September 27, 2021

Volume XI, Number 270

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September 24, 2021

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Judicial Deference is Alive and Well in the Commonwealth of Massachusetts

For most of my legal career people have been predicting an end to the doctrine of judicial deference that has, since the early 1980s, been the law in Federal Courts, and in Massachusetts.  That brings me to the Supreme Judicial Court's decision Friday upholding the Massachusetts Energy Facilities Siting Board's approval of a new electricity transmission line under a railroad right of way passing through the Town of Sudbury.

The Town and other opponents appealed the approval, preferring no additional transmission at all, or at least an alternative route.  The Commonwealth's highest court said its job wasn't to substitute its judgments for those of the Legislature or the Executive Branch, only to prevent "patently wrong, unreasonable, arbitrary, whimsical, or capricious" government actions.

The Sudbury project's opponents' lawyers had to know all of this going in.  If so, they had to be hoping against hope that the Court would deviate from its precedential course, kind of like that last turn at the roulette wheel.  Perhaps this renewed certainty about what courts will and won't do will refocus attention on the branches of our government that make the laws and implement them. 

The board's interpretation of its ‘statutory mandate will be disturbed only if the interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.’” Brockton Power Co., supra at 219 , quoting Box Pond Ass'n, 435 Mass. at 416 . As for [*8] the application of facts, “[o]ur ‘review does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion as [the siting board], but only “whether a contrary conclusion is not merely a possible but a necessary inference.”’” Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663 , 690 , 932 N.E.2d 787 (2010) (Alliance II),

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 179
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About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

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