By Greg D. Peterson, Esq.
One of the icons of the early Earth Days was the Pogo
poster: “We have met the enemy and he is us.” Forty years on, the time
has come to face frankly whether we have moved from environmental
renaissance to a baroque, self-defeating era of regulation. The
question matters, not just because technological innovation and economic
growth have historically been the best environmental protection
programs, but also because there is increasing evidence that existing
and proposed regulations and programs block investment in environmental
Now, I’m old enough to remember a time when rivers ran
orange and black with industrial pollution (you don’t forget such
sights), when passenger cars ran on leaded gas, got maybe 10 mpg, and
we had the smog to prove it, developers filled in wetlands and built in
floodplains with the predictable results, and raw sewage was regularly
dumped into Boston Harbor. I have zero interest in going back.
Even before the Great Recession took hold in the
summer of 2008, however, Massachusetts had a well-earned reputation as a
tough place to get a project done. Even relatively modest projects
here face multiple, overlapping layers of local, regional, state and
federal impact reviews and permitting approvals, above and beyond
traditional zoning and subdivision approval, and of course years of
appeals if and when permits and approvals finally issue.
Worse, projects located in areas that have public
transit or are close to shopping and employment, or that propose more
density (and thus more energy efficiency), appear to garner more
entrenched opposition and face stricter review by officials intimidated
by self-appointed (and often economically or aesthetically
self-interested) protectors of the environment.
The upshot: smart growth projects and environmental
improvement projects do not happen. Examples? The shameful roadblocks
raised by politicians of all political stripes to Cape Wind (which I
once had to explain to gobsmacked Sierra Club members in Portland,
Oregon, where wind turbines generating 2,000 megawatts provide a
dramatic approach to the Columbia Gorge National Scenic Area). The
10-year-and-still-unfinished process for North Point, possibly the
smartest-growth project on the drawing boards in North America,
adjacent to two rapid transit stations, held up in the Supreme Judicial
Court alone for nearly four years. And this is the tip of the
iceberg. Countless land-based wind energy projects, community housing
developments, pubic school and public library projects, and even solar
energy projects which theoretically have the protection of M.G.L.
c.40A, §3, have been held up or derailed by one regulatory “gotcha” or
Yet as the Great Recession bore down and unemployment
skyrocketed, the initial reaction by Massachusetts and federal
regulators and the environmental community was to move forward with new
programs and new regulations. Building on the low-impact development
stormwater policy, DEP proposed massive on-site stormwater management
retrofits for existing businesses. USEPA is methodically moving
forward with indirect stormwater management requirements imposed
through local communities, starting on the North Shore. The creation of
the Department of Transportation subjected abutters along the full
length of the Massachusetts Turnpike to the jurisdiction of District
Highway Engineers for highway access permits and off-site
transportation improvement costs. DEP is still considering revised
guidelines for potential indoor air impacts from 21E releases, focusing
on at best marginal public health improvements at the expense of
Next, Massachusetts tied itself to the International
Building Code, as it is updated from time to time, putting business
here on an escalator of energy efficiency requirements that may or may
not yield cost savings, use reductions, or enhanced competitiveness,
and likely will be sideways of some historic preservation mandates.
Massachusetts policymakers are considering requiring building energy
efficiencies 20% greater than the then-effective Building Code, which
may not even be technically feasible, ignoring the fact that most
energy use in buildings is by tenants not landlords and creating severe
budgeting and planning challenges.
Massachusetts also appears determined, at the
insistence of activists, to address greenhouse gas emissions at the
State level on a project-by-project basis (as though that will either
make us more competitive or have a measurable impact on global climate
change). The Chief Justice of the SJC recently suggested in oral
argument that the chapter 91 license needed to land the power cord from
Cape Wind should perhaps have included review of the full project,
notwithstanding its location in federal waters. And when State
officials asked for ideas to address climate change, activists
seriously proposed that adding buffer zones around vernal pools would
do the trick.
Just to make sure the voters aren’t denied their own opportunity to
mire the Commonwealth, one set of activists has brought us the chance
to repeal chapter 40B at the polls in November, while another group has
placed on the November ballot a proposal to kill virtually any biomass
energy facility in Massachusetts larger than a woodstove.
Predictably, merely making such proposals has by itself sown the
uncertainty so deadly to investment.
Some day the Great Recession will end. The question
for Massachusetts business, universities, policymakers,
environmentalists, workers, the unemployed and, ultimately, voters, is
whether we will choose to follow it, or deepen it, with a “Green
Greg D. Peterson
is an environmental and real estate partner at Tarlow, Breed, Hart
& Rodgers, P.C. in Boston, a Past President of the Real Estate Bar
Association for Massachusetts, and a principal drafter of Chapters 40R
and 40S and the Expedited Permitting Act.
A version of this article appeared in Banker & Tradesman Commercial Real Estate Monthly on March 29, 2010. Please click here to view the published article (PDF).