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Bar Journal - Fall 2007

State Preemption of Environmental Regulation

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Municipalities, now more than ever, are challenged to respond to environmental impacts in their communities. Private developers, businesses, and local residents are increasingly lined up for or against proposed projects, decrying the high stakes of action or inaction. Too often, the debate is framed as a struggle between economic development and the quality of our environment. It is certain that municipal governments must grapple with the environmental consequences of growth.

     

As development pressure on local governments has increased, the state’s role in environmental regulation has also expanded. In a series of decisions issued by the state Supreme Court over the past several years, the Court has limited the municipal role in regulating the control of groundwater and who may seek recovery for its contamination; the expansion of a lawfully permitted solid waste landfill; and the emission of toxic air pollutants by local facilities. Those decisions, in turn, have led to new legislation designed to preserve a continuing role for municipalities in environmental siting and permitting decisions.

     

This article considers the impact of four decisions — North Country Environmental Services v. Town of Bethlehem1, BioEnergy v. Town of Hopkinton,2 In re Appeal of the Town of Nottingham, et al.3 and State v. City of Dover, et al.,4 — on the future role of municipalities in regulating local impacts to solid waste disposal, emissions of toxic air pollutants, and control of groundwater resources. It also discusses how the legislature has responded to these decisions and to the larger issue of municipal participation in the state environmental regulatory process.

     

While the Supreme Court has now squarely upheld the preemptive effect of the state’s regulatory schemes for groundwater, solid waste and air pollution control, there remains an important, if not fully explored, role for municipalities in local environmental regulation.

 

Principles of Federal and State Preemption

Federal preemption has its roots in Article VI, cl. 2 of the U.S. Constitution which provides that the Constitution and laws of the United States are the supreme law of the land and shall be binding on the states.5  Whenever the federal government possesses the authority to regulate a given area, Congress may exercise this authority so as to exclude states and local governments from asserting concurrent jurisdiction over the same subject matter.6 

     

Preemption may occur in several ways. The most obvious is where Congress expressly states that it is preempting state and local authority.7 Alternatively, state and local law are preempted where a statute or regulation directly conflicts with federal law. For example, compliance with both federal and local regulations may in some circumstances be impossible,8 or state and local law may impede the “execution of the full purposes and objectives of Congress.”9  Even absent such explicit preemption, Congress’ intent to supersede state and local law may be found from “a scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.”10

     

State preemption of local regulation, likewise, is not a recent development. New Hampshire has long honored the principle of law that local governments are political subdivisions of the state and exercise their authority at the pleasure of the state.11  Even where a municipality has express authority to legislate in a field also occupied by the state, it may not do so in derogation of the state’s powers.12  When a state and a municipality are charged with cooperating with one another and formulating policy, the municipality’s participation must be in furtherance, not in derogation of the state’s policy.13

     

State preemption of municipal ordinances may be express or implied. Express preemption occurs when the legislature adopts a statute explicitly prohibiting local regulation. For example, the state’s pesticide control act, RSA 430, contains a provision entitled “Preemption of Local Regulation” which states in part:

This [statute regulating pesticides] is of statewide concern and occupies the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation.14

 Like federal preemption, state preemption may also be implied. Implied preemption occurs when the state has established a comprehensive statutory scheme demonstrating the intent of the state to regulate an activity exclusively.15  Implied preemption also occurs when there is an actual conflict between state and local regulation. A conflict exists when a municipal ordinance permits that which the state law prohibits or vice versa.16  Lastly, there may be implied preemption where the municipal ordinance frustrates the purpose of the state statute.17

     

Frustration of a state purpose requires more than a mere conflict or inconsistency. For example, a municipal ordinance which specifies a minimum lot size for development exceeding the state requirement for septic approval may be inconsistent, but it does not necessarily frustrate the state policy to ensure adequate acreage for septic installation. (See Doyle v. Town of Gilmanton, 2006-797, July 19, 2007.) On the other hand, a municipal ban on the sale of gasoline containing MtBE within the community may frustrate the state’s policy allowing the use of MtBE to reduce air emissions from vehicles.

 

Early Cases of Preemption of Local Environmental

Regulation

New Hampshire’s law on state preemption of environmental regulation is relatively recent given the emergence of modern environmental regulation in the 1970’s. The first decisions examining the scope of state preemption of local environmental regulation under modern state environmental statutes appeared in the early 1980’s in connection with attempts to locate hazardous waste treatment facilities in Hooksett and Merrimack.18   In Stablex v. Town of Hooksett19 and Applied Chemical Technology, Inc. v. Town of Merrimack,20 the Court rebuffed local efforts to utilize zoning regulation to preclude the siting of hazardous waste treatment facilities.

     

In Stablex, the Town of Hooksett claimed that municipalities in New Hampshire have long-standing powers of home rule enabling them to enact zoning ordinances and regulations for the protection of the health, safety and welfare of their citizens, including for the disposal of wastes, and that the state law at issue, the Hazardous Waste Management Act21, had not preempted these powers.22  In furtherance of its position, Hooksett had enacted an ordinance prohibiting the use of any land in the town for receiving, processing or disposing of hazardous waste, except by a prior affirmative vote of town residents at an annual or special town meeting.23 

     

The Court rejected Hooksett’s argument.24  It found that the state’s Hazardous Waste Management Act arose from the legislature’s serious concerns over the absence of a comprehensive statewide program to deal with hazardous wastes and that unlike solid waste disposal, with which every municipality must deal, hazardous wastes were not produced in most communities.25 The decision did leave open local regulation on such matters as traffic and roads, landscaping and building specifications, signage, garbage removal and other local matters, provided that the regulations were “administered in good faith and without exclusionary effect.”26

     

Later, in Applied Chemical Technology, Inc.(“ACT”) v. Town of Merrimack, the Town and Anheuser-Busch, an intervenor in the case, tried to limit the application of Stablex by suggesting that the state regulatory process for hazardous waste facilities failed to consider local economic interests, and that local regulation should be allowed in order to protect those interests.27  No such limitation of Stablex, however, was forthcoming. Rather than preclude local interests, the Court found that specific provisions of the Hazardous Waste Management Act required consideration of those interests.28  The Court held that the provisions of RSA 147-C, authorizing the establishment of a local review committee, and the requirement of local public hearings on a draft facility siting permit, warranted affirmation of the broad principle of preemption enunciated in Stablex.

     

Thus, after Stablex and ACT, the only local actions that would not be construed to have the intent or the effect of frustrating that comprehensive regulatory scheme are those local regulations which are non-exclusionary and which could be applied in good faith to any industrial facility in the community.29

     

The remediation and closure of a contaminated privately-owned solid waste landfill in Pelham, N.H. in the mid-1990’s provided the Court with its first opportunity to consider the preemptive effect of the state’s Solid Waste Management Act, RSA 149-M.

     

Unlike the Hazardous Waste Management Act, the state’s solid waste law provides municipalities with both responsibility and authority over several aspects of solid waste management. For example, municipalities are required to provide access to an approved disposal facility,30 adopt a solid waste plan for their community,31 and may seek injunctive relief against violators upon notice to the attorney general.32 Perhaps most significant, was the statute’s provision at that time that a state permit for a solid waste facility was not effective “until the applicant submits evidence of compliance with all lawful local ordinances, codes and regulations that are consistent with a district plan.”33

     

In Town of Pelham v. Browning-Ferris Industries, Inc.,34 Pelham sought to enjoin the state and Browning-Ferris Industries, Inc. (BFI) from closing an old landfill without first complying with local zoning and site plan regu lations.35  Pelham was particularly concerned with the state’s approval of a closure design for the facility which included the use of “biosolids” and chipped tires as distinct layers of the new landfill cap.36 

     

Although the Court readily acknowledged the extensive local involvement in solid waste management provided by the legislature in RSA 149-M, it found no such local role in the facility closure process.37   Thus, the Court held that landfill closures were under the exclusive control of the state.38  The preemptive effect of RSA 149-M on other important aspects of landfill management such as siting and expansion, however, was left open by the BFI court.

 

Landfill Siting and Expansion: NCES v. Town of Bethlehem      

In 1976, the owner of an 87-acre parcel of land in the Town of Bethlehem received a variance from the town and approval from the State of New Hampshire to construct a solid waste landfill on a four-acre portion of the site.39  Several years later, in 1983, the landfill expanded to 10 acres and, in 1985, the town granted a special exception to increase the landfill to a total of 51 acres.40  Ever since, the landfill has been the source of controversy and much litigation.

     

North Country Environmental Services (“NCES”) and its predecessors sought permits from the state to expand the landfill’s operations in stages within the total 51 acres. Construction of Stage I, approved by the state in 1987, comprised 18 of the 51 acres. Stage II, approved in 1989, comprised seven acres to be built out in two phases.41

     

The first case to reach the New Hampshire Supreme Court concerned Bethlehem’s efforts to prevent the construction of the second phase of Stage II.42  Relying upon two amendments to its zoning ordinance adopted in 1987 and 1992 which, respectively, prohibited the existence of any private solid waste facility in any town district and prevented the location or expansion of a solid waste facility unless the town owned the facility, the town tried to block further expansion of the landfill.43

     

The Supreme Court rejected the Town’s arguments and upheld the ruling of the trial court that neither zoning amendment applied to NCES’ operations on the 51 acres because these operations were pre-existing, permitted uses on the site at the time of the 1987 zoning amendment.44  Although NCES argued that both the 1987 and 1992 zoning amendments were preempted by RSA 149-M, the state’s Solid Waste Management Act, the Court declined to decide that issue because it concurred with the trial court finding that the zoning amendments did not apply to NCES’s operations and that neither party had appealed that finding.45 While NCES I was being argued before the courts, NCES took an action which resulted in new litigation that ultimately placed the issue of preemption before the Supreme Court. NCES applied for and obtained a state permit to construct Stage III on land within the 51 acres, a permit to construct and operate a landfill gas facility on the 51 acres, and, subsequently, a permit to construct Stage IV on land mostly outside of the 51 acres.46

     

The town notified NCES that it could not undertake the Stage III expansion and the construction of the landfill gas facility without site plan approval and building permits issued by the town. The town also further amended its zoning laws to limit the height of solid waste facilities to no more than 95 feet from the natural contour of the land. In response, NCES filed a declaratory judgment action seeking a ruling from the Superior Court that the town’s site plan review regulations and height restriction were preempted by RSA 149-M.47

     

In North Country Environmental Services v. Town of Bethlehem, 150 N.H. 606 (2004), (“NCES II”), the Supreme Court reached the preemption issue it had earlier declined to review.48  First, after examining the statute and the legislature’s purpose in “protecting human health . . . and preserving the natural environment . . .” through “proper and integrated solid waste management”, the Court found that RSA 149-M did, in fact, constitute a “comprehensive and detailed regulatory scheme.”49 

     

Because of the provision of RSA 149-M that specifically required local approval under all applicable lawful ordinances, however, the Court’s inquiry into the preemptive effect of the statute did not end with its determination of comprehensiveness. Like the Court in Town of Pelham v. BFI, the Court found that a plain reading of the statute is that RSA 149-M does not preempt lawful local regulations that are consistent with state law.50         

     

Applying this principle here, the Court found that the solid waste law did not automatically preempt the 1992 zoning ordinance and the portion of the landfill that lay outside the originally permitted 51 acres.51  It was not inconsistent with the requirement of RSA 149-M to provide access to a solid waste facility for the town to determine that it wished to restrict development of the landfill beyond the originally approved 51 acres. Thus, the town could prevent expansion of Stage IV which lies beyond the 51 acres. Here, the Court noted that once the 51 acres was fully built-out, the town had the option of granting a further expansion, or providing its residents with access to another approved facility for waste disposal.52 

         

 Although NCES II stands for the proposition that RSA 149-M preempts most local regulation of the siting and permitting of solid waste landfills, as BFI v. Town of Pelham established state preemption over landfill closure, the Court has also acknowledged that the statute allows municipalities the option to limit expansion of existing solid waste facilities within their communities if accomplished through lawful ordinances consistent with the goals of the state law.

 

Recent Landfill Legislation

Continuing concern over the siting of solid waste facilities, including a proposal by the Concord Regional Solid Waste Recovery Cooperative to build a new landfill along the Merrimack River in Canterbury,53 led the legislature to adopt far more restrictive siting requirements along New Hampshire’s rivers. SB 71, signed into law by Governor Lynch on July 13, 2007, prevents new solid waste landfills from being permitted within the corridor of a designated river, or less than 100 feet from the landward extent of the 500 year flood plain, whichever distance is greater.54  The director of the Concord Cooperative saw this measure as effectively killing the development of its proposed landfill in Canterbury.55

     

In the same session, the legislature amended the state’s land use planning statute, RSA 674, to provide that a publicly-owned landfill situated in another municipality is to be subject to local land use regulations in the same manner as a privately-owned landfill.56  This legislation emanated from the concern of the Town of Newport over the future of the ash landfill located there, which was developed by the NH-VT Solid Waste Project, but never fully built-out.

 

Emission of Toxic Air Pollutants:  BioEnergy v. Town of Hopkinton

The debate over the safety of incineration and control of toxic air emissions most recently has been played out in Hopkinton, where the Bio Energy, LLC waste-to-energy facility sought to burn wood chips derived from construction and demolition debris (“C&D waste”). While the debate over incineration of C&D waste in New Hampshire has been rendered moot — at least for the present time — by the adoption of a permanent ban on its incineration,57 the BioEnergy case has important ramifications for local control of air pollution.

     

Beginning in 1983, BioEnergy, LLC (“BioEnergy”) operated a wood- cogeneration facility in Hopkinton, which involved the burning of wood chips in order to generate steam and electricity.58  In December, 2001, BioEnergy applied for and received from the Town a building permit for a new wood storage area.  The application made clear that the new area was intended to facilitate combustion of wood chips derived from C&D waste.59  BioEnergy soon after also received a state permit to burn up to 100 percent of wood chips derived from C&D waste.60 

     

In response to a petition filed by local residents opposing the burning of C&D waste, the Board of Selectmen determined that the 1983 variance issued for the combustion of wood chips did not include burning of C&D waste and issued a cease and desist order.61  

     

In a declaratory judgment action in Superior Court against the town, and later on appeal before the Supreme Court, the town relied upon several provisions of the state’s air pollution control statute, RSA 125-C, and administrative rules to argue against state preemption of local control of BioEnergy’s emissions. Specifically, the town argued that three provisions established the town’s role in regulating local air emissions: (i) the provision for civil enforcement for a violation of “any rule” adopted under RSA 125-C, includes a rule adopted by a municipality; (ii) the language of the state air statute requiring the state Commissioner’s consultation with cities and town affecting air quality and its requirement for consultation with municipalities over air pollution control and abatement programs supported the validity of local regulation; and (iii) the administrative rule requirement that facilities obtain local approvals prior to obtaining “pre-construction” permits.62

     

Neither the trial court nor the Supreme Court agreed that the legislature had given cities and towns concurrent authority to regulate air pollution. As explained by Judge Fitzgerald in his order, cited with approval by the Supreme Court:         

Although the statute [RSA 125-C] does contain some language indicating some degree of local involvement in creating air standards, such language is derived only through inference and indicates a minimal role, at most, for municipalities. Thus, to require BioEnergy to apply for a new variance in order to burn C&D debris, when BioEnergy has already been granted a Title V [permit] from NHDES to burn such debris would amount to granting the town an impermissible veto power over the NHDES Title V program and frustrate its purpose.63

As in its prior decisions in Stablex, Pelham v. BFI, and NCES II, the Supreme Court reaffirmed the authority of municipalities to address zoning-related impacts in a non-discriminatory manner through zoning.64  Thus, after BioEnergy, the state’s ability to regulate air pollution was placed on the same footing as solid and hazardous waste and the municipal role in regulating emissions under state law is at most consultative.

 

C&D Waste Moratorium

BioEnergy’s proposal to burn wood chips derived from C&D waste raised local concerns over emissions of lead, mercury and other toxic pollutants associated with construction and demolition debris.65  The controversy over combustion of wood derived from C&D waste, however, quickly became a statewide concern when proposals came forward to convert the old TIMCO wood burning facility in Barnstead, N.H. to burn woodchips derived from C&D waste66 and to construct a new 45-megawatt generating facility in Hinsdale, N.H. that would burn up to 50 percent of C&D-derived woodchips.67 

     

The legislature soon responded to what was now being portrayed as the potential for New Hampshire to attract C&D waste from all over New England.68  A temporary ban on the combustion on C&D materials, including woodchips derived from C&D waste, was adopted in 2006.69  Earlier this year, with the full support of Governor Lynch and DES Commissioner Thomas Burack, the ban was made permanent.70

 

A Municipal Role in Air Pollution Regulation?

The recent proposals by BioEnergy, GenPower and others to re-develop existing plants or to construct new wood-burning generating facilities pointed out the limited role of municipalities in the control of air pollution, including toxic pollutants such as lead and mercury. Given the Court’s decision in the BioEnergy case, allowing municipalities to impose more stringent emissions limitations than the state requires legislative action. Maine’s air pollution statute could serve as a model in this regard. 38 M.R.S.A. §597 specifically authorizes Maine’s municipalities to study air pollution and to adopt local ordinances not less stringent that the state’s air regulations.71 This statute has served as authority for the Town of Jay’s general air pollution ordinance which, among other matters, requires emitting facilities to obtain local air pollution control permits,72 and for the Air Toxics Ordinance of the City of Biddeford, Maine, which controls the emissions of air toxics of major emitters located within the city in the absence of a statewide toxics program.73 

     

Without such a legislative change, New Hampshire municipalities are confined under RSA 125-C to a minimal role in consulting with the Commissioner of DES in air pollution matters74 and participating in the state permitting process as authorized under administrative rules.75 

     

The Court’s decision in BioEnergy, however, does nothing to disturb the right of a municipality or any individual to challenge the permitting, modification and emissions of a facility, like BioEnergy, that requires a federal air pollution permit. The “citizen suit” provision of the federal Clean Air Act continues to provide municipalities with an important tool in ensuring adherence to federal emissions standards.76 

 

Who Controls the Groundwater? In Re Appeal of Nottingham

Unlike NCES II and BioEnergy, the issue in Appeal of the Town of Nottingham, et al.77 was not one explicitly of state preemption of regulation of groundwater. Rather, the principal issue was whether or not the Department of Environmental Services had considered the impact of a significant proposed groundwater withdrawal on the interests of present and future generations in accordance with the so-called “public trust doctrine,” which holds in trust for public use certain water resources.78  Nonetheless, the case has important implications concerning the criteria that will be used by the state in the future for allowing significant groundwater withdrawals and the impact of those withdrawals on   municipal water resources.

     

In 2001, USA Springs, Inc. filed an application with DES for a large groundwater withdrawal permit, proposing to withdraw up to 439,000 gallons of water per day from spring and bedrock wells located in Nottingham, N.H.79  DES initially denied the application based upon the company’s failure to demonstrate that all regulatory requirements for the permit would be satisfied.80  Following re-application by the company, and further public meetings, DES granted the application and issued the groundwater permit.81 

     

Of the dozen issues raised by the Town of Nottingham in its appeal of the permit granted by DES, the more significant issues concerned DES’ obligation to consider the public trust doctrine in allowing a large groundwater withdrawal and whether the applicant was required to demonstrate “need” in order to obtain a withdrawal permit.82  Both of these issues are crucial to public availability of groundwater resources.

    

1.   The Public Trust Doctrine

Nottingham argued that the public trust doctrine expressed in RSA 481:1 applies to large groundwater withdrawals governed by RSA 485-C and that DES had an affirmative obligation to consider public trust issues in evaluating USA Springs’ permit application.83 

     

RSA 481:1 is an explicit directive by the legislature for state agencies to conserve, protect and manage the state’s water resources:

   The general court finds that an adequate supply of water is indispensable to the health, welfare and safety of the people of the state and is essential to the balance of the natural environment of the state. Further, the water resources of the state are subject to an ever-increasing demand for new and competing uses. The general court declares and determines that the water of New Hampshire whether located above or below ground constitutes a limited and, therefore, precious and invaluable public resource which should be protected, conserved and managed in the interest of present and future generations. . . . All levels of government within the state, all departments, agencies, boards and commissions, and all other entities, public or private, having authority over the use, disposition or diversion of water resources, or over the use of the land overlying, or adjacent to, the water resources of the state, shall comply with this policy and with the state’s comprehensive plan and program for water resources management and protection.

In light of this language, Nottingham urged that the regulatory program adopted under RSA 485-C was merely the minimum requirement for obtaining a large groundwater withdrawal permit.84

     

The Court, however, disagreed. Relying upon principles of statutory construction, it determined that the more specific provisions of RSA 485-C controlled over the more general provisions of RSA 481:1 and that the latter statute did not incorporate the former by reference.85 

     

The Court’s analysis of the interaction of the two statutes, RSA 481 and RSA 485-C, leaves many lingering questions. Is the public trust doctrine, to the extent that it exists, now limited to the flow of rivers and streams through dams?  If DES is not required to implement the policy prescribed by the legislature, then is any other agency?  Is the conservation of groundwater not a part of the state’s comprehensive plan for management of water resources?

     

The Attorney General, who filed an amicus brief in Nottingham, agreed that the state holds groundwater, like surface waters, in public trust.86  The state argued that no statute in New Hampshire has abrogated the common law rule of reasonable use of water and neither RSA 481:1 nor the common law in New Hampshire imposed any duty under the “public trust doctrine” on DES in its permitting of large groundwater withdrawals.

     

The State dismissed the explicit directive within RSA 481:1 for state agencies to “comply” with the stewardship policy by characterizing the statute as “an ambitious general public policy goal.”87  If any water user unreasonably impacts the public or other water users, the Attorney General believes that the enforcement authority lies in that office and not in state agencies. 88  DES, in the view of the Attorney General, lacks the authority to adjudicate property rights, including public trust water rights.89

 

2.   Determining Need

The Town of Nottingham and other appellants also challenged the issuance of the permit based on USA Springs’ failure to demonstrate need for the withdrawal.90 

     

The groundwater permitting statute itself directed DES to adopt rules governing new groundwater withdrawals, including “[r]equirements relative to conservation management plans which demonstrate the need for the proposed withdrawals.”91  DES’ administrative rules, in turn, provide that “[t]he applicant shall prepare a water conservation management plan and description of need to demonstrate the efficient use of, and need for, the proposed withdrawal in the permit application. . . .”92   DES believed that “need” was a term of art to describe efficiency.93   Nottingham contended that “need” and “efficient use” were distinct concepts, both of which must be satisfied.94 

           

In resolving this issue, the Court again relied upon principles of statutory construction. After finding that the legislature failed to define “need” in the groundwater statute, the Court gave the term “need” its plain and ordinary meaning, a want of something that is desirable or useful,95 and determined that DES reasonably found that the proposed withdrawal was desirable or useful in light of the description of the market for bottled water that was proffered by USA Springs.96  The Court found no support for the contention that the applicant must demonstrate that the requested extraction level was required by USA Springs’ business plan or was environmentally sustainable.97 

 

While the Court professed its adherence to the goal of applying statutes in light of the legislature’s intent and in light of the policy it sought to advance,98 there is a real question whether it satisfied that goal here. It may well be desirable to withdraw large quantities of groundwater from an area to suit a particular private project. Yet, without any reliable demonstration that a withdrawal will not jeopardize the availability of groundwater from that same area, the legislature’s directive for stewardship and protection of water resources can hardly be well served. 

 

The Legislative Response to Nottingham — A New Municipal Role

During and after the USA Springs’ permitting process and subsequent appeals, the legislature enacted several changes to the groundwater protection statute and to DES’ statutory duties.

     

In 2005, the legislature amended the groundwater statute to require DES to provide copies of its correspondence with withdrawal applicants to each municipality and supplier of water within the anticipated zone of contribution to the proposed well; required that upon the request of any municipality within the anticipated zone of contribution, DES hold a public hearing on a large groundwater withdrawal application before a final decision; and established specific criteria for how DES is to establish need for a proposed large groundwater withdrawal.99 

     

The following year, the legislature passed SB 386, which addressed further issues that arose during the Nottingham case. This legislation specifically charged DES with administering the public trust interests in groundwater in discharging its duties and in a manner that prevents any unmitigated adverse impact to groundwater resources; adds a discretionary appeal to the Superior Court from the Water Resources Council’s decision on a large groundwater withdrawal permit application; and creates intervenor status for municipalities impacted by a large groundwater withdrawal.100

     

Significantly, under this legislation, DES’s decision on a large groundwater withdrawal application “shall be based on a demonstrated need for the withdrawal” after a review of, among other factors, (i) a description of the need; (ii) a conservation management plan; (iii) a water resource and use inventory; (iv) the effects of the withdrawal on water resources and uses; and (v) completion of the withdrawal testing program.101

     

Most recently, the legislature clarified that groundwater wells intended to replace or back-up a permitted well must be separately approved by DES prior to withdrawal of more than 57,600 gallons of groundwater in any 24-hour period.102 

     

These changes, taken together, will insure that municipalities are informed of applications for large groundwater withdrawals; that their concerns will be raised at public hearings; and they will have the opportunity to establish a full factual record on appeal of the administrative review. How DES, the Attorney General and the courts respond to the legislature’s new delegation of public trust responsibility in water policy remain to be seen.

 

Cleaning Up Contaminated Ground-water: State v. City of Dover, et al.

In the late summer and fall of 2003, more than 50 lawsuits were filed on behalf of 145 separate plaintiffs in 16 states across the country seeking hundreds of millions of dollars in damages as a result of contamination of drinking water supplies by the gasoline additive methyl tertiary butyl ether (“MtBE”).103

     

MtBE is a chemical compound, consisting of methanol and isobutylene, designed to increase the oxygen content of gasoline, enabling the fuel to burn cleaner and thus reduce the emission of volatile organic compounds (VOCs). VOCs contribute to the formation of ground-level ozone, which affects air quality and contributes to respiratory diseases such as asthma. In the early 1990’s, New Hampshire and other states decided to participate in a federal program to assist in regional efforts to reduce harmful air pollutants such as VOCs. This resulted in the importation into the state beginning in about 1994 of so-called “reformulated gasoline” containing MtBE.

     

MtBE is also highly soluble and travels faster and farther in water than other gasoline components.104  As a result, when MtBE is released into the environment, it can infiltrate into the groundwater and contaminate drinking wells.105  MtBE is an animal carcinogen that has been linked to many potential human health problems. Id.

     

In September, 2003, the State of New Hampshire filed suit against 34 MtBE manufacturers, designers and refiners, alleging that MtBE had polluted the state’s ground and surface waters.106  Some weeks later, the cities of Portsmouth and Dover filed similar actions in superior court.107

     

The State moved to dismiss the municipal actions on the basis that the doctrine of parens patriae108 required the cities’ suits to yield to the state’s. Parens patriae which, in modern times, has come to represent the state’s role in protecting quasi-sovereign interests such as the citizens’ health and welfare, had been cited in prior New Hampshire Supreme Court decisions which recognize the state’s interest in the welfare of children and mentally impaired persons.109   But City of Dover presented the Court with its first opportunity to define the limits of the parens patriae authority.

     

The trial court determined that the State had parens patriae standing and that the doctrine of parens patriae required that the cities’ suits must yield.110  On appeal, the cities challenged the state’s standing and urged that they had a compelling interest in suing the MtBE defendants and that the groundwater protections statute explicitly authorized municipalities to bring such a claim.111   Of particular concern to the cities was the announced intention of the state to use the monetary recovery from the suit to establish a public fund, to be managed by the Attorney General, rather than allocate the recovery to the cities based upon individual damages.112 

     

The Supreme Court looked to federal law in determining the test for the state to establish its parens patriae standing. First, the state must assert an injury to a quasi- sovereign interest, an interest apart from the interest of a private party.113  Second, the state must allege injury to a ‘substantial segment’ of its population.114

     

Applying these criteria here, the Court found that the state has a quasi-sovereign interest in the protection of the health and well-being of its residents with respect to the statewide water supply.115  Significantly, the Court held up as evidence of the state’s interest in the water supply, the very statute that it endorsed as only an ambitious policy goal in Appeal of Nottingham, the public trust statute.116 

     

The Court went on to find that establishing injury to a substantial segment of the population is not determined by a numerical threshold, but arises where the state is more than a nominal party and is not standing in for individuals in an otherwise private dispute.117  Given the factual record which revealed that, in 2002, 13.2 percent  of the statewide water supply, representing 40,000 private water users and “hundreds of public water systems,” was contaminated by MtBE, the Court was satisfied that MtBE contamination directly affected a substantial portion of New Hampshire’s population.118

     

The Court also turned aside the cities’ argument that the State must satisfy a third test for parens patriae standing: that individuals could not obtain complete relief through a private suit.119  Here, the Court reasoned that the State does not have the burden to demonstrate that the cities will obtain complete relief through the state suit; rather, it is the cities’ burden to show that they cannot obtain complete relief from the state suit.120

     

Lastly, the Court dismissed the cities’ argument that requiring their lawsuits to yield to the state’s litigation is inconsistent with a “comprehensive statutory framework” that authorizes and directs municipalities to bring MtBE contamination suits.121  Here, the cities’ had relied especially upon the statement of purpose clause in the Groundwater Protection Act, which declares, in part, that “[b]ecause groundwater is primarily a local resource, cities and towns should have the first opportunity to institute programs for groundwater protection.”122  The Court, not surprisingly, ruled that the right to initiate protection programs did not confer the power to sue for contamination.123

     

The right to seek damages for groundwater contamination, after City of Dover, firmly rests with the State.

 

Conclusion

Collectively, the four decisions examined here, NCES v. Town of Bethlehem, BioEnergy v. Town of Hopkinton, In re Appeal of the Town of Nottingham, and State v. City of Dover have established the state’s preeminence in the regulation of solid waste, air pollution, and groundwater resources. The decisions reflect the Court’s evident concern that environmental regulation not devolve into a web of inconsistent local standards.124  The decisions also reveal the Court’s acknowledgement of the State’s preference, if not obligation, to vindicate statewide interests.125   

     

Notwithstanding the preference for statewide environmental policymaking and permitting, the Court and the legislature have provided municipalities with a role in the environmental permitting process. Local governments remain free to adopt ordinances to mitigate the impact of facilities permitted by the state, so long as those ordinances are “administered in good faith and without exclusionary effect.”126

     

In this regard, after NCES II, any community may limit the expansion of a landfill or determine to exclude the siting of a solid waste landfill in the community in favor of providing solid waste disposal for its residents outside of the community.

     

The legislature has also clarified the role of municipalities in the large groundwater withdrawal process. Although the state will have the ultimate say in whether a permit is granted, the Department of Environmental Services has now been provided more definite approval criteria under which municipal impacts must be considered. Municipalities have also been provided important procedural and appeal rights that will ensure the development of a sound factual record before a permitting decision is reviewed by the Supreme Court. Federal environmental laws, especially through the availability of citizens’ suits, continue to provide municipalities with an important tool in the protection of the local environment.

     

As development pressures continue to assert themselves in the towns and cities across the state, and the availability of natural resources is affected, the interplay between the state and municipalities over the allocation of resources and protection of the local environment will surely continue to be addressed by the courts and the legislature.

 

ENDNOTES

1.   150 N.H. 606 (2004).

2.   153 N.H. 145 (2005).

3.   153 N.H. 539 (2006).

4.   153 N.H. 181 (2006).

5.   Gibbons v. Ogden, 22 U.S. (9 Wheat.) l, 92-93 (1824).

6.   See generally, Tribe, American Constitutional Law, § 6-23 (1978).

7.   Jones v. Rath Packing Company, 430 US 519, 525 (1977).  

8.   Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963);

9.   Hines v. Davidowitz, 312 U.S. 52, 67, 71 (1941). 

10. Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947).

11. See Trustees of Dartmouth College v. Woodward, 1 N.H. 111 (1817); see also In Re: Opinion of the Justices of 1930, 84 N.H. 559, 578 (1930)(Towns are but subdivisions of the State, given certain governmental powers and charged with some local government duties.  Any part of all of the local duties and obligations may be assumed by the State . . .  . ).

12. Bell v. Arel, 123 N.H. 311, 315 (1983).

3.   Vernet v. Town of Exeter, 129 NH.H. 34, 39 (1986).

14. RSA 430:49. 15 North Country Environmental Services v. Town of Bethlehem, 150 N.H. 606, 611 (2004).  

16. Id.  see also 5 McQuillen, Municipal Corporations, §21.34 at p. 335 (3rd ed. rev. 1998).  

17. See Arthur Whitcomb, Inc. v. Town of Carroll, 141 N.H. 402, 409 (1996).

18. For earlier decisions which consider state preemption of local regulation of environmental impacts, see Derry Sand & Gravel v. Town of Londonderry, 121 N.H. 501 (1981)(affirming municipal ordinance requiring local approval of private waste facility under state public health statute); see also Town of Salisbury v. New England Power Company, 121 N.H. 983 (1981) (invalidating municipal ordinance regulating use of chemical defoliants).  

19. 122 N.H. 1091 (1982).

20. 126 N.H. 45 (1985).

21. RSA 147-A-C.

22. Stablex, 122 N.H at 1099. 

23. Id. at 1095.

24. In addition to contending that it had the affirmative power to enact the popular consent ordinance, the Town argued alternatively that the hazardous waste statutes at issue could have preempted local regulation but did not expressly do so; the statutes’ silence, the Town averred, could not impliedly repeal the local powers previously delegated.  Id. at 1100.   The Town finally argued that Hazardous Waste Management Act expressly provided for local regulation by establishing a municipal hazardous waste review committee.  Id.

25. 122 N.H. at 1102.

26. 122 N.H. at 1104.

27. ACT v. Town of Merrimack, 126 N.H. at 47.

28. Id. at 48.  The Court cited the statute’s authority for the town to appoint a review committee and the requirement that the review committee study the immediate and long-term effects of the proposed facility on the local economy.  Id.

29. ACT v. Merrimack, 126 NH at 47; Stablex v. Town of Hooksett, 122 N.H. at 1104.

30. RSA 149-M:17.

31. RSA 149-M:23.

32. RSA 149-M:15, VIII. 

33. RSA 149M:10, IV.   In 2003, this provision was reenacted as RSA 149-M:9, VII and amended to read:  The issuance of a facility permit by the department shall not affect any obligation to obtain local approvals required under all applicable, lawful local ordinances, codes, and regulations not inconsistent with this chapter. Local land use regulation of facility location shall be presumed lawful if administered in good faith, but such presumption shall not be conclusive.  

34. 141 N.H. 355 (1996).

35. Id. at 357.

36. Id. at 358.

37. Id. at 362.

38. Id.

39. North Country Environmental Services, Inc. v. Town of Bethlehem, 146 N.H. 348, 350 (2001)(“NCES I“)

40. Id.

41. Id. at 351.

42. Id.

43. Id. at 351-352.

44. NCES I, 146 N.H. at 353. 

45. Id.  The trial court had determined, and the Supreme Court agreed, that neither the 1987 nor 1992 amendments could control landfill use within the 51 acres because they were enacted after the Town had granted the variance and special exception which permitted that use. See also North Country Environmental Services v. Town of Bethlehem, Superior Court No. 01-E-177, 2003 Westlaw 21213704 (referring to Amended Order, Fitzgerald, J. April 22, 1999).

46. NCES II, 150 N.H. at 609.

47. Id. at 609.

48. In addition to NCES I and NCES II, the Court has also issued a decision in Appeal of the Town of Bethlehem, 154 N.H. 314 (2006), in which the Town of Bethlehem appealed an order of the Department of Environmental Services granting NCES several pollution control property tax exemptions.

49. NCES II, 150 N.H. at 615.

50. Id. at 616.

51. Id. at 618.

52. Id.

53. See “Landfill Plan was Felled By One-Two Punch,” Concord Monitor, August 13, 2006.

54. 2007 Laws, Chapter 308, to be codified at 483:9,VI(a).

55. See “Measure Would Bar Merrimack Landfill,” Concord Monitor, May 2, 2007.

56. House Bill 98, 2007 Laws, Chapter 29.

57. 2007 Laws, Chapter 128, to be codified at RSA 125-C:10-c.

58. BioEnergy v. Town of Hopkinton, 153 N.H. 145, 147 (2006).

59. Id. at 148.

60. Id. at 149.

61. Id.

62. Order dated March 22, 2004, BioEnergy, LLC v. Board of Selectmen, Merrimack County Superior Court Docket No. 03-S-0446, at 8-9; BioEnergy, LLC v. Town of Hopkinton, supra, at 153-54.

63. Id.

64. BioEnergy, LLC v. Town of Hopkinton, 153 N.H. at 154.

65. See Exposure to Pollution is the Burning Question in Hopkinton, Union Leader, September 21, 2004, City Agrees to Join BioEnergy Fight, Concord Monitor, January 11, 2005, Wood Burning Controversy in New Hampshire, Construction and Demolition Recycling, February 6, 2004; Hundreds Rally Against BioEnergy, Bow Times, October 14, 2004.

66. See Maine Company Wants to Restart Power Plant, Union Leader, March 17, 2005.  The author represented Environmental Solutions, Inc. of Portland, Maine, in its effort to re-permit the former TIMCO generating plant to combust C&D derived woodchips.

67. See Power Plant Debate Begins, Keene Sentinel, January 23, 2005; Hinsdale May Have Little Say on Power Plant, Keene Sentinel, March 8, 2005.

68. Lawmakers Propose Bills on Debris, Concord Monitor, January 11, 2005.

69. 2006 Laws, Chapter 186 (HB 1433).

70. 2007 Laws, Chapter 128 (HB 428), to be codified at RSA 128-C:10-c.

71. 38 M.R.S.A §597 provides:  Nothing in this chapter shall be construed as a preemption of the field of air pollution study and control on the part of the State. Municipalities may study air pollution and adopt and enforce air pollution control and abatement ordinances, to the extent that these ordinances are not less stringent than this chapter or than any standard, order or other action promulgated pursuant to this chapter. Local ordinance provisions which touch on matters not dealt with by this chapter or which are more stringent than this chapter shall bind persons residing in the municipality.

72. See Environmental Control and Improvement Ordinance, Town of Jay, available at http://www.jay-maine.org/ordinances.html

73. Biddeford City Ordinance, Chapter 34; available at http://www.municode.com/Resources/gateway.asp?pid=10440&sid=19.  The author served as legal counsel to the City of Biddeford in the preparation and adoption of the City’s Air Toxics Ordinance. 

74. RSA 125-C:6,V

75. See N.H. Admin.R. Env-A 600.

76. Some 16 federal environmental statutes authorize citizens to sue as “private attorneys general” to require compliance with environmental standards.  Provisions of the Federal Clean Air Act and Clean Water Act are typical in this regard.  Those statutes allow “any person” to “commence a civil action on his own behalf” against either “any person” who violates a legal requirement or the U.S. Environmental Protection Agency for failure “to perform any act or duty … which is not discretionary.”  See 42 U.S.C. §7604(a) (Clean Air Act), 33 U.S.C. §1365(a)(Clean Water Act).  In the words of one federal court, citizen’s suit authority reflects “a deliberate choice by congress to widen citizen access to the courts, as a supplemental and effective assurance that [environmental laws] would be implemented and enforced.”  Natural Resources Defense Council v. Train, 510 Fed.2nd 692, 700(D.C. Cir. 1974). 

77. 153 N.H. 539 (2006).  The author’s law firm represented the Town of Nottingham in administrative proceedings before the Department of Environmental Services and in appeals of the groundwater permit granted to US Springs, Inc. before the N.H. Supreme Court.

78.        The public trust doctrine is a centuries old common law doctrine under which title to certain waters is held by the state in trust for the benefit of all, irrespective of who might own land abutting the water.  See generally Charles F. Wilkinson, The Headwaters of the Public Trust: Some of the Traditional Doctrine, 19 Envir. L. 425, 428-39 (1989).  “The state can no more abdicate its trust over property in which the whole people are interested…than it can abdicate its police powers in the administration of government and the preservation of the peace.”  Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 453 (1892).  Accord, Connecticut River Lumber Co. v. Olcott Falls, Co., 65 N.H. 290, 387-88 (1889) (public trust in water cannot be extinguished simply by a transfer of land).

79.  In re Appeal of Town of Nottingham, 153 N.H. at 542.

80.  Id.

81.  Id.

82. The Town and the other petitioners, the Town of Barrington and Save Our Groundwater, also argued on appeal that DES had violated the state’s wetlands statute in failing to require a wetlands permit for the impact of the withdrawal on nearby prime wetlands; that the withdrawal permit (in that it allowed the “mining” of water) constituted an unlawful taking of property; that DES erred in failing to hold an adjudicative hearing on the permit application; that petitioners were denied an immediate administrative appeal before the water council; and that DES failed in several instances to follow its own rules in evaluating USA Springs’ application.  See 153 N.H. at 542-55. 

83. 153 N.H. at 544.

84. 153 N.H. at 544-46.

85. Id. at 545.

86. Amicus Brief of the State of New Hampshire, No. 2004-0601, at 11.

87. Id. at 9.

88. Id.

89. Id.

90. In re Appeal of Nottingham, 153 N.H. at 552.

91. RSA 485-C:4,XII(b)(2001)(emphasis added).

92. N.H. Administrative Rule, Env-Ws 388.05(a).

93. 153 N.H. at 552.

94. Id.

95. The Court cited Webster’s Third New International Dictionary, which defines “need” as a want of something requisite, desirable, or useful.  153 N.H. at 552.

96. 153 N.H. at 554.

97. Id.

98. Id.

99. HB 69, 2005 Laws Chapter 200, codified at RSA 485-C:21.

100.      SB 386, 2006 Laws Chapter 322, codified at RSA 485-C:3; 485-C:14-a; 485-C:21.

101.      2007 Laws Chapter 322, Section 322:5, codified at RSA 485-C:21,V-b.

102.      HB 458, 2007 Laws Chapter 55, codified at RSA 485-C:22.

103.      See Notice of Removal, State of New Hampshire v. Amerada Hess, etc al. United States District Court for the District of New Hampshire. No. 03-486-JD

104.      See In re: MtBE Products Litigation, 175 F.Supp. 2d 593 (S.D. NY 2001).

105.      Id. at 600. 

106.      State v. City of Dover, 153 N.H. 181, 184 (2006); see also State of New Hampshire v. Amerada Hess, et al., Merrimack County Superior Court Docket No. 03-C-550.

107.      153 N.H. at 184.

108.      Parens patriae means “parent of the country” and refers to the role of the state as the guardian of persons under disability.  See State v. Dover, 153 N.H. at 185.

109.      153 N.H. at 884; see In re Juvenile 2002-098, 148 N.H. 743 (2002)(state’s interest in juveniles); see also Opinion of the Justices, 123 N.H. 554 (1983)(state’s interest in mentally incompetent persons).

110.      153 N.H at 184.

111.      Id. at 185.

112.      Id. at 189.

113.      Massachusetts v. Bull HN Information Systems, 16 F.Supp2d 90,96 (D.Mass.1998).

114.      Id. Accord, Alfred L. Snapp & Son., Inc. v. Puerto Rico, 458 U.S. 592,602-03 (1982)

115.      153 N.H. at 186.

116.      Id.

117.      Id. at 187.

118.      Id.

119.      Id.

120.      Id.

121.      Id. at 188.

122.      153 N.H at 190 citing RSA 485-C:1,II.  

123.      Id.

124.      See e.g. BioEnergy, 153 N.H. at 154(quoting JTR Colebrook v. Town of Colebrook, 149 N.H. 767, 771(“We regard it as highly improbable that the legislature, after establishing detailed guidelines,” intended to leave the ultimate regulation of air pollution “to the vagaries of local regulation.”).   See also NCES II, 150 N.H. at 617 (“In RSA chapter 149-M, the legislature has provided a regulatory framework for coordinating solid waste management statewide and for enduring that the State’s solid waste management needs will be met.”).

125.      See e.g. City of Dover, 153 N.H. 181, 186 (rejecting the cities’ contention that the State suit does not represent their interests).

126.      NCES II, 150 N.H. 616; BioEnergy v. Town of Hopkinton, 153 N.H. at 154 (citing Stablex, supra, 122 N.H. at 1104).

 

 

 

 

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