) is made subject to abatement underfederal enforcement authority. The term "interstate waters" isdefined as "all rivers, lakes and other waters that flow across orform a part of state boundaries, including coastal waters." Thereference to "interstate or navigable waters" may include thepollution of interstate waters regardless of their navigability, andunder section 8(c)( 1) would extend federal jurisdiction to suchwaters even if they were not navigable and the pollution wasentirely intrastate.

However, the fact that the federal government has control overpollution of certain waters does not preclude state action. Sinceneither the Federal Water Pollution Control Act nor any otherfederal act contains a clause preempting state pollution controlover waters, the states, under their police power, can act to controlwater pollution. In fact, the Federal Water Pollution Control Actin section lO(a) states:

Consistent with the policy declaration of this Act, Stateand interstate action to abate pollution of interstate ornavigable waters shall be encouraged and shall not, ex­cept as otherwise provided ... be replaced by Federalenforcement action.

Thus, the policy of the federal government is not one of pre­cluding state action in the water pollution control area. In 1965,the Federal Water Pollution Control Act was amended by theWater Quality Act of 1965. 2 The purpose of this amendmentexpressed in section 466(b) is to "preserve, and protect the pri­mary responsibilities and rights of the States in preventing waterpollution."

1 70 Stat. 507 (1956),33 U.S.C., s. 466 et seq. (as amended, 1964 and 1965).2 33 U.S.C., s. 466.

The act contains provisions which allow for technical researchand financial aid to state agencies and municipalities in connectionwith the prevention and control of water pollution.

In 1966 further amendments were made in the Clean WaterRestoration Act of 1966. This amendment expanded the grantsavailable to states for the control of water pollution. In particular,it authorized grants for construction of sewerage treatment works.

The Preemption Problem. The statutes examined above are char­acterized by federal and state cooperation in combating the prob­lems of air and water pollution. However, not all federal legislationencourages or even permits state action. One example of theconverse situation establishing preempted areas of activity is foundin the Air Quality Act:

No state or any political subdivision thereof shall adoptor attempt to enforce any standards relating to thecontrol of emissions from new motor vehicles or newmotor vehicle engines subject to this subchapter. Nostate shall require certification, inspection, or any otherapproval relating to the control of emissions from anynew motor vehicle or new motor vehicle engine, as con­dition precedent to the vital sale, titling (if any), orregistration of such motor vehicle .... 1

Noise Pollution. While the federal government has refrainedfrom passing detailed legislation, states or cities do not have anunencumbered right to regulate noise pollution.

In Hempstead vs. American Airlines, Inc., the Second CircuitCourt ruled that a city noise ordinance which in effect regulatesthe flight paths of planes flying from Kennedy AIrport was notenforceable.2 The court held that under federal law the FederalAviation Agency has control over such flight patterns. Thus, sincecompliance with the noise ordinance would require alterations inthe established flight patterns, the ordinance was held not enforce­able.

197]

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[Apr.HOUSE - No. 530138

1 42 U.S.C., s. 1857f-6a.2 398 F. 2d. 369 (2d Cir. 1968).

1 Cal2 Rej

3 Ma

[Apr.1971] HOUSE - No. 5301 39

earch:ction

Water~rants

cular,rorks.

char­prob­ationf the'ound

ainedIe an

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since,ns mforce-

,

rII

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. It is important t6 note that the Hempstead decision is limited toits facts. Because there was an obvious conflict between the ordi­nance and the federal regulation the court did not consider thequestion of federal preemption.

The lack of clarity regarding the rights of states and cities inenacting noise control legislation did not prevent California fromadopting the nation's first state aircraft noise abatement law.! Thelaw provides for a maximum fine of $1,000 for each aircraftoperation in excess of the permitted noise level.

Prior to enactment of this law, the office of the AttorneyGeneral of the State of California2 concluded that: (1) the federalgovernment has occupied a portion but has not preempted theentire field of regulatory noise from aircraft; and (2) state andlocal governments may legislate in the field if they do not conflictwith federal statutes or regulations.

The Attorney General of the Commonwealth of Massachusettsand the City of Boston recently sued the Massachusetts PortAuthority and the airlines using Logan Airport in an effort toabate airport noise and to recover damages for sound-proofingschools in the areas affected by the operation of the airport. Thecity's suit against the defendant Massport has recently been dis­missed on the ground that Massport is a state agency not amen-:­able to this type of suit.

Local Government

Prior to the adoption of the 1966 Home Rule Amendment tothe Constitution the regulation of the affairs of the cities andtowns of the Commonwealth was vested primarily in the GeneralCourt.3 Upon the adoption of the Home Rule Amendment, thebasic right of municipalities to self-government was established.

Section 6 of this Amendment grants to municipalities the au­thority to exercise any "power or function which the GeneralCourt has the power to confer upon it," provided that power isnot inconsistent with the Constitution or General Laws. However,

1 Cal. Public Utilities Code, s. 21669 et seq.2 Report of the Attorney General, No. 216 (Feb. 27, 1970).3 Mass. Constit., Art. Amend. LXXXIX.

40 HOUSE ~ No. 5301 [Apr. 1971 ]

several limitations are imposed upon the broad grant of home rulepower: (1) the power of self-government relates only to "localmatters" which is left undefined; (2) the municipality's actionsmust be consistent with the Constitution and General Laws, andthe city or town charter; and (3) the General Court retains theright to act in relation to the cities and towns, subject to certainqualifications. So long as municipalities comply with the fITst twolimitations antipollution ordinances and activities are for thepresent permitted.

An example of the latitude of authority permitted municipalitiesis the recent decision of the Supreme Judicial Court in Golden vs.Board of Selectmen of Falmouth. 1 The Court held that GeneralLaws, c. 130, s. 27A does not deprive a municipality, acting undera local zoning by-law, of the power to forbid the filling, dredging,or excavating of coastal wetlands, despite the prior approval of theDirector of Marine Fisheries granted under the statute. In reversingthe decree of the Superior Court annulling the town's decision andordering it to issue a permit subject to the conditions imposed bythe Director, the Supreme Judicial Court held that the state coastalwetland statute did not expressly nor impliedly preempt localregulatory controls. It also found no repugnance between the localby-law and the state statute and noted that each conferred "aseparate and distinct type of authority upon the respective govern­mental bodies involved":

It is apparent to us that the Legislature in enacting theAct did not attempt to cover the entire field of coastalwetlands regulation to the exclusion of regulation bylocal authority. The Act does not attempt to create auniform statutory scheme. It establishes minimum state­wide standards leaving local communities free to adoptmore stringent controls.

1 1970 Mass. Adv. Sh.1685, 265 A.2d 711.

Introc.

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tion ,Floridvision:appan

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[Apr. 1971 ] HOUSE - No. 5301 41

ne rule"local

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palities'den vs.:;eneral~ under'edging,of the

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Chapter III

CONSTITUTIONAL AND LEGISLATIVE POllCYOF OTHER SELECTED STATES

Introduction

The past few years have been characterized by an increasingawareness of ecological problems and a movement towards environ­mental reform. During this period there has been substantial activi­ty at the state level in constitutional and legislative developmentsrelative to the environment. Some of these are summarized andexamined in the succeeding sections of this chapter. Specific ex­amples have been chosen because of their novel or interestingapproach to the role of state government or because of theirrelation to the language of the proposed amendment to the Mas­sachusetts Constitution.

The recent constitutional enactments of particular interest inlight of the proposed amendment to the Massachusetts Constitu­tion are those of the states of New York, Michigan, Illinois andFlorida. The similarity between the language of these several pro­visions and the proposed Massachusetts amendment is at onceapparent.

New York Constitutional Amendment

In 1967, the voters of New York rejected a new constitutionwhich had .been drafted by a popular constitutional convention.Among other provisions, that document contained clauses relativeto the preservation of the natural environment.

The environmental protection provisions of the proposed consti­tution, however, were later resurrected and as the result of favor­able action by two successive state legislatures and approval by theelectorate it became effective on January 1, 1970 (Art. XIV, s. 4).This amendment, which is unofficially entitled "The ConservationBill of Rights" proclaims:

The policy of the state shall be to preserve and pro­tect its natural resources and scenic beauty and en­courage the development and improvement of its agri­cultural lands for the production of food and other

42 HOUSE - No. 5301 [Apr. 1971]

agricultural products. The legislature, in implementingthis policy, shall include adequate provision for theabatement of air and water pollution and of excessiveand unnecessary noise, the protection of agriculturallands, wetlands and shorelines, and the development andregulation of water resources. The legislature shall furtherprovide for the acquisition of lands and waters, includingimprovements thereon and any interest therein, outsidethe forest preserve counties and the dedication of prop­erties so acquired or now owned, which because of theirnatural beauty, wilderness character, or geological, eco­logical or historical significance, shall be preserved andadministered for the use and enjoyment of all thepeople. Properties so dedicated shall constitute the state,nature and historical preserve and shall not be taken orotherwise disposed of except by law enacted by twosuccessive regular sessions of the legislature.

Michigan Amendment

The Michigan Constitution has contained a similar provisionsince 1963:

The conservation and development of the natural re­sources of the state are hereby declared to be of para­mount public concern in the interest of the health,safety and general welfare of the people. The legislatureshall provide for the protection of the air, water andother natural resources of the state from pollution, im­pairment and destruction (Constit., Art. IV, s. 52).

Illinois Constitution

The new constitution, which was proposed by a popular consti-j'tutional convention and ratified by the electorate on December 15,··1970, provides for protection of the environment (Art. XI). Inessence, the Article declares:

1. It is the public policy of the state and the -duty of each (.. person to provide and maintain a healthful environment for the!,!::benefit of this and future generations. J*

2. The General Assembly shall provide for the implementation:::. >

and enforcement of this public policy.

3. Ea4.Ea

mtJe<As

Florida

TheArticle

prl

prl

anno

Aspects

Fronprovisiccould vallow :r:with It

they mtain le~

adminisutes; (2sistent(3) enj4on thehoweve

Thedeclarethe sta1on thedelegat(provisicfollowenforcemandanobligati

------

[Apr. 1971] HOUSE - No. 5301 43

its constitution m 1968.

It shall be the policy of the state to conserve andprotect its natural resources and scenic beauty. Adequateprovisions shall be made by law for the abatement of airand water pollution and of excessive and unnecessarynoise.

3. Each person has the right to a healthful environment.4. Each person may enforce this right against any party, govern­

mental or private, through appropriate legal proceedings sub­ject to reasonable limitations and regulations by the GeneralAssembly.

Aspects of Selected Provisions

From the environmentalist's point of view, these constitutionalL provisions offer a strong base for environmental litigation. They

could well be interpreted by the courts of the respective states toallow private citizens participation in the decision-making processwith respect to events with environmental impact. Specifically,they might be interpreted to permit the ordinary citizen to main­tain legal action to: (1) compel sluggish or unwilling governmentadministrators to effectively enforce existing environmental stat­utes; (2) challenge any legislative or administrative decision incon­sistent with the policies expressed by the constitution; and(3) enjoin any private activity contrary to constitutional policieson the ground that it violates the public interest. These results,however, are by no means certain.

The New York and Michigan provisions appear, in effect, todec~are that the legislature shall safeguard the natural resources ofthe state. This language would seem to impose an affirmative dutyon the lawmakers, agencies, and officials to whom the state hasdelegated the responsibility for environmental protection. If theprovisions are interpreted as having this effect, it would logicallyfollow that any breach of this duty occasioned by the failure toenforce in good faith existing statutory standards will give rise to a

, mandamus action compelling appropriate officials to fulfill theirobligations to the people.

Florida Provision

~.'. The State of Florida also amended, Article 2, Section 7 now declares:f

entation

r consti- ,nber 15, !XI). In I

Iof each ,t for the

re­lra­lth,urelndim-

>rovlslon

:ingtheiivenallndherling;ideop­leir:co­lndthelte,

or:wo

44 HOUSE - No. 5301 [Apr. 197:

The Michigan provision seems to go further. Since, in Michigan,the "conservation and development of the natural resources of thestate" are "of paramount public concern," any legislative or admin­istrative action not conforming to this interest arguably could bedeclared a violation of the state constitution. Also, it could befurther argued that any activity contrary to the constitutionallyexpressed public interest constitutes a public nuisance whethercommitted by public or private parties.

Maine Environmental Improvement Commission

In order to effectively implement environmental programs, manystates, among them Maine, New York and Illinois, have createdenvironmental protection agencies. The powers of these agenciesvary greatly but all have been created. for the purpose of effec­tively restoring and preserving environmental quality. Because thearea of pollution control is one which requires a good deal ofinvestigation and expertise, the decision to delegate investigatoryand regulatory responsibility to specialized agencies recommendsitself as an effective approach. It is anticipated that the trend inthis direction will continue. The adoption of environmental pro­tection amendments to state constitutions helps to insure thevalidity of delegations of this kind and serves to remove specializedconstitutional problems which otherwise might exist.

In 1970, the Maine Legislature enacted the Water PollutionControl Law (R.S.A., Title 38, c. 3). Section 361 of this actsignificantly expands the authority of the Water and Air Environ­mental Improvement Commission which was initially created in1959 to oversee developments to protect water resources. Later in1967, it was vested with air environmental responsibilities. TheCommission consists of ten members appointed by the Governorwith the advice and consent of the Executive Council for a term ofthree years. The statute requires that Commission membersrepresent various interests as follows: two, the manufacturing in­terests; two, the municipalities; two, the public generally, and two,the conservation interests in the state. The remaining t~o membersof the Commission must simply be knowledgeable in matters re­lating to air pollution.

St

Somlthe ;lutioor II

of 0

corplanyComits (regul

Thpotelhas 1

indic

New

ChYorkpolic:to at

the Iprote

ToDepathe fvisiorthe s

[Apr. 1971 ] HOUSE - No.' 5301 45

is, manycreated

agencIes i

)f effec­ause the I

I

deal of !

I)tigatory t

mmends Itrend in t,Ital pro­sure theecialized

>ollutionthis actEnviron­eated inLater in:ies. The}overnor. term ofmembersLlring in­and two,membersltters re-

Hchigan,~s of ther admin­;ould be:ould beItionallywhether

II

Ii

I

~

Section 361 states that:

It shall be the duty of the Commission, exercising thepolice power of the state, to control, abate and preventthe pollution of the air, waters, coastal flats and preventdimunition of the highest and best use of the naturalenvironment of the state. The Commission shall makerecommendations to each subsequent legislature with re­spect to the classification of the waters and coastal flatsand sections thereof within the state, based upon reason­able standards of quality and use.

Some of the powers and duties of the Commission, as provided inthe act, include authority to (1) accept funds to underwrite pol­lution study and control (s. 362), (2) classify fresh water and tidalor marine waters (ss. 363 & 364), and (3) enforce specific sectionsof other statutes (s.451). Under section 413, all persons, firms,corporations or municipalities and agencies thereof who disposeany wastes into any waters are required to obtain a license. TheCommission may reject license applications under section 414 if, inits opinion, they are not in accord with applicable laws andregulations.

The broad jurisdiction and authority of the act gives powerfulpotential to the Environmental Improvement Commission whichhas received substantial additional duties and responsibilities as isindicated later in this chapter.

New York Department of Environmental Conservation

Chapter 140, Laws of New York, 1970, incorporates the NewYork Environmental Conservation Law. The act's declaration ofpolicy states that "the quality of our environment is fundamentalto our concern for the quality of life. It is hereby declared to bethe policy of the State of New York to conserve, improve andprotect its natural resources....(Art. II, s. 10).

To administer the provisions of the new law, a new agency, theDepartment of Environmental Conservation, is created (s. 11). It isthe function of the Department, in accordance with existing pro- .visions and limitations, to carry out the environmental policy' ofthe state to preserve, improve and protect the environment. The

46 HOUSE - No.. 5301 [Apr. 19

Department is also empowered to (1) coordinate and develop poli­cies, planning and programs related to the environment of thestate; (2) promote and coordinate management of water, land andair resources to assure their protection; (3) prevent pollutionthrough the regulation of the storage, handling and transport ofsolids, liquids and gases which may cause or contribute to pol­lution; (4) with the advice and approval of the EnvironmentalBoard also created by the act, to adopt, amend or repeal environ­mental standards; and (5) undertake studies.

It will be noted that the jurisdiction given to the New YorkDepartment of Conservation by this statute is broader than thatgiven to the Maine Environmental Improvement Commission bythe Maine Water Pollution Control Law.

Illinois Environmental Protection Agency

In 1970, the State of Illinois passed the Environmental Pro­tection Act which, among other terms, created the EnvironmentalProtection Agency (Ill. Anot. Stat., c. 111-1/2, s. 1001 et seq.).The Act provides that this agency shall be under th€ supervision ofa director appointed by the Governor with the advice and consentof the Senate (s. 4(a)). He is to hold office until a successor isappointed and receives a salary of $35,000 annually.

Another section of the. Act provides for the Pollution ControlBoard which is independent of the Environmental ProtectionAgency (s. 5(a)). The Act specifies that the Board shall consist offive technically qualified members, no more than three of whomshall be of the same political party. They are appointed by theGovernor with the advice and consent of the Senate and shall holdoffice until a successor has been appointed and qualified. TheGovernor is to designate a Chairman from among the five Boardmembers. The Chairman receives $35,000 per year, the othermembers, $30,000 per year.

The Board, under Title VII of the Act, is given the power toadopt regulations. When Board regulations require a permit for theconstruction, installation, or operation of any type of facility,equipment, vehicle, vessel or aircraft, it shall be the duty of theagency to issue such a permit upon proof by the applicant that theinstrumentality for which the permit is granted will not cause a

viapelad<ofn01perVlO

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.pr. 1971 J HOUSE - No. 5301 47

oli­themdionof

)01­

ltal'On-

ork:hatby

violation of the Act or of regulations under it (Title X). Anyperson who violates any provisions of the Act, or any regulationadopted by the Board, or who violates any determination or orderof the Board pursuant to the Act, shall be liable for a penalty ofnot in excess of $10,000 for the violation plus an additionalpenalty not to exceed $1,000 for each day during which theviolation continues (Title XII, s.42). The penalty may be re­covered in a civil action.

The Illinois Act has the makjngs of a very effective piece oflegislation. By placing in the agencies created by the Act power toissue regulations and to enforce their regulations with large fineseffective pollution control should result.

Pro-ntal~q.).

1 of ,sentIr IS

ltroltion,t ofhomthe

holdTheoard)ther

~r tor theility,f thet theIse a

Michigan Right to Sue Statute

Along with constitutional amendments, many states have re­cently enacted strong laws to combat environmental destruction.As illustrative of activity on this score, the following text treatsthe major provisions of the laws of three selected jurisdictions,Michigan, Vermont and Maine.

The State of Michigan has been a leader in environmental legisla­tion. On July 27, 1970, the first statute empowering any person ororganization to sue private or public bodies polluting the environ­ment was signed into law by Governor William G. Milliken(P.L. 127 of 1970). The proposal from which the resultant lawemerged was filed by Dr. Joseph L. Sax of the University ofMichigan Law School.

Under this statute, every citizen, simply by virtue of his statusas a member of the public, has an enforceable right to a decentenvironment. The statute provides that the citizen "has made aprima facie case (by) showing that the conduct of the defendanthas, or is likely to pollute, impair, or destroy the air, water, orother natural resources or the public trust therein." If the defen­dant is to prevail, he must then rebut by contrary evidence orshow "by way of an affrrmative defense, that there is no feasibleor prudent alternative to the defendant's conduct and that suchconduct is consistent with the promotion of the public health,safety, and welfare in light of the state's paramount concern forthe protection of its natural resources from pollution, impairmentor destruction." (s. 31).

48 HOUSE - No. 5301 [Apr. 197]

Conservationists throughout the country have hailed this statuteas a milestone. It marks the first time an American legislature hasrecognized the right to environmental quality and set it clearlyagainst the traditional property right to exploit natural resources.!In the past, suits by a private individual or a group, were oftendismissed because courts ruled that they had no legal standing tosue. This statute will in effect make every citizen an "attorneygeneral" as far as environmental matters are concerned.

In its pivotal provision, section 2(1) of the act provides:

The Attorney General, or any political subdivision ofthe state, any instrumentality or agency of the state, orof a political subdivision thereof, any person, partner­ship, corporation, association, organization or other legalentity may entertain an action in the circuit court havingjurisdiction where (the alleged pollution violation) oc­curred or is likely to occur for declaratory and equitablerelief against the state, any political subdivision thereof,any person, partnership, corporation, association, organi­zation, or other legal entity for the protection of the air,water and other natural resources and the public trusttherein from pollution, impairment, or destruction.

In other sections of the bill, the court is given jurisdiction todetermine whether the state agencies standards are valid, to directadoption of standards it sets, to require the plaintiff to post asecurity bond or cash not to exceed $500.00 to secure theplaintiffs ability to pay any costs or judgment which may beentered against him, to grant temporary or permanent equitablerelief and to impose conditions on the defendant deemed necessaryto protect the natural resources of the state. The act furtherprovides that in all administrative, licensing or other proceedings,"no conduct shall be authorized or approved which does, or islikely to have (the effect of polluting, impairing, or destroying thenatural resources) so long as there is a feasible and prudent alterna­tive consistent with the reasonable requirements of the publichealth, safety and welfare."

1 ].oseph L. Sax, Environment in the Courtroom, Saturday Review, October 3, 1970, pp.56-57.

LIwas

Inhibilprovthesi

Ven

Tan901­197(pUfJhavethe'

Tpon,lake:

Less than a month later, Act No. 200 of Public Acts of 1970was signed into law. Among other provisions this act provides that:

It shall be unlawful for· any person directly or in­directly to discharge into the waters of the state, anysubstance which is or may become injurious to thepublic health, safety or welfare; or which is or maybecome injurious to domestic, commercial, industrial, ag­ricultural, recreational, or other uses which are beingmade or may be made of such waters; ... or may be­come injurious to livestock, wild animals, birds, fish,aquatic life .... (s. 6(a)).

[Apr.

tatutere has:learly

1.rces.often

ing to:omey

Ir

IrI

1971 ] HOUSE - No. 5301 49

r-11g;-

.ef,1-

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ion todirect

post ·a.re thelay beuitablecessaryfurtheredings,:, or ising thel1tema-public

1970, pp.

In order to assure the efficacy of this broad sweeping pro­hibition, sections 6(b) and (c) attempt to ease the burden ofproving acts in violation of section 6. The specific language ofthese provisions is as follows:

The discharge of any raw sewage of human ongm,directly or. indirectly, into any of the waters of the stateshall be considered prima facie evidence of the violationof this section ... (s. 6(b)).

Any violation of any provision of section 6 shall beprima facie evidence of the existence of a public nui­sance and in addition to the remedies provided in thisact may be abated according to law in an action broughtby the Attorney General in a court of competent juris­diction (s. 6(c)).

Vermont "Pay as You Pollute" Law

The State of Vermorit has enacted a novel piece of legislation inan attempt to deal with the problem of pollution. Sections901-920 of Chapter 33, which became effective on January I,1970, in effect, creates a "pay as you pollute" law. The statedpurpose of this law is that the imposition of pollution charges willhave the effect of an economic incentive for polluters to reducethe volume of their discharges.

The Act works in the following way. Under section 903, allponds, lakes, reservoirs and all waters flowing into such ponds,lakes and reservoirs are designated as class A waters. The remaining

50 HOUSE - No. 5301 [Apr. 1971

waters are designated as class B waters. The Water Resources Boardis given the power to enforce the water quality standards set forthe different classification levels. The Act prohibits any person,without written authorization of the Board, to discharge into thewaters of the state any waste "which by itself' or in combinationwith the wastes of other sources reduces the quality of the re·ceiving waters below the classification established for them (s. 909(a». This section expires on July 1, 1971, at which time section909(b) becomes operative. Under section 909(b) no person isallowed to discharge any waste, substance or materials into watersof the state without first obtaining a permit from the Departmentof Water Resources. '

The holder of a permanent permit is required to process or treatthe waste in accordance with standards established by the Boardand to perform other requirements the Board feels necessary.These permits are issued only to those applicants who have alreadyplaced in operation the pollution abatement equipment suggestedby the Department.

A person who has been denied a waste discharge permit mayapply for a temporary pollution permit. In reality, those applyingfOf the temporary pollution permit will be those individuals orother organizations who have yet to install the pollution abatementequipment suggested by the Department. By January 1, 1971 theBoard shall fix and establish reasonable and just pollution chargerates for computing the amounts to be paid by temporary pol­lution permit holders.

Maine Wetlands Act

In 1967, Maine enacted the Wetlands Act which restricts boththe alteration and use of wetlands without permission from themunicipal officers concerned and the State Wetlands Control Board(R.S.A., C. 12, ss.4700·4709). The Act was intended as a con­servation measure to protect the ecology of areas bordering coastalwaters.

In part, the law provides:

S. 4701. Procedure; hearing. No person, agency ormunicipality shall remove, fill, dredge or drain sanitarysewage into, or otherwise alter any coastal wetland, as

Peby tJappneond:proteopinisafet;enjo)agingwild!:has tthe sso rereasoPOliCI

comrTh

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Aftertakendeniaamouprace

[Apr. 1971] HOUSE - No. 5301 51

:es Board.s set forr person,into the

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to waters i

partment

) or treatlie Boardlecessary.e alreadymggested

mit mayapplyingiduals orbatement1971 theIII chargefary pol-

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r ortary,as

defined herein, without filing written notice ofhis in­tention to do so, including such plans as may be nec­essary to describe the proposed activity, with the munici­pal officers in the municipality affected and with theWetlands Control Board....

For purposes of this chapter, coastal wetland is de­fined as any swamp, marsh, bog, beach, flat or othercontiguous lowland above extreme low water which issubject to tidal action or normal storm flowage at anytime excepting periods of maximum storm activity.

Persons who desire to alter coastal wetlands in ways prohibitedby the Act must obtain a permit from the municipality with theapproval of the Wetlands Control Board. The permit may beconditioned upon "whatever measures are deemed necessary, ...toprotect the public interest," and may be denied whenever "in theopinion of either body the proposal would threaten the publicsafety, health or welfare, would adversely affect the value orenjoyment of the property of abutting owners, or would be dam·~ging to the conservation of public or private water supplies or ofwildlife or freshwater, estuaries or marine fisheries." A person whohas been denied a permit or subjected to conditions may appeal tothe superior court to determine "whether the action appealed fromso restricts the use of the property as to deprive the owner of thereasonable use (of it) and is therefore an unreasonable exercise ofpolice power, or which constitutes the equivalent of taking withoutcompensation." ,

The law quickly encountered difficulties and on May 21, 1970,the Maine Supreme Judicial Court held that its application to thespecific acts before it was unconstitutional (Maine vs. Johnson,265 A. 2nd 711).

In Johnson, appellants owned a large tract which extendedacross salt water marshes. An application was made for permissionto fill a portion of this land. The Board denied the application.After lower court affirmance of the Board's action an appeal wastaken to the Supreme Judicial Court on the issue whether thedenial of the permit so limited the use of appellants' land as toamount to 1 taking of their property without constitutional dueprocess and just compensation. The Court analogized the act to

52 HOUSE - No. 5301 [Apr. 197

zoning law, and noted that the vast majority of all zoning laws areupheld as a reasonable exercise of the police power ,of the state.However, the Wetlands Act was distinguished from the conventionalzoning law. The Court noted that the wetlands of the state are avaluable natural resource of which appellants' holdings are but aminor part. It found that the benefits of the wetlands are state­wide and' should be publicly borne. However, the Court reasonedthat "to leave appellants with commercially valueless land is tocharge them with more than their just share of the cost of thisstate-wide conservation program." (p. 716).

Although the challenge to the application of the statute wassustained in this decision, th~ Court took great care to emphasizethat the case was decided on the "taking" issue and emphasizedthat the decision was limited to the facts of the case. It noted thatit does not follow that other restrictions of the law were alsoinvalid.

Chapter IV

MASSACHUSETTS LAW

Introduction

This chapter considers the principles governing Massachusetts lawon the subject of pollution abatement suits and other environ­mental remedies.

Citizens complaining about environmental abuses have severaltheories or avenues of redress available to them, some based uponcommon law, and some upon statutory forms of actions. Theseinclude but are not limited to equity suits seeking injunctive reliefto abate pollution and actions at law to recover damages forpersonal injury or property damage occasioned by environmentallyharmful activity. Additionally, there are many other importantadministrative remedies to assist the potential antipollution litigant,be he a public official or private citizen. Finally, there exists alimited area in which mandamus proceedings will lie to compelpublic officials to perform their duty to protect the environmentor to avoid environmentally harmful activity or results.

Valwidesipollmarrelaven­whe

Enf.

ScitiJAnthistradsan<cawtectpnv

Vnotarepollclassub:m01conactiEveenviindiexttsan<

1 E.st1LEPI;

[Apr. 1971] HOUSE - No. 5301 53

lWS arestate.

ntionale are a~ but a~ state­:asonedj is toof this

lte wasphasizehasizeded that:re also

~tts lawmviron-

several:d upon. Thesere relief.ges forlentally.portantlitigant,exists acompel

'onment

While each of these several remedies exist in theory they are notalways available in practice to support the pollution abatementdesires of all citizens. A major barrier to full, effective anti­pollution litigation exists in the law of standing which precludesmany suits by private citizens. This legal doctrine is particularlyrelated to nuisance suits and legal proceedings 4> compel or pre­vent action by public officials and specific attention is accorded itwhere appropriate.

Enforcement Proceedings in General

Specific conduct of public or private parties can affect ordinarycitizens in several ways and give rise to multiple causes of action.An individual may sustain personal injury· or property damage andthis will provide the basis for a civil damage action. By thetraditional common law actions of negligence, trespass and nui­sance, the individual is able to obtain _compensation for injurycaused him by environmentally harmful activity. Additional pro­tection is accorded the average citizen by special statutes creatingprivate causes of actions.1

While these remedies are compensatory in nature, their effect isnot necessarily limited to a compensatory role. If enough citizensare personally affected, as often is the fact in the case of industrialpollution, many separate suits can be brought. Sometimes, even aclass action will lie to recover on their behalf. The possibility of asubstantial damage recovery or recoveries itself ·offer a strongmotive for the existing and potential polluter to cease his pollutingconduct. When arising in this context, the private civil damageaction possibility can serve as a most effective abatement device.Even though its purpose is purely compensatory, it can accomplishenvironmental results far more extensive than the rights of theindividual citizens which are the subject of the litigation. To thisextent, the private civil actions for negligence, trespass and nui­sance perform valuable pollution abatement functions.

1 E.g., General Laws, c. 91, s. 59A; c. 130, s. 24. For a compilation of Massachusettsstatutes relating to the environment see the pamphlet, Compendium ofEnvironmentalLegislation June 1970, prepared by the Massachusetts Office of Comprehensive HealthPlanning.

54 HOUSE· No. 5301 [Apr. 19i

Ordinarily, however, the appropriate method for pollution abate­ment will be either administrative action or an injunction suit inequity. Many agencies of the state government have jurisdictionover sources of pollution and can initiate administrative action toabate pollution. Indeed, in most instances, they are the onlyparties who have jurisdiction to act to abate such public nuisances.

Because there is an overlap between public and private remediesto combat pollution problems, some comment on the practicabilityof the two approaches is appropriate, particularly in light of theHatch proposal which was deleted from the proposed amendmentto the Massachusetts Constitution.

The dangers posed by permitting unlimited citizen enforcementproceedings are obvious. The business of government would begreatly handicapped if much time had to be spent in defense ofcitizen suits challenging either the action or non-action of govern­mental agencies or officials. Moreover, to the extent that privatesuits are successful the judiciary could well intrude into the areasof administrative expertise and executive competency. These resultsare not, however, inevitable but the experience in Massachusettsunder the public trust doctrine seems to alleviate the fear. More­over, it should be noted that litigation is most expensive and thisfact alone constitutes a substantial check upon citizen suits. Onlythe most aggrieved citizens _who possess a substantial stake in theoutcome of the controversy are able to justify the personal com­mitment of funds for environmental litigation. Finally , the addi­tional fact that the citizen can litigate only through the assistanceof a lawyer also serves to· assure that groundless suits will not beinstituted.

On the other side of the issue, the arguments in favor of citizenenforcement of environmental rights are easily summarized. Gov­ernmental regulation has as yet been unable to keep the release ofpollutants within tolerable limits. Until such regulation is able tocope with the problem, those seeking to control pollution in all ofits forms will have to rely, in part, upon the assertion of privaterights. Private litigation, it may be argued is uniquely important tothe resolution of the overall pollution problem since it has alreadybecome clear that pollution control will not be achieved throughthe voluntary efforts of polluters. Ev.en where regulation presentlyexists or subsequently will be enacted, there appears ample jurisdic­tion for the maintenance of private litigation when one considers­that:

The

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2 At{uragacarsorin]

[Apr. 1971] HOUSE - No. 5301 ss

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Iediesbilityf thement

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itizenGov­

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(1) regulatory and enforcement agencies are often ineffectivebecause of inadequate funding and personnel and becausetheir enforcement powers are weak or non-existent;

(2) existing statutes may not apply to some significant types ofpollution;

(3) private suits can fill these gaps in existing statutes;(4) private litigation can also prevent inaction when a regula­

tory agency is overburdened, ignores a pollution problem,or considers it too insignificant for official action;

(5) private actions may be preferable to administrative actionwhere the need exists to discover new evidence regardingpollutants which can prevent the entrenchment of inade­quate standards in the law;'and

(6) litigation brought by individuals fulfills an extremely impor­tant publicity function and supplies a forum for new ap­proaches in advocacy.

The Law of Trespass

Trespass is traditionally defined as an actionable invasion of apossessory interest in the exclusive possession of an individual'sproperty. It is usually, but not always, associated with injury totangible property occasioned by an unlawful entry either by thedefendant himself or by some tangible object under his control. l

The essential elements that give rise to the common law actionof trespass remain intact today, although the feudal concept ofinvasion has been transmitted into the simple requirement of physi­cal entry.2 A .prima facie case is established upon the showing ofunlawful entry upon and injury to property. In most states, thepresent prevailing position is that of the Restatement of Torts, s.166, which imposes liability for trespass only in the case of anintentionaL or negligent intrusion or for some ultrahazardous activ­ity on the part of the defendant which may result in such an

1 Hakkila v. Old Colony Broken Stone &- Concrete Co., 264 Mass. 447, 162 N.E. 895(1928).

2 At cornmon law, the major types of trespass actions were: trespass quare clausum fregit,(unlawful entry or trespass to land), trespass vi et armis (trespass with force or violenceagainst the plantiff or his property); and trespass de bonis asportatis (trespass for goodscarried away). Other forms of trespass actions are not here pertinent. Each of the per­sonal or property rights protected by these old common law trespass actions exists todayin Massachusetts.

56 HOUSE - No. 5301 [Apr. 197

intrusion. In Massachusetts, the plaintiff must prove that the de­fendant's entry was intentional. Except where the actor is engagedin an. ultrahazardous activity, an unintended intrusion does notmake the defendant a trespasser.! But, while the defendant's entrymust be intentional, the plaintiff need not show that the defendantknew he was committing a trespass. By intent is meant simply theintent to enter the land and not knowledge that the land is that ofthe plaintiff; a good faith mistake will not excuse the trespass.2

While trespass is essentially an intentional tort, liability generallyfollows from the allegation and proof of unpermitted en try sincemost acts of trespass are intentional.

The apparent harshness of this doctrine is in great measure'mollified by the doctrine of "technical" trespass and the unwilling­ness of some courts to award anything more than a nominaldamage recovery in appropriate cases. The operation of these twomollifying factors is illustrated in the aerial trespass cases. 3

Under Massachusetts law recovery for a trespass is limited tocompensatory damages, or, in appropriate cases, nominal damages;punitive or exemplary damages are not recoverable. 4 However, acourt might exercise its discretion and issue an injunction againstfuture trespasses and those which are continuous. The factorswhich influence this discretion are presented below.

The Law of Nuisance

Both under English law and in the United States today, anuisance is an interference witn the use and enjoyment of land.The existence of a nuisance depends upon the circumstances. It iscreated by one's use of his property in a manner which results inunreasonable interference with the rights of his neighbor to the useand enjoyment of his property. 5

Examples of what constitutes a common law nuisances arenumerous but only a few need brief mention. Noise which consti­tutes an annoyance to a person of ordinary comfort of life and

1 Marengo v. Roy" 318 Mass. 719, 63 N.E. 2d 893 (1945).2 Geragosian v. Union Realty Co., 289 Mass. 104,19-3 N.E. 726 (1935).3 Smith v. New England Aircraft Co., 270 Mass. .511, 170 N.E. 385 (1930); Burnham v.

Beverly Ainvays Inc., 311 Mass. 628. 42 N.E. 2d575 (1942).4 Ellis v. Brockton Pub. Co., 198 Mass. 538, 84 N.E. 1018 (1908).5 FerriterlJ. Herlihy, 287 Mass. 138, 191 N.E. 352 (1934).

impwhiJtheandThefummerdondurrthesanedeafforof vdoe~

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2 Shl3 To,4 Ma5 Pre6 LeI7 Cf.

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[Apr. 1971 ] HOUSE - No. 5301 57

le de-19aged~s notentry

mdantly thehat of;pass.2

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ted tomages;ever, aagainstfactors

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impairs reasonable enjoyment of his habitation is a nuisance. 1 Butwhile considerable noise taking place for long periods of time inthe early morning may be actionable,2 noise of the same intensityand duration occurring during normal working hours may not. 3

The operation of a steel galvanizing plant emitting obnoxiousfumes and odors has been held a nuisance where everything com­mercially practicable to control fumes was not done. An aban­doned quarry which the owner permitted the city to use as adump and which became infested with cockroaches spreading overthe land in its vicinity has also been found to constitu te a nui­sance. 4 In a recent case, the Court predicated a nuisance upondeafening vibrations and even upheld a judgment including damagesfor intense nervousness requiring medication, loss of sleep and lossof weight. 5 In addition to the issue whether an offensive conditiondoes in fact exist, a relevant and vital inquiry also relates to thequestion of whether the defendant has used reasonable means toabate the offensive condition. 6

While the gist of the act for nuisance is interference with aperson's use and enjoyment of his property not all such inter­ferences constitute a tort. It is only when the interference issubstantial and derives from conduct which is unreasonable orlacking of redeeming social utility that a tort exists. 7 As thislanguage suggests, a nuisance case is considerably more complexthan a trespass case. It requires the court to engage in a difficultbalancing test, weighing the gravity of the harm caused the plain­tiff with the social utility of the conduct of the defendant. whichoften is vital to the economy of a community. This balancing testoperates to impose a substantial roadblock to the use (:ill the tortof nuisance as an environmental remedy.

Serious as this constraint is, however, a far more severe limita­tion upon the effectiveness of the remedy exists. The rigidity of

1 Maim v. Dubrey, 325 Mass. 63, 88 N.E. 2d 900 (l949);Shea v. Nationallce Cream Co.,Inc., 200 Mass. 206, 182 N.E. 303 (1932).

2 Shea v. National Ice Cream Co., Inc., supra, note 24.3 Tortorella v. H. Traiser & Co., 284 Mass. 497, 188 N.E. 254 (1933).4 Maynard v. Carey Const. Co., 302 Mass. 530,19 N.E. 2d 354 (1939).5 Proulx v. Basbanes, 354 Mass. 599, 238 N.E. 2d 525 (1968).6 Lenari v. Town ofKingston, 342 Mass. 705, 175 N.E. 2d 384 (1961).7 cr. TortoreOa v. H. Traiser & Co., Inc., supra note 31; Shea v. National Ice Cream Co.,

Inc. supra, note 24. Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 365(1914).

58 HOUSE - No. 5301 [Apr. 1971

state law, not only in Massachusetts but throughout the UnitedStates, in denying private citizens the right to sue to abate environ­mental misconduct is partially explained by the early developmentof the law of nuisance. The traditional approach has been todistinguish between private and public or common nuisances. Lawbooks abound with numerous examples of successful litigationwhere one person has used his property in a manner which causesdamage to another's or has substantially interfered with his neigh­bor's use and enjoyment of his property. In these cases, theactivity of the defendant is, or may be, limited with respect to thenumber of people injured. However, where the nuisance is wide­spread and affects many people (as does air and water pollution,the dissemination of pesticides and herbicides or the destruction ofvaluable natural areas), it is most often classified by the courts as apublic or common nuisance. Technically, to be classified as anuisance of this kind, the interference must have a substantialeffect on a right which is common to the public and, because ofthis, even a number of separate interferences with private rightswill not necessarily amount to an interference with a public right.To cite Dean Prosser's example, the pollution of a stream whichmerely affects large numbers of riparian owners is a private nui­sance only, but it becomes a public nuisance also when it killsfish. 1 The entire community need not be affected so long as thenuisance will interfere with those who encounter it in the exerciseof a public right. 2

As a result of Fifteenth Century decisions of the Englishcourts,3 faithfully followed by the American judiciary, publicofficials alone are generally accorded standing to abate public orcommon nuisances. This is true even though the public nuisancedegrades the total environment and thereby harms every memberof the community. It is only when public nuisances also createprivate nuisances (a situation referred to as a "mixed nuisance")that they are susceptible to private enforcement proceedings. In

1 William Prosser, Private Action for Public Nuisance, 52 Virginia Law Review 997 ,1001(1966).

2 The distinction between these two types of nuisances is summarized in W. Prosser, TheLaw ofTorts 593-594 (3d ed. 1964).

3 Y.B. Pasch. 5 Edw. 4, F. 2d pi 24 (1466); Y.B. Pasch. 2 Edw. 4, F 9, pI, 21 (1463); Y.B.Trini, 33 Her. 6, F 25, pliO (1455).

the s:plainlsubst"partpeculinsistlwhenin thdarnapublilkinddiffer

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(1963 Perhl

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[Apr. 1971 ] HOUSE - No. 5301 59

Jnitedviron­Jmenten to:. Lawgationcausesneigh­s, theto thewide­

ution,ion ofts as a

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the situation where a public nuisance admittedly exists, the privateplaintiff, in order to maintain his own action must show: (1) asubstantial injury or interference; and (2) that such injury is"particular" to him. Particular damages does not necessarily meanpeculiar, exclusive or unique to an individual, but the courts haveinsisted upon some distinct kind. Apparently, it is well settled thatwhere a public nuisance creates a state of substantial interferencein the enjoyment and use of land, this qualifies as "particular"damage and thus an action will be maintainable either or both as apublic or private nuisance.! But, the harm must be different inkind from that suffered by the public generally and not merelydifferent in degree. 2

Massachusetts conforms to the general rule so that public nui­sances can be abated only on suit by public officials.3 In mostinstances, the Attorney General of the Commonwealth has powerto prosecute public nuisances (G.L. c. 12, ss. 3 and 7). TheAttorney General is authorized to proceed both" on his own initia­tive, or upon the request or certification of some other appropriatestate official (G.L. c. 130, s. 26). The statutes of the Common­wealth have not preempted the remedy by indictment at commonlaw for a nuisance in carrying on an unlawful or offensive trade ormanufacturing process.4 In addition to this remedy, the AttorneyGeneral may bring an injunction in equity which is the normalremedy for the abatement of public nuisance. 5

The adherence to the traditional approach means that there isno private remedy for public or common nuisances in Massachu­setts. This is a particularly important point. By far the numericalmajority of most air, water and noise pollution emanating fromindustrial sources conceptually can be classified as public orcommon nuisances. Accordingly, the great majority of potentialenvironmental protection cases are decided or precluded on thebasis of the still-viable standing doctrine. This does not mean,

1 Wesson v. Washburn Iron Co., 13 Allen 95 (1866).2 Ibid, Cleary v. Licensing Commission of Cambridge, 345 Mass. 257, 186 N.E. 2d 815

(1962).3 Perhaps the best explanation offered by the Supreme Judicial Court for its position

appears in Wesson v. Washburn Iron Co., 13 Allen 95, at 103-104 (1866).4 Commonwealth v. Rumford Chem. Works, 16 Gray (82 Mass.) 231 (1860).5 Mayor of Cambridge v. Dean, 300 Mass. 174, 14 N.E. 2d 163 (1938); Warner v. Mayor of

Taunton, 293 Mass. 116, 148 N.E. 377 (1925).

60 HOUSE - No. 5301 [Apr. 1971 ]

however, that private actions can never be brought where a nui­sance is widespread and affects many people. The release of con­taminants into the air or water, even though affecting a largesegment of the community, can also qualify as a private or mixednuisance if it lowers the value of property or offends an individualto the extent of interfering substantially with the use and enjoy­ment of his land.!

Equitable Considerations in Injunction Suits

Equitable relief is always discretionary. Until the past decade,the Massachusetts General Laws provided that equity jurisdictionexisted only where the parties have not a "plain, adequate orcomplete remedy at law." This provision was eliminated in 1961.A difference of opinion has since arisen over the question whetherthe existence of an inadequate remedy at law remains a jurisdic­tional element or relates solely to the specific issue whether theequity court should exercise its discretion to hear and decide thecase. Although the dispute is unresolved, it is clear that theplaintiff must always establish the inadequacy of his remedy at lawbefore he will receive equitable relief.

Where a single act of trespass or nuisance has taken place andthere is no threat of continuous or future injury to the plaintiffsproprietary rights, a court of equity will not retain jurisdiction forinjunctive purposes. 2 This is true whether the plaintiff has sus­tained actual damage or only nominal damage. In both instances, asuit at law to recover damages will adequately compensate theplaintiff for the injury sustained. However, if the plaintiffs right inproperty has been repeatedly and continually invaded by the de­fendant's trespasses, he may be entitled to enjoin such conduct inthe future, if the other equities are in his favor. 3

Most instances of nuisance easily satisfy this threshold consider­ation as to the continuousness of the tort. Since nuisances general­ly result from continuing commercial or industrial activity, there isa strong likelihood that the conduct causing the interference willcontinue unless abated. One factor which greatly influences thecourt in these cases relates to the practical consideration of the

1 See Wesson v. Washburn Iron Co., 13 Allen 95 (1866).2 Gates v. Johnson Lumber Co.• 172 ri~!lSS. 495,52 N.E. 736.3 Lynch v. Union Institution for Savings, 159 Mass. 306,34 N.E. 364,365 (1893).

relativly prable re

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-1 DeB.2 Pend

Apr. 1971 ] HOUSE - No. 5301 61

nm-con-largelixedidualnjoy- ,cade,ctionte or1961.etherisdic-:r thee thet theIt law

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lsider-meral-Iere is:e will~s the)f the

relative ease of abating the nuisance. When everything commercial­ly practicable to eliminate the nuisance has not been done, equita­ble relief of some kind is generally deemed appropriate.!

In enjoining nuisances, due consideration is also given to theeconomic interest of both plaintiff and the defendant and even tothird parties as well. This is an important criteria since in manycases the public would be injured by an injunction. Often theconduct of the defendant giving rise to the interference is economi­cally beneficial to the community as a whole. This is particularlytrue in pollution cases when the defendant is an industrial plant.As a result, even though the court finds that an unreasonableinterference with the plaintiffs use and enjoyment of his propertydoes exist, it may be precluded from enjoining the continuance ofthe defendant's conduct because disproportionate harm to thecommunity would result from shutting down the defendant'soperations. This determination is most difficult to make.

Of all the various factors balanced by a court in equity, inordering an injunction in a nuisance case, this is the most impor­tant. It should be noted, however, that the hardship placed uponthe defendant and third parties as a result of the injunction is aconsideration which is primarily economic in nature and must bebalanced directly with the potential danger of substantially im­pairing the good health of the plaintiff or in causing considerabledamage to his property.

When the court decides that possible public harm outweighsprivate benefit, it will leave the plaintiff to his remedy at law,namely, damages. In other instances, the court may decide that,while an injunction ordering the immediate discontinuance of theoffensive conduct would be improper, a conditional injunctionwould be appropriate. In this event, the court could order thedefendant to cease the offensive activity by a certain date in thefuture. 2 The theory behind relief of this kind is to give thedefendant opportunity to acquire and install pollution abatementequipment. Another example of how the court might fashion anequitable remedy to fit the occasion, would arise when it ordersthe defendant to cease the activity until certain specified equip-

1 DeBlois v. Bowers, 44 F.2d 621 (D. Mass. 1930).2 Pendoley v. Ferreiro, 345 Mass. 309, 187 N.E. 2d 142.

62 HOUSE - No. 5301 [Apr. 19i

ment has been installed. This remedy has more immediate impactsince the defendant must purchase and install pollution abatementequipment at once.1

Governmental Activity and Sovereign Immunity

Often, the source of pollution or environmentally harmful activ­ity is not commercial or industrial but originates in the public orgovernmental sector of our societal structure. The average citizenhas already become aware - in some instances, painfully aware ­of the magnitude of the air and water pollution caused by munici­pal refuse and waste disposal activity. Citizen complaint and con­cern has been particularly vociferous in recent months with respectto noise pollution attending airport activity. However, citizen con­cern is not limited simply to these clearly recognized fonns ofpollution but covers a substantially broader ecological scale. Manycitizens have been troubled by the "non-polluting" action of gov­ernmental bodies. Frequently, they feel aggrieved by public activitywhich they believe deprives them of urgently needed open spaceand other esthetical or environmental amenities. To them, thequestion of governmental responsibility to dtizen constituents hasbecome particularly important.

Under existing Massachusetts law, major barriers to effectiveprivate action seeking environmental redress exist where the sourceof the challenged activity is governmental.

The Commonwealth and Its Agencies. Massachusetts remains astrong bastile for the sovereign immunity doctrine and its rule iscommonly referred to as "the Massachusetts doctrine". In brief theCommonwealth can be held answerable only to the precise extentand in the precise manner in which it has submitted itself to thejurisdiction of its courts by constitutional or statutory precept. 2

This statutory intent to confer authority to sue the Common­wealth must be clearly manifested. Chapter 258 of the GeneralLaws governE all claims against the Commonwealth. If authoriza­tion for suit is not found in Chapter 258, specific statutoryauthority must be found elsewhere in the General Laws.

1 cr., DeBlois v. Bowers, 44 F.2d 621, at 624 (D. Mass. 1930).2 Sullivan v. Commonwealth, 335 Mass. 619, 1~2 N.E. 2d 347 (1957); Executive Air

Service, Inc. v. Division of Fisheries and Game, 342 Mass. 356,173 N.E. 2d 614 (1961);Putnam Furniture Building Inc. v. Commonwealth, 323 Mass. 179, 80 N.E. 2d 649(1949).

1agaJare

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[Apr. 1971 ] HOUSE - No. 5301 63

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This same general rule of immunity also applies to citizen suitsagainst the Commonwealth's administrative agencies whether theyare public or quasi-public agencies.1

However, this does not mean that the Commonwealth's agenciesare immune from all actions at law and suits in equity. In the firstplace, the Commonwealth itself has standing to restrain the actionsof its public agencies. Where the Commonwealth is itself a partyplaintiff and the Attorney General prosecutes the suit, the action isnot demurrable even though an agency of the Commonwealth is adefendant. 2 Second, a private citizen often has standing to seekjudicial review of agency action. This last point is somewhatcomplex and deserves particular consideration.

A preliminary conceptual distinction should be noted between ajudicial remedy and the right to judicial review. The former refersto a remedy which is granted by a court after it has made fmdingsof fact and applied the applicable law to those findings. In thepresent context, the latter refers to the process whereby a courtwill examine the record established by an administrative tribunaland determine whether the fmal decision of that tribunal is basedupon correct legal principles and is substantially supported by thefacts elicited. A person aggrieved by the decision of an agency maybe entitled to judicial review under the state's AdministrativeProcedure Act (APA) which is contained in Chapter 30A of theGeneral Laws since virtually all public agencies of the Common­wealth are governed by its provisions.

The basic statutory provision governing judicial review of agencyaction appears in Section 14 of the APA which provides:

(E)x~ept so far as any provision of law expressly pre­cludes judicial review, any person or appointing authorityaggrieved by a final decision of any agency in an adjudi­catory proceedings, whether such decision is affirmativeor negative in form, shall be entitled to judicial reviewthereof, as follows: where a statutory form of judicialreview for appeal is provided other than by extraordinarywrit, such statutory form shall govern in all respects

1 Smith v. Commonwealth, 347 Mass.453, 198 N.E. 2d 420 (1964).2 Commonwealth v.Massachusetts Turnpike Authority, 346 Mass. 250, 191 N.K 2d 481

(1963).

64 HOUSE - No. 5301 [Apr. 1971

except as to standards for review ... Insofar as the stntu­tory form of judicial review for appeal is silent as toprocedures provided in this section, the provisions of thissection shall govern such proceedings.

Limitations on Sovereign Immunity. While the general rule ofnon-liability or immunity to suit on the part of the Common­wealth and its agencies is certain, its scope is not as clear. Thegovernment is not completely free from citizen control and able todo whatever it mshes. Individuals have some clearly recognizedlegal protections against governmental abuse with respect to envi­ronmental concerns. The first is based upon the constitutionalprovisions controlling the "taking" of private property for publicuses. Essentially these relate to the "eminent domain" power ofthe government but they extend well beyond direct governmentalaction to cover "inverse condemnation" proceedings resulting fromthe activity of the government which constitutes a "taking" ofprivate property for public purposes. The protection of theseprovisions are quite extensive. The "taking" may be direct orindirect, but the question of what constitutes a taking is quitecomplex.

The second and perhaps more important consideration in termsof the number of private citizens of the Commonwealth who mightbe aggrieved and who might seek legal redress relates to theactivity of public officials outside the scope of their authority.While the Commonwealth and its agencies cannot directly be suedbecause of the existence and application of the sovereign immunitydoctrine, no such immunity exists with respect to governmentalofficials. When they act in contravention of their duty or actoutside the scope of their authority, they incur personal liabilityfor injury wrongfully caused private citizens. Additional controlover abusive governmental actions is afforded the private citizen bythe extraordinary writ of mandamus.

Municipal Liability. Generally speaking, present day municipalimmunity is based on the dual personality of the municipal corpo­ration; (1) as a quasi-corporation, created by the Legislature, it isan artificial personality and has a private, proprietary function, and(2) as a body politic, it is an organ --of the government and has agovernmental function. When engaged in a private, proprietary,

corpccorpcengagratior

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[Apr. 1971] HOUSE - No. 5301 65

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corporate, or ministerial function, it is answerable like any privatecorporation or any individual for negligence of its servan ts. Whenengaged in a governmental or public function the municipal corpo­ration is immune. l

In circumstances where municipality liability in tort exists, it ismore often imposed by statute rather than judicial fiat.2 Apartfrom statute, however, municipalities are not liable in negligencefor the conduct of strictly public functions, from the performanceof which they receive no profit or advantage.3 The reason ad­vanced for this rule is that liability "would involve the municipal­ity in endless embarrassments and difficulties which would besubversive of public interests."4

Since Chapter 40 of the General Laws confers upon towns thepower to sue and be sued in their corporate capacity, in a sense,standing to sue municipal corporations is absolute. However, to theextent that the doctrine of municipal immunity prevents a munici­pal corporation from becoming liable, the power to sue thatcorporation is an empty one. Thus, municipal liability depends inlarge measure on distinctions between governmental and propri­etary functions, factors which are not relevant in actions at law orsuits in equity against the Commonwealth or its agencies.

In most instances of municipal activity polluting the environ­ment, the private citizen will not be able to bring himself withinone of the exceptions permitting municipal liability. In these cases,the only potential complainant is the Commonwealth alone. Buteven in an action by the Commonwealth special and difficultproblems arise in obtaining effective abatement orders againstmunicipalities. These can be seen in the hypothetical situation of arecalcitrant city which has been ordered by the state or an agencyof the state to do, or refrain from doing, a particular act in orderto combat pollution. The enforcement problems which arise whenthe city refuses to comply are manifest.

Since cities and towns are creatures of the state and derive theirpowers therefrom, the state can, when acting under properly

1 Thayer v. City ofBoston, 19 Pick. 511 (1837).2 See Flannery v. State Mutual Life Assurance Co., 339 Mass. 699,162 N.E. 2d 29 (1959).3 Riddle v. Locks and Canals, 7Tyng. 169,5 Am. Dec. 35 (1810);Mower v. Inhabitants of

Leicester, 9Tyng.247, 6Am. Dec. 63 (1812).4 Galassi Mosaic & Title Co. v. Boston, 295 Mass. 544,551,4 N.E. 2d 291 (1936).

66 HOUSE - No. 5301 [Apr. 1971]

enacted legislation and within the limitations of the Constitution,exercise great control over the municipal entity.1 Thus, the specialproblems of enforcement are not contingent on the state's power,but rest on the course of action which might best accomplish thedesired result.

As will be indicated later in this chapter, enforcement orders arerestricted by enacted statutes. For example, if a city refuses tocomply with an order of the Division of Water Pollution Control,the Superior Court would, as in the case of the private polluter,have jurisdiction in equity to enforce the order. However, practicalconsiderations dictate that enforcement orders against a city differfrom those issued against a private party. A private polluter can bejailed for failing to comply with a court order, but while this istrue in theory regarding public officials also it may not prove so inpractice. The city official might resign. The problems resultingfrom resignation en mass are obvious. The opinion of the SupremeJudicial Court in the Hudson case contains language suggesting theen mass resignation might not be effective. The opinion states: "Itis not all clear that compliance with decrees, to say nothing ofpenalties, could be escaped - by having the officers 'resign fromthe office before they could be held in contempt.' "2 Nevertheless,it is most unlikely that the Superior Court would hold municipalofficials in contempt and issue citation orders, let alone jail them,in the absence of specific mandatory legislation.

In a few instances the General Court has provided special en­forcement legislation for dealing with pollution caused by munici­pal corporations. Many other potentially troublesome areas remain.As yet, the General Court has not fully enacted legislation to dealwith this specific problem. Thus, public prosecution alone, eithercriminal or civil, generally is the only method for dealing withpollution emanating from the activities of municipal corporations.

Governmentally Sponsored or Licensed Activity of Private Par­ties. The Massachusetts common law on the validity of govern­mentally sponsored or licensed activity of private parties is devel­oped in the trespass cases 3 arising out of the operation of private

1 Commonwealth v. Town ofHudson, 315 Mass. 335,52 N.E. 2d 566 (1943).2 315 Mass. 335,52 N.E. 2d 566 (1943).3 Burnham v. Beverly Airway, Inc. 311 Mass. 628,42 N.E. 2d 575 (1942); Smith v. NeW

England Aircraft Co., 270 Mass. 511,170 N.E. 385 (1930).

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[Apr.1971] HOUSE - No. 5301 67

lstitution,1e special:'s power,lplish the

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Smith v. New

airports and in the nuisance cases 1 where the defendant's activitywas being conducted either under governmental sponsorship orlicense. These decisions point out that the sponsorship or licensingof the government does not vest upon the private benefactee anyremnant of the sovereign immunity blanket, except when thelatter's conduct falls entirely within the precise limits of theauthority as exercised by the government.

The Supreme Judicial Court has consistently recognized theGeneral Court's power to authorize activities which normally con­stitute a nuisance. 2 However, the General Court does not possessan unlimited license to cause or maintain a nuisance. The essentialreason advanced to support the legislative power is that slightinfractions of the natural rights of the individual may be sanc­tioned by the General Court under the police power of the state inorder to benefit the general public. Substantial interferences withprivate rights resulting from "legislative" licenses, however, fallwithin the constitutional limitations authorizing only reasonablelaws. 3 Only those nuisances which are necessarily incidental to theoperation of a licensed activity are recognizable by the GeneralCourt. 4 Furthermore, where the legislature has authorized activitythat can be performed without causing a nuisance a private remedyexists both at law and in equity when a nuisance is created. 5

Mandamus Proceedings. The Attorney General may proceed inequity to restrain the unauthorized acts of public officials oragencies.6 The remedy available to private parties is mandamus.

Mandamus is an action at law. 7 The right of citizens to maintaina petition for writ of mandamus to enforce a public duty is notmerely a derivative right.8 Mandamus is an extraordinary writ by

1 Hakkila v. Old Colony Broken Stone & Concrete Co., 264 Mass. 447, 162 N.E. 895(1928).

2 Salem v. Eastern R.R. Co., 98 Mass. 341,438, (1868);Presby v. Old Colony & NewportRy. Co., 103 Mass. 1(1869); Walker v. Old Colony & Newport Ry. Co., 103 Mass. 10,14(1869).

3 Sawyer v. David, 136 MasS.239,~243 (1884).4 Washburn & Moen Mfg. Co., v. City of Worcester, 116 Mass. 458 (1875).5 See Hakkila v. Old Colony Broken Stone & Concrete Co., 264· Mass. 447, 162 N.E. 895

(1928). For example, the Supreme Judicial Court held in Brayton v. City ofFall River,that the right to construct a sewer is not a license to cause dirt and silt to collect at adock creating a private nuisance.

6 Commonwealth v. Massachusetts Turnpike Authority, 346 Mass. 250, 191 N.E.2d481.7 Mansfield v. Langtry, 228 Mass. 262, 117 N.E. 311 (1917).8 Robinson v. Selectmen of Watertown, 336 Mass. 537,146 N.E. 2d 900 (1958).

1 Commonwealth v. Connor, 248 F. Supp. 656, (D. Mass.).2 330 Mass. 250,112 N.E. 2d 796 (1953).3 Cleary v. Licensing Commission of the City of Cambridge, 345 Mass. 257, 186 N.E. 2d

815 (1962). .

which the court will direct an officer to perform purely ministerialacts or to make decisions in matters involving an exercise ofdiscretion but without directing or influencing the exercise of thatdiscretion or controlling the substance of that decision. 1

A petitioner without special or peculiar interest in the subjectmatter has standing by reason of citizenship alone to maintain awrit of mandamus to enforce a public duty of interest to citizensgenerally. In Pilgrim Real Estate v. Superintendent of Police ofBoston,2 the Court stated:

lthas been frequently decided that where the objectof a petition is to procure the enforcement of the law, apetitioner "without special interest in the subject matterindependent of the rights of the public" has a standingby reason of his citizenship to maintain a petition for awrit of mandamus to enforce a public duty of interest tocitizens generally.

Implicit in the doctrine of· sovereign immunity is the idea thatno suit will lie against the Commonwealth when it is performing itsgovernmental duties. The availability of the writ of mandamus isconsistent with this principle. The consistency inheres in the factthat, under the situations described above, the petitioner's claim isbased on the grounds that the government, the agency or theofficial in question is acting outside of the sphere of his govern­mental function. Thus, this rationale does not ,disturb the generalrule that the Commonwealth (including its agencies) may be suedonly insofar as it has consented thereto.

Mandamus is an extraordinary writ and does not lie where theplaintiff has an adequate remedy of law. 3 Where the misuse ofpublic trust lands is involved, this principle does not present astanding problem to a petitioner in view of the fact that thedoctrine of sovereign immunity precludes recourse to an adequateremedy at law. Moreover, no adequate remedy at law can existwhere the lands in question are public since a petitioner does nothave any proprietary rights in such lands. Therefore, to the extent

68 HOUSE -- NO. 5301 [Apr. 19'i

tha1he .law

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[Apr. 1971] HOUSE -- NO. 5301 69

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lsterialise of)f that

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6 N.E. 2d

that he would be unable to .. allege damage to a property interest,he would not have the requisite standing to maintain an action atlaw.

Mandamus will not be granted where the petitioner has availablean administrative remedy.l Nor will it be granted where there is anadequate statutory remedy. 2 Moreover a writ of mandamus is notavailable to one who will not and does not adopt the statutorymethod afforded for his relief. 3 These principles will operate todeny the writ to a petitioner if a specific provision exists in theGeneral Laws granting an administrative hearing or the right tojudicial review with respect to the actions of officials pursuant totheir stewardship over public trust properties.

Eminent Domain

The power to appropriate private property for public use issubject to the limitation expressed in Article X of the Declarationof Rights of the Massachusetts Constitution 4 as amended:

... but no part of the property of any individual can,with justice, be taken from him, or applied to public use,without his own consent, or that of the representativebody of the people...

... And whenever the public exigencies require thatthe property of any individual should be appropriated topublic uses, he shall receive a reasonable compensationtherefore.

This power may be exercised by the General Court itself or byits delegates pursuant to an appropriate statute. 5 Since such stat­utes are in derogation of the rights of individual land ownership,they must be construed with reasonable strictness, so that noperson will be deprived of the use and enjoyment of his landexcept by a valid exercise of the appropriating power.

The necessity or expediency of the exercise of eminent domain

1 Iver80~v. Building Inspector ofDedham, 354 Mass. 688, 241 N.E. 2d 817 (1968).2 Gavin v. Purdy, 335 Mass. 236, 139 N.E. 2d 397 (1957).3 Duncan v. School Committee ofSpringfield, 331 Mass~ 738, 122 N.E. 2d 630 (1954).4 See also Arts. XXXIX, XLIII, XLIX, and LI of the Amendments to the Constitution. The

mechanics of an eminent domain taking are set forth in General Laws, c. 79.5 Burnham v. Mayor and Alderman ofBeverly, 309 Mass. 388,35 N.E.2d 242 (1941).

70 HOUSE - NO. 5301 [Apr.197

is a legislative function. 1 However, the issue of whether the pur­pose of the taking is a public one is subject to judicial review. 2

Also, if the use for which the taking was made is public, the issuewhether the taking is necessary or expedient is a legislative ques­tion and is conclusive. 3

Thus, as long as the taking is made for the public purpose, andjust compensation is paid, judicial review over the legislative actionis precluded. If the power of eminent domain has been delegatedby the General Court, the taking must conform to the legislativedelegation. Thus, if the property is taken for reason other thanthose provided for in the statute the taking is invalid.

Inverse Condemnation Litigation

Inverse condemnation has been characterized as an eminentdomain proceeding which is initiated by the owner of the propertyrather than by the entity possessing the condemnation power. 4 Insome states, inverse condemnation has been deemed to be opera­tive where private property has been actually taken for public usewithout a formal condemnation proceeding. 5 In other states, it isavailable where property is taken for public use under circum­stances such that no procedure provided by statute affords anapplicable or adequate remedy to allow the owner to obtain justcompensation. 6

In an attempt to circumvent the traditional sovereign immunityof governmental bodies from tort liability, actions have beenbrought on the theory that the activity constituted a "taking" ofprivate property for a public purpose for which compensation mustbe paid under the eminent domain provisions of the state's consti­tution. It is important to note that the use of the doctrine ofinverse condemnation is limited to cases in which there is a"taking" as interpreted under the eminent domain provisions.

A taking of land is normally thought of an intentional act.Compensation is provided for such takings and reflects a basic

1 Boston v. Totbout, 206 Mass. 82, 91 N.E. 1014 (1910).2 Ibid.3 Ibid at 89-90,91 N.E. at 1016.4 See, e.g., Martin v. Port of Seattle, 64 Wash. 2d 309, 391 P. 2d 540, cert. denied, 379

U.S. 989. ,5 See, e.g., Jacksonville v. Schuman, 167 So. 2d 95 (Fla. App. 1954).6 See, e.g., Hawks v. Walsh, 61 P. 2d 1109 (1936).

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Apr.1971] HOUSE-· NO. 5301 71

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policy decision to redistribute certain economic losses inflicted bypublic improvements so that they will be borne by the publicrather than wholly by owners of property which lies in the path ofthe project.! Inverse condemnation liability, on the other hand,refers to liability for unintended physical injuries to private proper­ty. The law of inverse condemnation is entangled in a complexweb of doctrinal threads. The decisional law in the jurisdictionswhich recognize such a theory of recovery contains numerousallustions to concepts of "nuisance, trespass, and negligence" aswell as to notions of strict liability without fault. Indeed, it hasbeen suggested that much of the artificiality of inverse condemna­tion law is derived largely from its use as a device to evade thedoctrine of sovereign immunity. 2 The source of much confusioncan be seen in the following statement of the Supreme JudicialCourt:

It is true, that in the exercise of the police power, theLegislature may authorize or limit the use of propertywithin certain bounds, thus changing, to a certain extent,the law of nuisance without taking property under theright of eminent domain. 3

The status of inverse condemnation in Massachusetts is some­what indefinite. In the context of governmental conduct activelyinterfering with the use of private land, the doctrine of inversecondemnation would seem to be recognized by implication.4 Inthe context of governmental restrictions on the use of privatelyowned land, there is precedent that such restrictions can amountto a "taking". 5

The United States Supreme Court has for some time recognizedthe doctrine of inverse condemnation. United States v. Causby 6

and Griggs v. Allegheny County 7 both involved the direct over

1 United States v. Willow River Power Co., 324 U.S. 499 (1945).2 See generally, VanAlstyne, Inverse Condemnation: Unintended Physical Damages, 20

Hasting Law Jouma1431 (1969).3 Lentell v. Boston and Worcester Street Ry., 202 Mass. 115,88 N.E. 765 (1909).4 See the discussion of "taking" in Sullivan v. Commonwealth, 335 Mass. 619,142 N.E. 2d

347 (1957).5 Pittsfield v. Oleksak, 313 Mass. 553. For a complete discussion of all such case, see

Comm'ro!Natural Resources v. S. Volpe & Co., 349 Mass. 104 (1965).6 328 U.S. 256 (1946).7 369 U.S. 84 (1962).

72 HOUSE -- NO. 5301 [Apr. 1971

flights of jet aircraft at tree-top level, causing intolerable livingconditions for the residents of areas adjacent to airport runways.The Supreme Court of the United States found a "taking" in eachcase. Since these decisions, federal and state courts have viewedprivate and public inverse condemnation actions as trespass pro­ceedings.

The limits of the Causby and Griggs "taking" theory weresubsequently delineated by the Tenth Circuit Court in Batten v.United States1 when it affirmed the district court's judgment forthe defendant military airport. The novel distinction arising fromthe Batten decision was that liability for "taking" arises fromdirect overflights but not from by-flights contiguous to the plain­tiffs property. Chief Judge Murrah dissented vigorously andcriticized the majority for extending the property boundaries ofthe plaintiffs land vertically in order to determine if an actualtrespass had occurred. He suggested the test should be the sub­stantiality of interference, instead of the metes and bounds ofproperty markers.

The analysis of Judge Murrah has since become the presentapproach of some state courts to the problem of air traffic noisepollution. The decision of the Supreme Court of Oregon in Thorn­burg v. Port of Portland2 was the first judicial expression of thisapproach. The majority, in a well reasoned opinion, rejected theapproach of Batten, as a "sterile formality" and proceeded upon anuisance theory to determine whether a substantial interferencewas sufficient to constitute a taking.

The inverse condemnation doctrine has a two-fold effect on thelaw of standing: (l) the requisite standing will exist if the allega­tions of the complaint present real and substantial damages to theplaintiffs property interests, and (2) the doctrine of sovereignimmunity will not preclude a suit against the Commonwealth orone of its officers, even while operating in a governmental capac­ity, to the extent that the plaintiff properly alleges a "taking" ofhis property within the meaning of the Constitution. The properprocedure for such a plaintiff is a petition for a writ of mandamus

1 306 F.2d 580 (10th Cit. 1962).2 376 P.2d 100 (Or. 1962). See also Aaron v. Los Angeles (Super. Ct., Los Angeles County,

1970).

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Apr. 1971] HOUSE -- NO. 5301 73

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The Public Trust Doctrine

In General. The public trust doctrine emanates from an ideawhich existed both in Roman and in English Law that certainproperties ought to be preserved and protected for the commonuse. Examples of property appropriate for public use are fisheries,oceans, running water, etc. The doctrine is a creation of the courts,and, stated in general terms, is the imposition of stricter standardsupon governmental activity with respect to certain resources thanare required of governmental activity generally. For example, whileit might be wholly appropriate for a government to convey apublic building of no historical significance to a private citizen forconsideration, the conveyance of submerged lands within its juris­diction to a private citizen would seem to call for the applicationof different standards.

Much misunderstanding exists with respect to the true nature ofthe public trust concept. First, the doctrine is not a judicialdeclaration of property rights in certain resources enjoyed by allcitizens. If such a proprietal right existed in all citizens, anysubsequent attempt by a state to withdraw the right would beviewed as a taking or condemnation of such property by thegovernment and would be compensable as such. The rationale ofcompensating private individuals for the acquisition of their proper­ty by the public is that the cost ought to be borne by the publicsince the public will ultimately enjoy the benefit of such acquisi­tion. If the interest in public trust property was viewed as propri­etary, compensation for such takings would be inconsistent withthe underlying rationale of the Fifth Amendment in that owner­ship of the land in question would already be in the public as awhole and the cost would be properly borne by the public.

Secondly, the public trust doctrine is not an irrevocable commit­ment of certain resources to certain uses. Such a commitmentwould be inconsistent with the government's general duty to pro­vide for the welfare of its citizens in changing circumstances andconditions.

1 See Dodge v. County Commissioners ofEssex, 3 Met. 380 (1841).

74 IIi0USE - NO. 5301 [Apr. 197]

TIlof grthatan at

ThisPubliIntertrustavailcwithwhiclrestripriva'casesthe S

MaSSG

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-1 /llin,2 68 ~

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The public trust doctrine has been subject to varying interpreta- Thetions by different courts. Thus, a synthesis of the decisions with veyffirespect to the public trust doctrine from all jurisdictions mightexpress the doctrine as follows: No giant of public trust propertiesmay be made to a private party if the grant is of such magnitudethat the state will have abrogated its own authority with respect tothe property. Also no grant is illegal merely because it diminishesto some extent the quantum of traditional public uses.

As the above discussion may suggest, the critical question in thearea of public trust litigation is whether the state can he said tohave made commitments with respect to the use of particularresources. In other words, what are the public trust properties? Noclear answer to this question has been formulated. Courts haverelied on a variety of sources from which they infer the existenceof trust obligations with respect to certain property: Roman andEnglish law; the existence of protective statutes; or the terms of aprior conveyance to the government of the property by a privatecitizen. Nonetheless, public trust property may be defined as thatproperty which has been acquired by a governmental entity eitherby purchase devise or taking, and with respect to which the termsof the acquisition provided that the land should be used for thebenefit of the citizens of the state. It may also be property whichthe Legislature has designated for public purposes by the enact­ment of protective statutes. As a consequence thereof, the respon­sible state officials are obliged to maintain and use them in accor~

dance with the public benefit.The Illinois Central Railroad Case. The point of departure for

most discussions of the public trust doctrine is the case of IllinoisCentral Railroad Company v. Illinois. 1 This controversy arose whenthe State of Illinois conveyed title to extensive areas of submergedlands laying under Lake Michigan to the railroad. In fact, theentire submerged waterfront of the city of Chicago was embracedin the transfer. The state later repented this generosity and broughtan action to have the earlier grant invalidated. The United StatesSupreme Court held that the conveyance of these trust lands wasbeyond the power of the State Legislature in the first instance.

1 146 U.S. 387 (1892).

[Apr. 1971] HOUSE· NO. 5301 75

l'reta­s withmightpertiesnitudelect tolnishes

in thelaid toticulares? Noshaveistencein andflS of aprivateas that. either~ tennsfor thewhichenact­

respon­. accor-

ure forIllinoise whenmergedct, theIbracedHoughtl StatesIds wasIstance.

The state held that title to the lands as the time of the con­veyance, but the Court found:

It is a title different in character from that which thestate holds in lands intended for sale ... It is a title heldin trust for the people of the state that they may enjoythe navigation of the waters, carrying on commerce overthem, and have liberty of fishing therein freed from theobstruction or interference of private parties.!

The decision in this case does not impose a general prohibitionof grants to private parties but seems to stand for the propositionthat every state may not divest itself wholly of authority to governan area in which it has responsibility to exercise its police power.This case is the genesis of what Joseph Sax in his article, ThePublic Trust Doctrine in Natural Resource Law: Effective JudicialIntervention,2 refers to as the central substantive thought in publictrust litigation that, "(W)hen a state holds a resource which isavailable for the free use of the general public, a court will lookwith considerable skepticism upon any governmental conductwhich is calculated either to reallocate that resource to morerestricted uses or to subject public uses to the self-interest ofprivate parties." As the ensuing discussion of the Massachusettscases indicates, this thought has been applied essentially intact bythe Supreme Judicial Court.

Massachusetts Law on Public Trust Doctrine

In Massachusetts there is no general prohibition against thedisposition of trust properties, even on a large scale. This is madeclear by the early case of Commonwealth v. Alger,3 which heldthat the Commonwealth may recognize private ownership in tide­lands and submerged lands below the high water mark. It isimportant, however, to distinguish conceptually between the factthat· no general prohibition exists and the fact that much morerigorous standards are imposed with respect to the disposition ofsuch properties. These standards have evolved in the more recentcases discussed below.

1 Illinois Central R.R. Co. v. Illinois, 146 U.S. 387,452 (1892).? 68 Michigan Law Review 471 (1970).3 7 Cush. 53 (1851).

--- ---------------

76 HOUSE - NO. 5301 [Apr. 197

In 1898 Mount Greylock (9,000 acres) was acquired by the stateof Massachusetts, pursuant to public pressure to create a publicpark and to preserve the wilderness area. The General Court estab­lished the Greylock Reservation Commission to administer theproperty (Acts of 1898, c. 543). In 1953, however, the GeneralCourt enacted another statute creating an Authority to constructand operate skiing facilities on Mt. Greylock (c. 606). This statuteauthorized the Commission to lease "any portion of Mt. Greylock"to the Authority. To finance this skiing resort, a private jointventure corporation was formed, which was to receive 40% of theanticipated net profits. Five local citizens, alleging that they werebeneficiaries of a public trust, sued the Reservation Commissionand Authority and sought invalidation both of a prior conveyanceof 4,000 acres and the contract between the Authority and theprivate corporation. The Supreme Judicial Court held both thelease and management agreement invalid as exceeding the statutorygrant of authority. 1 The rationale of the Court's decision was thatthe profit sharing feature suggested a commercial enterprise notcontemplated by the statutory authorization. Such a commercialenterprise constituted too much delegation of responsibility by theAuthority.

The principle enunciated by the Gould decision is an interestingone. It rests not upon the invalidation of the statute because itinvolved a modification of public land. Rather, the Court imposeda presumption that the state does not ordinarily intend to diverttrust properties in such a manner as to lessen public uses. Whereasthe Court does not attempt to tell the General Court that it is notacting in the public interest, nevertheless, its interpretative functionis to be exercised in accordance with an assumption that theGeneral Court is acting to maintain broad public uses.

In his article cited above, Professor Sax reads Gould as tendingto overrule the doctrine that citizens must acquiesce in discretion·ary administrative actions which are not plainly in contravention ofthe law. This conclusion finds support in the case of Sacco v.Department of Public Works. 2 In this case, residents of the Townof Arlington sought to prevent the Department of Public Works

1 Gould v. Greylock Reservation Commission, 350 Mass. 410, 215 N.E. 2d 114 (1966).2 - 352 Mass. 670, 227 N.E. 2d 478 (1967) ..

(DPporaut1Dertionfor"thlto tlaneThemacothlto 1Theapp:arne

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[Apr. 1971 ] HOUSE - NO. 5301 77

',e statepublic

: estab­:er the}eneralnstructstatuteylock"e jointof they werenission'eyancend the)th theatutoryras thatise notmercialby the

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1966).

(DPW) from filling Spy Pond as part of its plan to relocate aportion of a state highway. The DPW proposed this action underauthority conferred by two broad statutes. The first permitted theDepartment to take "such public lands, parks, playgrounds, reserva­tions, cemeteries, highways or parkways, as it may deem necessaryfor carrying out the provisions of this act." The fecond stated that"the Department shall ... (h)ave charge of the lands ... belongingto the Commonwealth and shall ... ascertain what portions of suchlands may be ... improved with benefit to the Commonwealth."The Supreme Judicial Court held that this statutory language wasinadequate to support the proposed action. The Court cited an­other Massachusetts statute which manifested the legislative intentto preserve the great ponds of Massachusetts for the use of people.The ultimate disposition of the case was that the Court specificallyapproved the filling in of only 4.7 acres of Spy Pond, a far lesseramount than the Department originally sought.

Perhaps the most explicit enunciation of the public trust law asit exists in Massachusetts today is found in the case of Robbins v.DPW.1 This was a suit by private citizens to prevent the transfer ofFowl Meadows, a tract of land owned by the Metropolitan DistrictCommission (MDC) in Milton, to the DPW for highway construc­tion purposes. The MDC, an agency which has conservation ­related responsibilities by statute, was a co-defendant. A statuterequired that the transfer be approved by the Governor and theExecutive Council. The Supreme Judicial Court, notwithstandingthe approval by the MDC, the Governor, and the Council, heldthat the statute failed to "state with the requisite degree ofexplicitness a legislative intention to affect the diversion of usewhich the DPW seeks to accomplish." In the course of its opinion,the Court enunciated clearly what the state of the public trustdoctrine in Massachusetts is today: 2

We think it is essential to the expression of plain andexplicit authority to divert parklands, Great Ponds, reser­vations and kindred areas to new and inconsistent publicuses that the Legislature identify the land and that there

1 355 Mass. 328, 244 N.E. 2d 577 (1969).2 Ibid, at p. 331.

78 HOUSE· . NO. 5301 [Apr.

appear in the legislation not only a statement of the newuse, but a statement or recital showing in some waylegislative awareness of the existing public use. In short,the legislation should express not merely the public willfor the new use but its willingness to forego or surrenderthe existing use.

Thus, this pronouncement seems consistent with two centralthoughts in the public trust area: fust, there exists no prohibitionagainst the government conveying public trust lands, and, second,where public trust lands are involved the government must observehigher standards with respect to its activity than it must observe inother matters. Thus, the rationale behind the public trust doctrinein Massachusetts seems to be the prevention of low visibilityadministrative decisions which might have detrimental effects onthe environment and to foster the awareness on the part of stateagencies of the possible implications of their decisions,

Enforcement of Public Trust Obligations

In the area of public trust property, the substance of thecomplaint directed towards the Commonwealth or an officer there­of is that the property in question is not being used according toits intended public uses. Since mandamus is normally used tosecure the performance of an alleged public duty, it is the properremedy to require the enforcement of duties with respect to publictrust property.1

Relief by restraining affirmative action ordinarily is given inequity by preventive injunction, but relief against inaction bycompelling performance of public or quasi-public duties is ordinari­ly given at law by writ of mandamus.2 In the area of public trustlitigation, this distinction is critical. Thus, in Nickols v. Commis­sioners of Middlesex County, 3 the petitioners sued to enforce apublic trust with respect to the Walden Pond State Reservation. Indoing so, they sought the general equity jurisdiction of the court, a

1 Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 166 N.E. 2d 911 (1960).2 Department of Public Utilities v. Trustees of Properties of New York, N.H., & H.R.R.

Co., 304 Mass. 664, 23 N.E. 2d 647 (1939).3 341 Mass. 13, 166 N.E. 2d 911 (1960).

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23 .

~pr. 1971 ] HOUSE ._- NO. 5301 79

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bill in.eg~itY1Je!~gJiled on September 13, 1957. The petitionersalso filed a petition for a writ of mandamus on October 8, 1957.The Court dismissed the equity suit holding that such a suit cannotbe maintained under the general equity jurisdiction unless theAttorney General intervenes or grants the taxpayers .authority tosue. However, the Court held that the citizens have standing toenforce by mandamus the public duty of the Commissioners ofMiddlesex County, acting as the Walden Pond State ReservationCommission, to observe any trust obligation imposed by deeds ofgift on the shores of Walden Pond. ''The petitioners have standingas citizens by mandamus to enforce a public duty of interest tocitizens generally." 1 The Court issued the mandamus writ orderingthe Commission to cease removing trees from the slopes of WaldenPond and from constructing a beach house. There were also generaltenns ordering future observance of their obligations.

The question of a private citizen's standing to invoke the generalequity jurisdiction of the court with respect to the misuse ofpubIlc trust property was also litigated in Loschi v. MassportAuthority.2 In this case, there was no accompanying petition for awrit of mandamus. The petitioners were residents of NeptuneRoad, East Boston, and brought this action to challenge therespondent's taking by eminent domain of Wood Island Park andthe tidal flatlands for the extension of a runway at Logan Airport.An interlocutory decree sustaining the Authority's demurrer wasaffirmed on the ground that the petitioners lacked standing:

The proper public officer to protect park lands by abill in equity is the Attorney General. Under principlesstated in the cases just cited, (one of which was Nickols,supra) that demurrer was properly sustained on the fustground. 3

Of the public trust cases discussed above, both Gould andRobbins were petitions for a writ of mandamus. The Sacco case,on the other hand, was a suit to enjoin the DPW from filling a

1 341 Mass. 18, quoting from Pilgrim Real Estate Inc. v. Superintendent of Police ofBoston, 330 Mass. 250, at p. 251 (1953).

~ 354 Mass. 53.3 Ibid, at p. 60.

80 HOUSE - NO. 5301 [Apr. 197

"great pond" as part of its plan to relocate part of the statehighway. Although the plaintiff sought the general equity jurisdic­tion of the court, the suit was not dismissed for lack of standing.At first glance, this would seem inconsistent with the rationale ofthe cases just discussed above. How~ver, a footnote to the caseindicated that the Department of Public Works had decided not toargue the standing issue before the court.

Administrative Remedies

In General. In the section dealing with governmental activity, itwas noted that the Administrative Procedure Act (APA) is notconcerned with the creation of standing rights but rather providesstandards and procedures applicable when the vindication of suchrights against a public agency is appropriate. The existence of anadministrative remedy is governed by statute. For instance, Section1 of the APA defines an adjudicatory proceeding as "a proceedingbefore an agency in which the legal rights, duties or privileges ofspecifically named persons are required by constitutional right orby any provisions of the General Laws to be determined afteropportunity for an agency hearing." This section summarizes themajor provisions of the General Laws which require proceedingsbefore selected public agencies which either have some control overenvironmental quality or whose own actions affect the environ­ment.

The focus of this section is not so much directed at the sub­stantive scope of the powers and duties of the several public andquasi-public agencies of the Commonwealth, but rather at theirprocedural requirements. The attempt is simply to illustrate thescope of administrative remedies available to private parties whoeither wish to initiate agency action or who are affected oraggrieved by agency action. The following pages present a surveyonly. No attempt has been made to catalogue all available adminis­trative remedies as this would greatly expand the scope and lengthof this report. Also, some agencies such as the Massachusetts PortAuthority and the Massachusetts Turnpike Authority have beenomitted since no specific provisions for administrative hearings arecontained in their statutes.

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Apr. 1971] HOUSE - NO. 5301 81

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The Department of Natural Resources

Chapter 21 of the General Laws governs the operation of theDepartment of Natural Resources. The Department is mandated toexercise general care and oversight of the natural resources of theCommonwealth and of its adjacent waters; to make investigations,and to carry on research relative thereto; and to propose andimplement measures for the protection, conservation and control,use, increase and development thereof (s. 1). The Department'swide responsibilities are administered through several divisions andcommissions, the most important of which are the Divisions ofWater Pollution Control and Mineral Resources, respectively.

The Division of Water Pollution Control was set up as the resultof 1966 legislation (G.L. c. 21, s. 26). Its powers and duties arequite extensive and are outlined in section 27 and in sections 44through 46, the last three of which were added in 1970 (Acts of1970, c. 704).

Among other duties, the Division is responsible for protectingthe waters of the Commonwealth from oil pollution (s. 27). When­ever there is spillage, seepage or filtration of oil which may resultin damage to the beaches or coastal areas, the Division is directedto undertake the containment and removal of the oil in themanner it considers best and most expedient under the circum­stances in order to safeguard the water quality (s. 27, cl. 10).Moreover, it shall determine the person or persons responsible forcausing such spillage. Under newly enacted legislation, "all personswho owned or controlled the oil or who owned, controlled orleased the vessel, tank, pipe, hose or other container in which theoil was located when the spillage, seepage or discharge occurred"are jointly and severally liable to the Commonwealth both for allcosts and expenses incurred by the Division in making its investiga­tion and in containing and removing the oil, and "for all damagesdone to natural and recreational resources, including all costs ofrestoring damaged areas to their original condition.... " (G.L. c.21, s. 27, Acts of 1970, c. 827). On the request of the Director ofthe Division of Water Pollution Control, the Attorney General isdirected to bring an action of tort to recover these costs and 'expenses which may be used for the purposes set forth in theapplicable sections of the law without further appropriations. Thestatute further provides that the persons who owned, controlled or

82 HOUSE - NO. 5301 [Apr. 1971 :

leased the vessel or container involved in the oil spill shall also beliable "to any other persons" for damages to his real and personalproperty1 and additionally provides that "(t)he person responsiblefor causing such spillage, seepage or discharge shall be punished bya fine of not more than ten thousand dollars for each day suchspillage, seepage or discharge continues, or by imprisonment fornot more than two years or both." It should be noted that theperson charged with criminal liability is the person responsible forthe oil spill, not necessarily the owner of the oil or the vessel orother container in which the oil was being transported. In addition,the statute provides that any person who removed the oil from thewaters of the Commonwealth or from the adjoining shorelines shallbe entitled to reimbursement for reasonable costs if the oil spillresulted from negligence.

The Division of Water Pollution Control has other importantpollution control powers. The Director is authorized to ordercorrection of a condition which is hannful to water quality stan·dards and which results from the discharge of sewage, industrialwastes, oil, debris or other material into the waters of the Com­monwealth (s. 44). Further, the Division may also "require byorder a city, town, district, person or any other entity maintaininga sewerage system or water pollution abatement facility to provideand operate such facility in such a manner as is in its opinionnecessary to insure adequate treatment prior to discharge into thewaters". (s. 45).

The controlling statute includes provisions for hearings and pro·vides that all orders, permits or other determinations of the Direc·tor shall be subject to judicial review under the AdministrativeProcedure Act (ss. 44 and 46).

In 1968, the Division of Mineral Resources was created (G.L. c·tll21, s. 54).2 The duties of the Director of Mineral Resources . ~

include insuring the proper utilization of such resources consistentwith the harvesting and propagation of other valuable resources

. and with the general safety, welfare and convenience of the Com-

1 Civil liability is also provided by G.L. c. 130, s. 24, for double damages to private fisheryrights in the public fisheries of the Commonwealth.

2 As defined by the section, these resources shall mean oil, gas, fossil fuels, sulphur, metals,ores, minerals, rock, soil, sand and gravel, on or in the coastal waters or lands thereunder.

monvReSOllicensexclusuchtionlicensadop1whiclwatelpromrequi:extra,extrapurp<

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[Apr. 1971) HOUSE -- NO. 5301 83

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also belersonallonsibleshed byay suchlent for:hat thedble foressel orddition,'om thees shalloil spill

portant) orderty stan­dustriale Com­uire byltainingprovideopinion.nto the

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monwealth. With the approval of the Commissioner of NaturalResources and the Public Works Commission, he is empowered tolicense the orderly exploration for mineral resources, to leaseexclusive rights for the extraction of such resources, and to adoptsuch rules and regulations relating to such exploration and extrac­tion in and over the coastal waters of the Commonwealth. Nolicense may be issued nor lease granted, and no rule or regulationadopted, until the Director has held a public hearing, notice ofwhich has been given to each city or town bordering on the coastalwaters of the Commonwealth. However, the rules and regul~tions

promulgated may provide for reasonable exemptions from therequirements established by section 53 relative to leases for theextraction of mineral resources. Furthermore, any exploration orextraction of the materials necessary for highway and other publicpurposes are also exempt.

Recent legislation has placed the Water Resources Commissionwithin the Department of Natural Resources (G.L. c. 21, s. 8). Inaddition to its duties in the fields of water conservation and floodcontrol, the Commission has power to adopt rules and regulationsto protect the public and the environment from the effects ofunregulated handling and disposal of certain chemicals and otherhazardous wastes (s. 57). Such handling or disposal of hazardouswastes must be pursuant to a license granted by the Commission.The Superior Court has jurisdiction in equity to enforce the pro­visions of the Act and to remedy any violation thereof, and hasjurisdiction to provide injunctive relief.

Other important powers of the Department appear in Chapter130 of the General Laws' which governs marine fish and fisheries.Sections 22 through 27 contain provisions relative to the manage­ment of coastal waters.1

. If the Commissioner of Natural Resources determines that anymarine fishery of the Commonwealth is of sufficient- value towarrant the prohibition or regulation of the discharge of pollutantsfrom any source which might injure these fisheries, he must notifythe Commissioner of Public Health (s. 22). After reasonable notice

1 The Department exercises similar powers in respect to inland waters (G.L. c. 131, ss. 28and 41).

84 HOUSE - NO. 5301 [Apr. 19

is given to all interested parties, the Commissioner of Public Healthis to hold a public hearing in the location where the discharger ofthe noxious substance is located. Any person shall be heard at thehearing. If the Commissioner finds· injury sufficient to warrantaction, he can prohibit or regulate the discharge in question.However, upon petition of any party aggrieved by an order of theCommissioner of Public Health, the Superior Court, in equity, mayhear such parties and annul, alter or affirm the order.

Under the provisions of Sections 76 and 77 of Chapter 130 theCommissioner of Natural Resources, after obtaining the approval ofthe Board of NaturaJ Resources may construct and operate shell­fish purification plants in such areas as he deems necessary.

To help defray the costs of the operation and maintenance ofpurification plants the users are charged 50 cents per one-halfbushel of shellfish and the cities and towns from where· theshellfish were taken are charged a proportionate amount of thewhole based upon the number of bushels taken from their areawhich were delivered to the plant for purification. The amountcharged is determined by the Commissioner of Natural Resourcesannually and is paid by the cities and towns into the StateTreasury.

The Department of Public Utilities

Many of the actions of this agency either in its own right or byapproval of plans submitted by the utilities it regulates have envi­ronmental consequences. The administrative remedies applicable tothe DPU are, therefore, very important.

The Department of Public Utilities is under the supervision andcontrol of a seven-member Commission (G.L. c. 25). When re­quested by any party of interest, the Commission shall rule upona.TlY question of substantive law properly arising in the course ofany proceeding before the Commission, or any member or mem­bers thereof, and any party interested or aggrieved by such rulingmay object thereto and may secure judicial review. MY failure orrefusal of the Commission to rule upon such question at or priorto the entry of a final order or decision shall be taken andrecorded as a ruling adverse to the party requesting the ruling.Appeals as to matters of law from any final decision, order orruling may be taken to the Supreme Judicial Court by an aggrieved

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[Apr. 1971] HOUSE - NO. 5301 85

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party in interest with the filing of the written petition praying thatthe order of the Commission be modified or set aside in whole orin part. However, the order of the Department shall be effectiveand may be enforced according to its terms and its enforcementshall not be suspended or stayed by the entry of the appealtherefrom.

Precise rules of evidence are not applicable to Department ofPublic Utility hearings. Cases under this section, however, con­sistently place the burden of proof on the party aggrieved by aruling or order of the Commission.

The Department of Public Works

The statutory authority for- the operation of the Department ofPublic Works (DPW) is contained in Chapter 16 of the GeneralLaws, although its specific duties are covered in other statutes.Thus the responsibility of the DPW with respect to state highwaysis controlled by Chapter 81. Among the statutory duties imposedis the provision that the DPW shall give public notice of and holdat least one public meeting annually in each county for the opendiscussion of questions relative to the public ways. In this regard, a1966 law imposed some important ecological duties upon the DPW(c. 470). The statute provides that: ~'(T)he Department of PublicWorks is hereby directed that in highway construction both by theCommonwealth acting singly, and in cooperation with other politi­cal subdivisions, advance planning shall provide for the protectionof water resources, fish, and wildlife and recreational values (em­phasis supplied)." The interesting question with respect to thisstatute is whether a private litigant has standing under it topetition for a writ of mandamus to compel DPW officials to act inaccordance with its tenns.

Chapter 91 of the General Laws generally outlines the duties ofthe DPW relative to the Commonwealth's lands and islands as wellas its waterways. In general, this agency 'has jurisdiction over thebuilding and improvement of structures in and around the harborsof the Commonwealth and has responsibility for the general careand supervision of the harbors and tidewaters of Massachusetts, ofthe flats and lands flowed thereby and of the waters and banks ofthe Connecticut River and the non-tidal portion of the Merrimack

86 HOUSE -- NO. 5301 [Apr. 19~

River in order to prevent unauthorized encroachments and causesof every kind which may injure the same (ss. 10-12).

Under section 11 which contains the provisions for the improve­ment and preservation of rivers, streams, and harbors, no workshall be begun until after a public hearing has been held and asurvey and an estimate of the cost has been made. Similarly,section 12 provides generally that all structures in the Connecticut,Westfield, and Merrimack Rivers must be licensed by the DPW orthey will be considered public nuisances. The Attorney Generaland the District Attorneys shall, at the request of the Department,institute proceedings to enjoin or abate any such nuisance. How­ever, the section specifically provides that its provisions and anysuch license shall not impair the legal rights or remedies of anyperson. Moreover, section 12A, which contains the provisions forlicensing structures in streams with respect to which expendituresfor channel and flood control have been made, inch,Jdes the sameremedial provisions found in section 12.

By law, the Department may issue licenses for the constructionof building and related enterprises within the tidewaters of theCommonwealth or in the waters of a great pond or outlet thereof,or below the high water mark of the Connecticut or MerrimackRivers (s. 23). Similar licenses may be granted by legislative action.However, any unauthorized activity of this type shall be considereda public nuisance and the Attorney General or the District Attor­neys within their respective districts shall, at the request of theDepartment, institute proceedings to enjoin or abate such nuisanceor to restrain the removal of material from any bar or breakwaterof any harbor. However, this section contains no provisions specif­ically preserving the legal rights' or remedies of privat~ litigants asdo sections 12 and 12A.

Section 30A of Chapter 91 deals with the removal of naturalbarriers which prevent erosion by the sea. Briefly, it provides thatanyone who removes such a natural barrier or other material fromland bordering on the sea, which barrier furnishes protection tosuch land and adjacent upland against erosion by the sea, shall bepunished by a fine of not more than $500. It further provides thatthe Superior Court shall have jurisdiction in equity to enforce theprovisions of the section. A petition for such enforcement may befiled by the Attorney General, the selectmen of the town, or the

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mayor of a city in which such barrier is located, or any personwho may suffer damage in his property by such removal.

In respect to violations of Chapter 91 provisions, the SupremeJudicial Court shall have jurisdiction in equity, upon informationfiled by the Attorney General.

Among other environmentally-related responsibilities, the DPW isnow charged with implementing programs relative to solid wastedisposal. However, this newly-acquired authority is subject to cer­tain conditions. Thus, the Department of Natural Resources andthe Department of Public Health must assent to the disposal sitechosen by the DPW. Moreover, the approval of such a site iscontingent on a finding that the site has not been rescindedpursuant to Section 150A of Chapter 111. That section providesthat the assignment of any place as a dumping ground or as a sitefor a refuse disposal incinerator may be rescinded, after a publichearing, by the Board of Health or by the Department of PublicHealth On its own initiative or upon complaint by any personaggrieved by the assignment if a nuisance can be shown. Therefore,since Section 19 of Chapter 16, which contains these provisions forthe disposal of solid wastes, has incorporated Section l50A ofChapter 111 by reference, a private citizen apparently has legalstanding to challenge the choice of dumping sites by the DPW.

Although not alluding specifically to the DPW, Section 59 ofChapter 91 protects the lakes, rivers, tidal waters and flats of theCommonwealth from damage caused by crude oil, its products,other oils and bilge water. Specifically, it provides that whoeverpumps, discharges or deposits these substances into or on thewaters in such manner as to pollute or contaminate them, create anuisance or injure the public health shall be punished by a fine ofnot more than $1,000. In addition to vesting enforcement duties inthe Department of Public Safety and officers authorized to makearrests, the statute also provides that the offender shall be liable intort to the person whose property is so damaged in double theamount of damages sustained by him (s. 59A).

The Department of Public Health

The authority and responsibilities of the Department of PublicHealth (DPH) are most extensive and particularly important to the

88 HODSE- NO. 5301 [Apr. 1971

ecology of the Commonwealth, especially in the area of air andwater pollution (G.L. cc. 111-114). By law, the Department isrequired to take cognizance of the life, health, comfort and con­venience of the citizens of the Commonwealth; conduct sanitaryinvestigations; advise the government concerning the location andthe sanitary condition or any public institution; oversee inlandwaters; and control the pollution or the contamination of lakes,ponds, streams, tidal waters and flats (G.L. c. 111, s. 5).

The DPH's relationship to local communities is most important.Only two examples are here mentioned. Although the DPH estab­lishes a sanitary code and regulations to protect and improve thepublic health of the Commonwealth, local boards of health havethe primary power and responsibility to enforce these regulations.However, in certain situations, the DPH may assume the duties andpowers of a local board of health to cause compliance with thecode. Its authority to do so varies. When an alleged violationoccurs in one city but affects the residents of another, the DPH,upon appeal by any aggrieved person or agency, may assume all ofthe duties and powers of the local board of health to bring aboutcompliance with the code. In the case of an alleged violation whichaffects the residents of the city or town in which the violationoriginates, a person aggrieved by a ruling of the local board or byits neglect or refusal to enforce the rules and regulations estab­lished under the sanitary code may apply directly to the DPH.After consultation with the local board, the DPH may hear anddetermine the appeal and exercise in such case all the powers ofthe local board.

Another illustration of the relationship between the DPH andlocal boards of health is contained in Chapter 111. Section 31Cprovides that any board of health has jurisdiction to regulate andcontrol atmospheric pollution as it may arise within its bounds andwhich constitutes a nuisance, a danger to the public health, or animpairment of the public comfort and convenience. The localboard, with the approval of the DPH, may adopt and enforce rulesand regulations. The Department itself, upon the complaint of alocal board adversely affected by atmospheric pollution arising inanother town, after a hearing involving all parties interested, sh~ll

assume joint jurisdiction to regulate and control such pollution.Chapter 111 also gives the DPH extensive general authority to

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[Apr. 1971] HOUSE - NO. 5301 89

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abate nuisances. Section 122 provides that the local board ofhealth shall examine into all nuisances, remove or prevent the sameas may be required. Violations of its regulations are liable to finesup to $1,000. Specific provisions are contained in other sections,such as section 133, to permit private parties to petition the boardof health for abatement of nuisances. Other sections give the boardof health control over nuisance trades (ss. 143-145) and dumpinggrounds (ss. 150-153). Appeal from board action or inaction maybe taken to the Superior Court or to the county commissioners (ss.137-140 and 144). The Superior Court, either before or pending aprosecution for a common nuisance affecting the public health,may enjoin the maintenance of the nuisance until decision by aboard of health.1

Other important provisions give the Department specific controlover air pollution. Section 2B of Chapter 111, for example, isconcerned with air pollution emergencies and provides that theCommissioner of Public Health may, with the approval of theGovernor, declare such an emergency and make it known. Itfurther provides that the Commissioner may formulate, afterhearings, an air pollution emergency plan including restrictions onuses of certain fuels, open burning, and the movement of specifictypes of motor vehicles and such other provisions as it deemsnecessary. Any orders promulgated by said Commissioner shall beenforced by the personnel of the DPH and by state and localpolice.

Furthermore, the Department may pass antipollution regulations,'and the Supreme Judicial Court or the Superior Court, upon theapplication of the Department or any person interested, with theapproval of the Department, may enforce such regulations andrestrain the use and occupation of such premises or such portionthereof as the Department may specify until its regulations arecomplied with (s. 42A) (s. 142A).

Section 142B, under the heading "Metropolitan Air PollutionDistricts", lists the towns belonging in such districts, gives themthe power to regulate and abate pollution problems, and states that

1 G.L. c. 111; s. 130. This section does not empower the superior court to stay or preventa prosecution for causing or maintaining a nuisance, nor to review the action of a localboard of health, since it is authority only for the court to stay or prevent the nuisance.Storev. Heath, 179 Mass. 385, 60 N.E. 975 (1901).

90 HOUSE ---. NO. 5301 [Apr. 197]

nothing in the section is to be construed as relieving any person,corporation, or political subdivision from responsibility or liabilityfor any damages which may occur, or from civil or criminalproceedings arising from their activity, regardless of any action of

.the DPH.Finally, the Department has authority to control and abate

sources of water pollution under jurisdiction of the state or itspolitical subdivisions in the same manner and to the same extentthat it may invoke its powers in· regard to privately owned,operated, or controlled sources of pollution or contamination. Theonly difference is with respect to the remedy involved. If a divisionof the Commonwealth refuses or fails to comply after notice withsuch a rule relative to the pollution or contamination of water, thefacts will be reported by the DPH to the Governor or the PublicHealth Council, who shall investigate· the matter and make suchcompliance order as is deemed appropriate.

Chapter V

POSSIBLE IMPACT OF THEPROPOSED CONSTITUTIONAL AMENDMENT

Introduction

The original bill filed by Representative Robert D. Wetmore(hereinafter referred to either as the Wetmore Bill or House,No.3875) sought to accomplish major changes in the existingprovisions of Article XLIX of the Articles of Amendment to theConstitution of the Commonwealth of Massachusetts as follows:

ARTICLE XLIX of the Articles of Amendment to theConstitution is hereby annulled and the following isadopted in place thereof: - The right of the people toclean air, pure water, freedom from excessive and un­necessary noise, and the natural, scenic, historic, andesthetic qualities of their environment shall not beabridged.

The policy. of the commonwealth shall be to protect,conserve, and improve its natural resources, its scenicbeauty, its historical heritage, its forests, agricultural

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lands and other open spaces, and the amenities of itsurban life. The general court in implementing this policy,shall make adequate provision for such protection, con­servation, and improvement, including but not limited toabatement of air and water pollution and of excessive orunnecessary noise, the protection of agricultural lands,forests, shorelines, natural rivers, wilderness and otheropen spaces, the preservation of historic buildings andhistoric sites, the creation of planned and attractive com­munities, the development and regulation of water re­sources, and the preservation of all forms of wildlife.

The general court shall provide for the acquisition anddedication of lands, structures, and waters which,because of their beauty, wilderness character, or geo­logical, ecological, or historical significance, should bepreserved and administered for the use and enjoyment ofthe people. Properties so dedicated shall not be taken byany authority, public or private, or otherwise disposedof, except by statute enacted by two successive regularsessions of the general court and approved in each ses­sion, in each house, by a two-thirds majority vote.

. It was twice redrafted first on motion of Representative CorneliusF. Kiernan and then by the Committee on Bills in Third Reading.Since the Wetmore Bill is the most extensive of the three andcontains the greatest potential for change of Massachusetts law andpractice, the analysis here begins with a consideration of its pro­visions. The other two versions (hereinafter referred to as theKiernan amendment and the proposed amendment) did not addanything to the Wetmore Bill; rather they serve in seriation, toconfine its scope and potential impact. Consideration of theseproposals is accordingly deferred until after the ramifications of theWetmore Bill are considered. Finally, although the proposal ofRepresentative Francis W. Hatch, Jr., to permit citizen enforcementof the constitutional right ofthe people created by the amendmentwas not a part of the original proposal and did not survive thelegislative process, it is given specific attention because of itsimportance and potential impact.

92 HOUSE - NO. 5301 {Apr. 19~

House, No. 3875 of 1970

The major differences between the existing Article XLIX andthe Wetmore Bill result from the tenor or tone of the latter. Ashas been indicated, Article XLIX accomplishes very little. It simplydeclares that the conservation, development and utilization of theCommonwealth's natural resources are public uses and provides thatthe General Court has the power to take property or propertyrights for the purpose of securing and promoting these public usesupon payment of just compensation. House, No. 3875, by contrast,contains within its three paragraphs far more reaching provisions.

Citizen's Right. The titular declaration and that of the firstparagraph of House, No. 3875 are most dramatic. They declare, inalmost verbatim language, that there is a "right of the people toclean air, pure water, freedom from excessive and unnecessarynoise, and the natural, scenic, historic, and esthetic qualities oftheir environment which shall not be abridged."

For the first time, a "right of the people" to environmentalvalues would be guaranteed by the Massachusetts Constitution.This declaration of a "right" gives rise to varying possible' inter­pretations. The rrrst and most drastic possibility is the creation ofan enforceable right in each and every citizen of the Common­wealth. This interpretation is supported by the most importantconcluding phrase which states that the declared "right...shall notbe abridged." However, several constitutional provisions appearingin language of this type have not been interpreted as creatingenforceable rights in each and every individual citizen. The "right"may simply, be one which is enforceable only by the elected andappointed representatives of the people. Consequently, it is pos­sible the language may simply create a "right" which exists col­lectively but not individually in the people, and which it is theduty of the General Court and the executive branch of the Govern­ment of the Commonwealth to protect. The definitive prognosison citizen enforcement of the "right" which can be predicatedupon the Hatch proposal cannot be projected on the basis of thelanguage of House, No. 3875}

The word "right" as used in the bill might lead to an expansionof the concept of nuisance, both private and public or commonnuisances, to include activity and results not previously considered

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[Apr. 1971) HOUSE - NO. 5301 93

.IX andtter. Ast simply1 of thedes that)ropertyblic uses;ontrast,c>visions.the first~clare, ineople tolecessaryl1ities of

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within those categories. Not only could there bean expansion inthe kinds or types of conduct which have been considered ascapable of giving rise to a nuisance, but there could also be aloosening of the concept of interference to include results notpreviously considered substantial enough to constitute an unreason­able interference with the plaintiffs use and enjoyment of his land.The constitutional recognition of a "right" in the people could alsosubstantially affect the traditional balancing technique utilized bythe courts in determining whether the social utility of the de­fendant's conduct is such as to keep it from being an unreasonableinterference with the plaintiffs use and enjoyment of land. More­over, it could be further argued that any activity contrary to theconstitutionally expressed public· interest in environmental quali.tyconstitutes a public nuisance, whether committed by public orprivate parties. It could even have rendered obsolete the pUblic orcommon nuisance doctrine. In this regard, for the first time, theConstitution would contain a deClared right to environmentalvalues which would stand in juxtaposition to the economic con­siderations generally found persuasive by the courts in traditionalnuisance cases. The provision could have an impact similar to theMichigan statute referred to above in Chapter III.

Declaration of Policy. Paragraph two of the Wetmore Bill con­tains two sentences, the second of which largely reasserts powerspresently possessed by the General Court. Only by interpreting thesecond sentence as imposing affirmative duties upon the GeneralCourt to implement the environmental policy of the act can thisduplication be avoided. This interpretation, however, is not ex­pressly required by the language of the sentence,though it does findsome lingual support in certain of the phrases. In significant part,it depends upon the interpretation accorded to the ftrst sentence ofthe paragraph, to which primary attention accordingly mu~t bedirected.

The first sentence contains an· important policy declarationwhich is somewhat reminiscent of the congressional approach inthe National Environmental Policy Act of 1969. However, thereare marked differences between the scope and language of thepolicy declarations and, most importantly, in the balance of thetwo provisions. The major difference lies in the absence of expressaffirmative duties, either substantive or procedural, placed upon

94 HOUSE - NO. 5301 [Apr. 19'

agencies and officials of the government. This does not mean,however, that the policy declaration is completely ineffectual on'the question of duties. As indicated below, there is a possibilitythat it may create duties by implication.

The full impact of the policy declaration in the first sentence isnot clear. It seems intended, as do all constitutional provisions, toestablish a standard to which all legislation and governmental-action must conform. But there is some doubt as to its scope. Itmay have no effect upon existing legislation. It is important tonote that the language of the bill speaks in terms of protectionconservation and improvement of natural resources, terms whichreasonably can be interpreted as looking toward the future. Courtsmight well interpret the declared policy as not intended to haveretroactive effect. The absence of express language declaring a

, ,

reclamation, as well as enhancement, responsibility -such as thewords "restoring" and "maintaining" which appear in the NationalEnvironmental Policy Act, lends support to this possible con­clusion. Similar support for this interpretation c~n be found in theabsence of any express language placing upon all. Commonwealthagencies and officials express duties to conform their present op­erations and practice to the declared policy, as is present in thefederal statute. Finally, the absence of strong language indicatingthat the declared environmental policy is "of paramount publicconcern", such as appears in the Michigan constitutional amend­ment previously examined, also supports a limited construction of'the scope of the policy declaration.

Even if it is decided that the declared policy has prospeCtive,but not retrospective, application, the provision would still havesubstantial impact. Its effectiveness would hot be mortally im­paired because much of the existing environmental legislation pro­vides for discretionary enforcement by state agencies and officials.It would seem clear that these agencies and officials wo'uld beobligated by the constitutional mandate in exercising their dis­cretion. Moreover, the declared policy of the Commonwealthwould have to receive the attention of the judiciary and thuswould influence the continuing development of decisional law, thatis, the common law of the Commonwealth as interpreted andadministered by the courts. What was said above with respect tothe possible impact of the first paragraph is also true with respect

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to the second's declaration of Commonwealth policy since it wouldhave to include as one of its constituent elements the protection,conservation and improvement of the right of the people, whetherthat right be considered as held collectively or individually.

It will be noted that the ecological assets presented in the policydeclaration are stated in general language which has abstract valuebut which provides very little assistance in determining its appli-­cation to specific, concrete situations. There are some instances,however, where the application of the policy declaration can beseen in possible operation. Suppose, for example, that the PaulRevere House was privately owned and that the owners decided tooperate it as a hotel instead of a museum. The General Courtwould undoubtedly have the power to take the property by emi­nent domain under the existing provisions of Article LXIX as wellas under House, No. 3875. But protection would exist underHouse, No. 3875 even in the absence of legislative action. It wouldseem that the damage threatened to this historic shrine by its useas a hotel would be antithetical to action designed "to protect,conserve, and improve" the Commonwealth's "historic heritage."The public prosecutor would certainly have standing to complainand prevent the proposed transformation and there is some groundfor believing that a private citizen could prevent the municipallicensing of a hotel on the premises. To the extent that the policydeclaration would prevent complete exploitation of historic prop­erty, it would have substantial impact upon private property rightsas they otherwise exist. This point is quite important since pri­vately owned property is not subject to the public trust doctrine..

Legislative Duty. While it is difficult to predict the preciseimpact of the first sentence of the second paragraph, it is evenmore difficult to discern the meaning of the second. The pivotallanguage of the sentence seems to be the portion stating that"[t] he General Court in implementing this policy, shall makeadequate provision for such protection, conservation and improve­ment .... "

The present constitutional amendment - Article XLIX - con­tains no language in any of its provisions on which the existenceof imposed legislative duties could be predicated. On the otherhand, the Wetmore Bill contains wording which singularly is

! !

96 HOUSE - NO. 5301 [Apr. 197'

more demanding. More importantly, when the above cited sentence manis read collectively and in conjunction with the balance of the bill, tainlit is suggestive .of the imposition of affirmative duties upon the miglGeneral Court. stru<

Accent on Conservation. One other major difference between contthe language of the second paragraph of House, No. 3875 and that ignoof Article XLIX as it currently appears deserves mention. The COUlexisting provision speaks in terms of the "development and uti- erty .

.lization" of the Commonwealth's ecological resources as well as VISlO

their "protection,' conservation and improvement." This may re- actiepresent a major change in emphasis. While it is possible to bring thin:"development and utilization" within the term "conservation", it is appehighly doubtful whether the use of the former terminology in 1918 E,envisioned this intent. Rather, it seems more likely that the terms sentt"development and utilization" connoted resource exploitation intelrather than conservation, that is, identification with economic untilrather than ecological values. The change from "conservation, de- consvelopment and utilization" to "protection, conservation and im- validprovement" seems to suggest a reordering of societal priorities. cate

Other Considerations. Significant as are these changes which mint:would have been accomplished by the first two paragraphs of TlHouse, No. 3875, they do not present the full' impact of the seek~

proposal. The third paragraph also contains the possibility of major propimpact. peot:

The first sentence of paragraph three carries forward the affirma- thetive legislative duty thought contained in the second paragraph by the 1its express provision that "[t] he general court shall provide for the Gemacquisition and dedication of lands, structures, and waters which ! publbecause of their beauty, wilderness character, or geological or I of tecological, or historical significance, should be preserved and ad- ~'" trati'ministered for the use and enjoyment of the people." This lan-'. COllIguage could effect major changes. Conceivably, it could impose Tlsupplemental, specific affirmative duties upon the General Court to I pracdedicate real property and interests therein of the type described mus.in the bill to the use and enjoyment of the public. It is possible enfothat a complainant could even argue that existing property not statl.:already dedicated by the General Court, nevertheless, would h~ve Webbeen implicitly dedicated by the adoption of House, No. 3875 and, crett:consequently, cannot be' further alienated or developed in a' anal~

[Apr. 1971] HOUSE '" NO. 5301 97

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manner which would alter its natural o.r existing condition. Cer­tainly, this result is required to the extent that House, No. 3875might be interpreted as imposing a public trust on all lands,structures, and waters which arguably fall within the descriptionscontained in the bill. The trouble with this construction is that itignores the language in the bill which states that" [t] he GeneralCourt shall provide for the acquisition and dedication" of prop­erty. This language seems clearly designed to show that the pro­vision is not self-executing but is directed towards legislativeaction. On balance, it does not seem that the first sentence pf thethird paragraph imposes any public trust obligations, nor does itappear that the provision is self-executing.

Even in the absence of a public trust or "use" interpretation thesentence still could have significant potential effect. It could beinterpreted as protecting specific property of the type describeduntil such time as the General Court had the opportunity toconsider its formal dedication. Even beyond this, it could havevalidity in instances where the General Court has refused to dedi­cate specific property since its refusal might judicially be deter­mined improper.

The second and concluding sentence of paragraph three furtherseeks to modify existing law and practice. It provides that onceproperty has been dedicated to the use and enjoyment of thepeople by the General Court only two extraordinary resolutions ofthe General Court could furtheI" alienate or otherwise dispose ofthe property. By its language, the provision denies to all except theGeneral Court the power to "take" or "otherwise dispose of'public trust property. Property presently held by various agenciesof the government, therefor, would be protected from adminis­trative disposition, even pursuant to statute. Only the GeneralCourt could dispose of public trust property.

The provisions of the Wetmore Bill might also affect currentpractice and procedure with respect to petitions for writ of manda­mus. The writ now lies to protect public trust property and toenforce official duties in situations where a public official has astatutory duty to do specified acts. The question raised by theWetmore Bill is whether it imposes enough ascertainable and con­crete duties to support mandamus petitions by private citizens. Theanalysis presented above indicates that the bill may be interpreted

98 HOUSE - NO. 5'301 [Apr. 197

to impose affirmative duties on both the General Court and on stateagencies and officials alike. The question is whether their "duties"are clear enough to support mandamus petitions.

One other possible effect on maridamus proceedings should benoted. It is interesting to speculate whether the language of the billwould be deemed sufficiently clear to support a citizen's petitionfor writ of mandamus directing the Attorney General of theCommonwealth to abate public or common nuisances. Clearly,under existing law the answer is no, since the mandamus procedurewould be an attempt to accomplish by indirection what could notbe accomplished directly because of the rule that public nuisancesare abateable only by public officials.1 As a result of the languagecontained in House, No. 3875, it would be possible to argue thatthe Attorney General would have an affinnative duty to abate air,water and noise pollution constituting public nuisances interferingwith the right of the people to the ecological assets of the Com­monwealth and this duty would be subject to enforcement by writof mandamus.

The Kiernan Amendment

The Kiernan amendment involved a substantial reVISIOn ofHouse, No. 3875 and produced many changes in the language andpredictable impact of that bill.

Citizens's Right. The first change accomplished by the Kiernanrevision occurs in the first paragraph. While it continued to recog-nize that "[ t] he people shall have the right" to environmentalquality, it did not provide that this right "shall not be abridged."Instead, the sentence was grammatically restructured and this dras­tically changes its probable impact. The deletion of the phrase ;"sh.all not be abridged" removes the demanding nature of the right , ..which appeared in the Wetmore Bill. The change appears significant -rand seems designed to remove the possibility of interpreting the Iprovisions as vesting an enforceable "right" in each and every !

citizen of the Commonwealth. This interpretation seems to flownot only from the deletion itself, but also from the addition of thelast clause to the sentence which provides that "the conservation,

1 Warner v. Town of Taunton, 253 Mass. 116, 148 N.E. 377 (1925).

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[Apr. 1971J HOUSE - NO. 5301 99

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development and utilization of" the ecological values "to protectthe people in said right are hereby declared to be public purposes."The statement that the right of the people is a public purposeseemingly implies that the right is enforceable only by the electedor appointed representatives of the people. Only because of theaddition of the Hatch proposal as the fifth paragraph is this resultavoided. Harry Coltun, Esq., Counsel to the House of Representa­tives, recalls that the change was approved by the Committee onBills in Third Reading not to defeat citizen enforcement of theprovision but to avoid application of the constitutionally declaredright to de minimus situations. Charles Innes, Esquire, Counsel tothe Senate, seemingly agrees, indicating the deletion was madebecause the provision was a mischievous phrase which could leadto too many suits and unnecessary entanglements.

It will also be noted that the concluding phrase of the firstparagraph repeats the development oriented language appearing inthe existing provision of Article XLIX, rather than utilizing theconservation oriented language appearing in House, No. 3875. Assuggested above, this change could be significant since it seems

, designed to equate ecological values with the traditional right toexploit property.

Declaration of Policy. The second major change occurs in thenext paragraph which deletes the declaration of Commonwealthpolicy contained in the original bill. In place thereof is the state­ment that "[t] he General Court shall have the power to protect,conserve, and improve" the ecological assets of the Common­wealth. Obviously, this change removes the threat to existing legis­lation and administrative programs which might have existed underthe original proposal.

The second sentence to paragraph two contains as its introduc­tory phrase the words "[i] n implementing this policy." One mightwell ask what policy, since the declaration of Commonwealthpolicy has been deleted. His difficult to fmd any basis for reading aCommonwealth policy into the first sentence which speaks solelyin terms of the power of the General Court. The most that can besaid about the implementation phrase of the second sentence isthat it simply refers to the policy of the Kiernan amendment itselfin granting more express power to the General Court. The inclu­sion of the term "adequate provision shall be made for such

100 HOUSE NO. 5301 [Apr. : 19'

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protection, conservation and improvement," immediately following, Thdoes not seem to create a basis for the implication of an affirma-tive, duty upon the General Court, as does the second paragraph of pa:House, No. 3875. This is primarily due to the absence of a smconstitutionally declared policy which itself is an affirmative andactive concept. In the absence of some important phrase such as iscontained in the Wetmore Bill, it is difficult to see in the Kiernanrevisions language which would support the finding of affirma-tive duties. Rather, the first two paragraphs of the revision seemaddressed solely to the power of the General Court.

Acquisition of Assets. Further, the provision in the third para,.graph of House, No. 3875, which provided for the acquisition anddedication of real property and interests therein by the GeneralCourt to the use and enjoyment of the people, was substantiallychanged. As a substitute therefor, the floor amendment proposedonly that the General Court shall have the power to take lands.Moreover, it omits any reference to the formal process of "dedica­tion". Thus, the third paragraph of the Kiernan amendment, stand­ing alone, is an eminent domain provision which only duplicatesthe provisions appearing in Article X of the Declaration of Rightsand the existing Article XLIX of the Articles of Amendment tothe Constitution. However, another view is possible when theimpact of the fourth paragraph of the Kiernan amendment whichcontains the DeNormandie proposal is considered. This paragraphbegins with the words, "[p] roperty so dedicated." There is noantecedent to this provision which marks the only place where theconcept "dedication" appears in the Kiernan amendment. In lightof the legislative history provided by House, No. 3875, however, itis possible to interpret the third and fourth paragraphs of theKiernan amendment as referring to the dedication of property inpublic trust. To the extent that the Court is willing to examine thelegislative history of constitutional provisions, such a constructionis likely.

The DeNormandie amendment also changed in one particular theprovisions for legislative control over the subsequent disposition ofproperty dedicated to the use and enjoyment of the public. Therevision requires only one two-thirds majority vote of each branchof the General Court instead of the originally required two succes·sive extraordinary votes of the General Court.

[Apr. 1971 ] HOUSE --_. NO. 5301 101

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T.he Hatch Proposal

The Hatch proposal, which was included as the fifth and lastparagraph of the Kiernan amendment consisted of the followingsingle sentence:

"It shall be the right of any citizen to enforce by legaland equitable action the rights and responsibilities setforth in this amendment."

Since this proposal was included only in the Kiernan amendment,the following analysis is primarily limited to the impact it wouldhave on existing law and practice in the Commonwealth had theKiernan amendment been adopted in its entirety, While undoubt­edly the Hatch proposal was intended to address itself to thestanding issue, its possible impact on the substantive law of (a)nuisance, (b) the public trust doctrine and m·andamus relief, and(c) soverign immunity is examined in the following text.

Standing. The first paragraph of the Kiernan amendment, it willbe recalled, declared that "[ t] he people shall have the right toclean air, pure water, freedom from excessive and unnecessarynoise, .. " By express language, it is the intended purpose of theHatch proposal to give to "any· person" the right, "to enforce bylegal and equitable action" his environmental "rights" as describedin the first paragraph. Thus, the Hatch proposal makes it clear thatthese "rights" exist in the people individually, not simply collec­tively.

Nuisance. By recognizing environmental rights in each and everycitizen of the Commonwealth, the Hatch proposal would eithercreate a new constitutional form of action or substantially changethe nature of nuisance litigation. The personal rights which theplaintiff asserts, be they considered property rights or environ­mental rights, would have been constitutionally enshrined. Theconstitutional recognition of these rights could preclude judicialuse of the traditions balancing test. The proprietary or economicinterest of the defendant and third parties seemingly would notjustify the abrogation of the plaintiffs constitutional rights. Thisresult would be most clearly dictated had the Hatch proposal beenappended to House, No. 3875 which provided that the "right ofthe people shall not be abridged." By giving these rights constitu­tional dignity and clearly placing them in citizens individually, the

inclusion of the Hatch proposal as part of the Kiernan amendmentwould seem to accomplish a like result. In situations where thedefendant's conduct has maximum social and economic utility but,nevertheless, intereferes with another citizen's constitutional right,the courts may be forced to develop a private "taking" theory.Under such a theory, the defendant would be permitted to con­tinue his activities but would be forced to pay reasonable and justcompensation to the plaintiff for injury to his constitutionallyprotected interest.1

In the area of the public nuisance doctrine the Hatch proposalcould have three possible effects. First, it might make all actioncausing air, water and noise pollution a public nuisance since itwould interfere with the "first paragraph" rights of the people.Second, it might permit direct civil suits by private citizens toabate public or common nuisances. Third, it could be read toimpose a duty upon the Attorney General of the Commonwealthto abate all public nuisances. Apparently, no such duty presentlyexists. At least, if such a duty does exist, it is not susceptible toprivate enforcement proceedings by petition for writ of mandamus.2

There is no language in the Hatch proposal which permits theinterpretation that the "right of any person to enforce by legal orequitable action, the rights and responsibilities set forth in [the]amendment" is anything less than absolute. In light of this fact, itcould be argued that a private citizen would have standing underthe Hatch proposal to compel the Attorney General to abatepublic nuisances.

Even though the Hatch proposal could be read as permittingdirect citizen suits to abate public nuisances, its reading to permitcitizens to compel action by the Attorney General is of majorimportance. From a practical point of view, the latter interpreta­tion is singularly the most important effect which the Hatchproposal might have produced. Unlike a plenary trial on the merits,mandamus proceedings are relatively simple. The individual citizenwho could not afford the expensive litigation of a prolongednuisance trial might well find it within his means to seek manda:­mus relief. The private citizen would thus be able to obtain the

102 HOUSE - No. 5301 (Apr.

1 For a discussion of the "private taking" theory, see Boomer v. Atlantic Cement Co., 26N.Y. 2d 219, 257N.E. 20 870 (1970).

2 Warner v. Town ofTaunton, 253 Mass. 116,148 N.E. 377 (1925).

[Apr. 1971] HOUSE - No. 5301 103

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One other point concerning nuisance needs mention. Althoughwe postulate changes in the public or common nuisance doctrinearising under the Hatch provision to permit individual, privatecitizen actions, it is not altogether clear that all standing problemswould be eliminated. Consider the case of a Boston citizen con­cerned about pollution in Cape Cod, or in the Berkshires or someother area of the Commonwealth he either never visits or visitsonly rarely. Would he have the constitutional right to sue to abatethe cause of the pollution? Would the courts still apply some zoneof danger or zone of affected interests? It seems unlikely that theHatch provision would be interpreted as a complete emasculationof the standing doctrine. Rather, it appears that some sort ofimplied' limitation would be set as a requirement for the com­mencement of actions under it.

Public Trust Doctrine and Mandamus Relief. Initially, it shouldbe pointed out that the Hatch proposal does not expand, in anyway, the substantive scope of the public trust doctrine. Whatever

. expansion of the doctrine might arise would result from the lan­guage of the preceding paragraphs of the amendment and is notthe subject of analysis here. It is axiomatic under present principlesthat where property is held in public trust any citizen of theCommonwealth can petition for writ of mandamus to enforcepublic' trust obligations. Thus, standing is not a barrier to suit andis not a question. However, the Hatch proposal may have had someaffect upon mandamus procedures.

The question. arises whether it would have retained or changedthe existing rule requiring exhaustion of administrative remedies.An argument can be made that existing administrative remediescannot be used to handicap or interfere with a citizen's constitu­tional right "to enforce by legal and equitable action the right andresponsibilities set forth in [the] amendment." The Hatch proposalquite clearly states that the citizen himself possesses the right toseek and obtain judicial relief. Nowhere does the proposal containor suggest a duty to use available administrative remedies beforeseeking judicial relief. Instead of recognizing the right or existenceof administrative competency in the frrst instance, the proposalspeaks solely in language of judicial remedies.

104 HOUSE - No. 5301 [Apr. 19'

.Although this interpretation is tenable, it is not made mandatoryby express language in the proposal. It is possible that the court, asa matter of sound judicial administration, might continue to re­quite the exhaustion of administrative remedies as a conditionprecedent to judicial relief. This construction of the proposalwould not create the inconvenience which would otherwise resultfrom the contrary interpretation.

Sovereign Immunity. By way of introductory comment, it mightbe wise to here repeat the well-known purpose of American con­stitutions. Traditionally, American constitutions have incorporatedthe idea that private citizens should enjoy absolute protectionagainst some forms of governmental abuse. To this end, theyinclude duties imposed upon the government to recognize theconstitutionally expressed rights of citizens. To the extent that theHatch proposal may vest an absolute right in each and everycitizen of the Commonwealth "to clean air, pure water, freedomfrom excessive and unnecessary noise .... " these rights could notbe abrogated by the application of the doctrine of sovereign

. immunity. and .municipal liability. Three effects would emanatefrom this resulting inapplicability.

First, when the government either is not providing, or has nottaken appropriate steps to provide, for the constitutionally ex­pressed amenities, a private citizen would always be able to peti­tion for mandamus to compel such governmental activity. Thetheory of the action would be that governmental bodies are notdischarging their constitutional duty to provide clean air, purewater, and freedom from excessive and unnecessary noise for allcitizens of the Commo.nwealth. Second, when. the government,either by action or inaction, is operating pursuant to existingstatute, the question arises whether the Hatch proposal is authorityfor a private litigant's challenge to the constitutionality of thestatute or agency practice. Far from being ~ complete departurefrom present practice, this would simply be a reenunciation of thecourt's interpretative function to oversee official implementation ofgovernmental duties as it now exists in the public trust area andunder the mandamus doctrine.

A third ramification of major importance arises in the situationwhere the gove.rnmental body itself is the source of the pollution,even though the pollution emanates from purely governmental

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functions. It is in this area that the interrelationship between theHatch proposal and the first paragraph of the :Kiernan amendmentcan be seen most dramatically. These two paragraphs read togethermake it clear that the government is not permitted to infringeupon the right of each and every citizen of the Commonwealth to"clean air, pure water, freedom from excessive and unnecessarynoise ... " and that this constitutional prohibition applies withequal force to the activities of government as well as privatecitizens. Indeed, the rationale behind the requirement of popularreferendum for adoption of constitutional amendments is simplythat the constitution is not the creation of government but, rather,is the creation of the citizens themselves, acting in part to obtainprotection from the government which, in the final analysis, theycreate.

The Proposed Constitutional Amendment

As noted in Chapter I, the final version of the proposed amend­ment incorporates the recommendations of the Committee on Billsin Third Reading. The Committee's version involved the deletion ofthe Hatch amendment, a change in the DeNormandie amendment,minor revisions of the first and third paragraphs of the Kiernanamendment and major revisions in the second. An additionalchange was made in the title to the bill in order to make itconform to the provisions of the first paragraph.

The first paragraph of the Kiernan amendment received whatappears to be stylistic changes only. The phrase "clean air, purewater" was changed to "clean air and water." The phrase "conser­vation, development and utilization of the" Commonwealth's eco­logical assets "to protect the people in said right are herebydeclared to be public. purposes" was changed to "and the pro­tectionof the people in their right to the conservation, develop­ment and utilization ... is hereby declared to be a public pur­·pose." This modification of language seems to retain the samesubstantive impact as that of the Kiernan amendment and requiresno elaboration here.

; One substantive change was made in the third paragraph. Theparagraph was expanded expressly to provide both for the "acquisi­tion by purchase or otherwise" (Le., taking) of lands and ease­ments or such other interests therein as are deemed necessary to

accomplish the purposes of the provisions. The further change in 0:the DeNormandie amendment respecting the subsequent disposition consof property taken is somewhat puzzling. The first word of the whicDeNormandie amendment was "[p] roperty." This was changed to prov"[1] ands and easements." The rationale behind this change is not Inreadily apparent. A fIrst reading might suggest that property. and wou:interests other than "lands and easements" can be alienated or! plishotherwise disposed of without the described action of the General. requCourt. However, this interpretation overlooks the provisions of the ' Gemthird paragraph which speak in terms of "lands and easements or seco]such other interests therein." This language would appear to re- themain controlling in stating the purposes behind the revisions of the respfDeNormandie amendment as retained in the Committee's recom- mmlmendations. that

The most dramatic change made by the Committee appears in nallythe second paragraph which was condensed to a single sentence enunreading "[t] he general court shall have the power to enact legisla- not ition necessary or expedient to protect such rights." Not only did it C(continue' the deletion of Commonwealth policy accomplished by havethe Kiernan amendment but it contains no language which can be theinterpreted as imposing affirmative duties either upon the General emerCourt or on agencies and officials of the Commonwealth. More- expaover, it also eliminated the broad description of ecological assets comlsubject to legislative taking powers. Instead, the new second para- lang\.graph of the proposed amendment now provides for power in the siveGeneral Court to enact legislation necessary or expedient to pro- fromtect the "rights" described in the first paragraph. Thus, the "agreed addi1to" Constitutional amendment lacks any express reference to the twO-i

amenities of urban life, shorelines, natural rivers, wilderness and prop'other open spaces, the creation of planned and attractive com-.'.• , and 1

munities, the development and regulation of water resources, and •the preservation of all forms of wildlife. It is not clear whether thedeletion of these expressed terms will have any substantive impacton the scope of the bill in detailing the rights of the people orupon the constitutional power of the General Court to enactlegislation necessary or expedient to protect these rights. It wouldseem that the power of the General Court will not be curtailed bythese deletions but this is not necessarily guaranteed.

106 HOUSE - No. 5301 [Apr. 197]

[Apr. 1971] HOUSE - No. 5301 107

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On balance, the Committee's reVISIon of paragraph two simplyconsists of a delegation of legislative power to the General Courtwhich it undoubtedly already possesses under existing constitutionalprovisions.

In summary, the final version of the proposed amendmentwould make only two changes in existing law. The fITst is accom­plished by the fourth paragraph which retained the DeNormandierequirement of a two-thirds majority vote of each branch of theGeneral Court for the disposition of lands held in public trust. Thesecond is dependent upon the impact of the recognized "right" ofthe people in the first paragraph. What has been said above withrespect to the discussion of the term "right" is relevant in deter­mining the impact of this provision. However, it should be notedthat the elimination of the phrase "shall not be abridged", origi­nally appearing in House, No. 3875, could have the effect ofenunciating the right as one held by the people collectively andnot individually.

Consequently, the proposed constitutional amendment wouldhave very little impact on the present state of law or practice inthe Commonwealth, in contrast with developments that wouldemerge under House, No. 3875. Its effect is limited to a possibleexpansion of the nuisance doctrines, both private and public orcommon. It seems clear that the proposed amendment contains nolanguage imposing any duties which could be subject to an expan­sive interpretation or application of mandamus procedures. Apartfrom the possible expansion of the nuisance doctrines and theadditional protection afforded public trust lands by the requiredtwo-thirds majority vote of each branch of the General Court, theproposed amendment appears to offer little change in existing lawand practice.