* Executive Editor, Boston College Environmental Affairs Law Review 2003–04. The author would like to thank his editors, all of whom left this Note in better condition than they found it.
1 See Act of Aug. 12, 1974, ch. 806, 1974 Mass. Acts 807–22 (largely codified at Mass. Gen. Laws ch. 21A (2002)).
2 See generally James Ayres, Report Warns of Bay State Environment Crisis, Boston Globe, Nov. 26, 1972, at 71 (stating that the purpose of the proposed legislation was to “eliminate overlapping responsibilities of various state agencies and to make state government more streamlined, efficient and, ideally, less expensive”); John W. Riley & R.S. Kindleberger, Environment: 49 State Agencies Would Be Combined, Boston Globe, Jan. 19, 1973, at 3 (observing that the legislation “would bring 49 units of state government under a single agency . . . end[ing] duplicated efforts and improv[ing] environmental services”).
3 See  2(7), 40(e), 1974 Mass. Acts at 808, 821. One provision from “An Act Establishing an Executive Office of Environmental Affairs” (the Act) that creates the Areas of Critical Environmental Concern (ACEC) program is codified at Mass. Gen. Laws ch. 21A,  2(7) (2002). The other provision from the Act that creates the ACEC program is not codified, but is found at section 40(e) of the legislation.  40(e), 1974 Mass. Acts at 821.
4 See  2(7), 40(e), 1974 Mass. Acts at 808, 821. For a more complete discussion of the power delegated to EOEA see infra text accompanying notes 195–203, see also infra note 197 for a discussion of whether EOEA was actually given affirmative power to designate ACECs.
5 See Anthony Flint, Landowners Take on State Protection Plan Hurting Property Value, Suit Says, Boston Globe, Dec. 6, 2001, 2001 WL 31230790 (quoting several ACEC landowners as saying “environmental-concern designations [ACEC designations] are being used with more vigor as a tool to control growth.”); Erica Noonan, Environmental Area Ruling Near, Boston Globe, Dec. 5, 2002, 2002 WL 101987462 [hereinafter Noonan, Environmental Area] (“The [ACEC] issue, some say, goes beyond an appreciation of the region’s natural resources. It has turned into a struggle over development rights . . . .”). Contra Erica Noonan, Landowners Riled by Environmentalists’ Push Proposal Designates More Than Half of Some Towns for Protection, Boston Globe, June 16, 2002, 2002 WL 4134021 [hereinafter Noonan, Landowners] (quoting one proponent as saying that the ACEC Program “is not a regulatory sledgehammer . . . [it] is not about protecting, but about sustaining the ecology. It creates a framework within which different towns can work together for ecological planning.”).
6 See Erica Noonan, Environmental Activists Elated by State Ruling Some Landowners Angered by Process, Boston Globe, Dec. 15, 2002, 2002 WL 101989609 [hereinafter Noonan, Activists]; Erica Noonan, State to Protect 64,000 Acres in 11 Towns Limits Development Northwest of Boston, Boston Globe, Dec. 12, 2002, 2002 WL 101988240.
7 See Noonan, Environmental Area, supra note 5. The other communities affected by this designation were Ashby, Harvard, Lancaster, Lunenburg, and Tyngsborough. See id.
8 See id. Approximately seventy percent of ACEC lands have received that designation in the years since 1990. See Dep’t of Envtl. Mgmt., Executive Office of Envtl. Affairs, Guide to State Regulations & Programs Regarding ACECs 16 (2001), available at http://www.state.ma.us/dem/programs/acec/regsbooklet.pdf (last visited Nov. 4, 2003).
9 See Mass. Regs. Code tit. 301,  12.05(1)(a) (2002). Such a nomination may also be made by: (1) the Board of Selectmen, City Council, Mayor, Planning Board, or Conservation Commission of any city or town affected by the nomination; (2) any state or regional planning agency; (3) any member of the Massachusetts General Court; or (4) the Governor. See id.  12.05(1)(b)–(d).
10 Id.  12.07.
11 See generally id.  12.06.
12 See id. For a complete list of eligibility factors see infra note 283.
13 See Mass. Regs. Code tit. 301,  12.08. In fact, an attendee characterized one public meeting for the December 2002 ACEC designation as a “mutual admiration society” where “countless ACEC supporters extoll[ed] the virtues of [the EOEA Secretary] and vice versa, each insisting that the other had done so much more to further the cause.” In contrast, when an ACEC opponent voiced concerns, the Secretary “sat in quiet conversation with an associate.” See Joan Simmons, Letter, Environmental Official Appeared Close to One Side, Boston Globe, Dec. 22, 2002, 2002 WL 101991391.
14 Mass. Regs. Code tit. 301,  12.10.
15 See id.  12.09. Examples of factors that might justify designation include the following: uniqueness from a regional perspective; outstanding natural characteristics like recreational opportunities; or richness of wildlife nutrients. See id.
16 See Dep’t of Envtl. Mgmt., supra note 8, at 5–15. These three agencies are the Office of Coastal Zone Management, Massachusetts Environmental Policy Act Office, and Department of Environmental Protection. See id. In addition, the regulatory schemes of these three agencies involve at least six different environmental programs administered at the state level. See id.
17 See id. at 7 (“ACECs are addressed in the MEPA regulations at 301 CMR 11.03(11). The proponent of any project (as defined by the MEPA regulations) located within an ACEC must file an Environmental Notification Form . . . unless the project consists solely of one single family dwelling.”).
18 See Doreen M. Zankowski, An Overview of the Massachusetts Environmental Protection Act (“MEPA”), Construction Outlook Mag., June 2002.
19 Id. at 3.
20 See Dep’t of Envtl. Mgmt., supra note 8, at 9, 15 (“Within an ACEC, potential projects are prohibited that would result in the loss of up to 5,000 square feet or, in some cases, up to 500 square feet, of Bordering Vegetated Wetland ([defined at] 310 CMR 10.55(4)(e)). . . . [R]egulations . . . prohibit the siting of solid waste management facilities within an ACEC.”). For a complete discussion of how state environmental agencies regulate ACECs, see generally id. at 5–15.
21 Baker v. Coxe, 230 F.3d 470, 472 (1st Cir. 2000). Contra Noonan, Landowners, supra note 5 (noting that development has not slowed in some ACEC areas, and quoting one advocate as saying that ACEC regulations are “so nominal that they won’t prevent development”).
22 See, e.g., Act of Aug. 12, 1974, ch. 806,  2(7), 40(e), 1974 Mass. Acts 807, 808, 821 (giving EOEA the power to develop policies regarding the use of ACECs); see also Mass. Gen. Laws ch. 30A,  2, 5 (2002) (describing procedures for passage of Massachusetts administrative regulations); Mass. Regs. Code tit. 301,  12.13 (2002) (outlining the only formal procedure available to appeal an ACEC designation).
23 See  2(7), 40(e), 1974 Mass. Acts at 808, 821.
24 See discussion infra Part III.C.
25 See generally discussion infra Part III.
26 See Askew v. Cross Key Waterways, 372 So. 2d 913, 914–15, 919 (Fla. 1978).
27 See, e.g., Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 Vand. L. Rev. 1167, 1177 (1999); Gary J. Greco, Survey, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8 Admin. L.J. Am. U. 567, 567–68 (1994).
28 See generally Rossi, supra note 27, at 1189 (comparing and contrasting the fifty state nondelegation doctrines and the federal nondelegation doctrine); Greco, supra note 27, at 568.
29 Askew, 372 So. 2d at 920–21 (quoting CEEED v. Cal. Coastal Zone Conservation Comm’n, 118 Cal. Rptr. 315, 329 (Ct. App. 1974) (citing Kugler v. Yocum, 445 P.2d 303, 306 (Cal. 1968))).
30 See generally, e.g., U.S. Const. arts. I–III; Mass. Const. pmbl. pt. 2, chs. I–III.
31 See generally, e.g., INS v. Chadha, 462 U.S. 919, 945–46 (1983); Buckley v. Valeo, 424 U.S. 1, 120–24 (1976); Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise  2.1 (3d ed. 1994).
32 See generally, e.g., Rossi, supra note 27, at 1177–81, 1185–91; Greco, supra note 27, at 567–70.
33 See Rossi, supra note 27, at 1188–89; Greco, supra note 27, at 568.
34 See, e.g., Buckley, 424 U.S. at 120. In Buckley, the Supreme Court stated that:
James Madison . . . defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. . . . [Madison wrote:] “[t]he reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. ‘When the legislative and executive powers are united in the same person or body,’ says he, ‘there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’”
Id. (quoting The Federalist No. 47, at 299 (James Madison) (G.P. Putnam’s Sons ed., 1908)).
35 See generally, e.g., Chadha, 462 U.S. at 945–46; Buckley, 424 U.S. at 120–24.
36 See generally, e.g., Rossi, supra note 27, at 1177–81, 1185–91; Greco, supra note 27, at 567–70.
37 See generally Davis & Pierce, supra note 31,  2.6; Rossi, supra note 27, at 1239–40. This Note does not discuss delegations of power attempted by the executive or judicial branches.
38 See, e.g., Davis & Pierce, supra note 31,  2.6 (discussing the various motivations behind delegations of power).
39 See generally Brodbine v. Inhabitants of Revere, 66 N.E. 607, 609 (Mass. 1903) (holding that the Legislature had delegated “administration of details which the Legislature cannot well determine for itself”); Rossi, supra note 27, at 1179 (“[D]elegation to agencies can assist in reducing the costs of making decisions, including the monitoring and supervision costs; agencies have institutional advantages over legislatures that make them more cost effective.”).
40 Rossi, supra note 27, at 1183 (quoting INS v. Chadha, 462 U.S. 919, 967–68 (1983) (White, J., dissenting)).
41 See, e.g., Brodbine, 66 N.E. at 608 (noting a general prohibition on delegations of legislative power); Oliver v. Okla. Alcoholic Beverage Control Bd., 359 P.2d 183, 187 (Okla. 1961).
42 See, e.g., Davis & Pierce, supra note 31,  2.6.
43 See, e.g., Kenneth Culp Davis, Administrative Law Treatise  2.02 (1st ed. 1958) (noting that the “nondelegation doctrine is wholly judge-made”).
44 Compare Democratic Party of Okla. v. Estep, 652 P.2d 271, 277–78 (Okla. 1982) (holding that legislatures must set out policies and articulate definite standards when delegating power), with Barry & Barry, Inc. v. State Dep’t of Motor Vehicles, 500 P.2d 540, 542 (Wash. 1972) (holding that procedural safeguards determine the validity of delegations because “the requirement of specific legislative standards for the delegation of legislative power is excessively harsh and needlessly difficult to fulfill”).
45 See Davis & Pierce, supra note 31,  2.6 (“Except for two 1935 cases, the Court has never enforced its frequently announced prohibition on congressional delegation of legislative power.”); Rossi, supra note 27, at 1178 (“Since 1935, the Supreme Court has not invalidated a single statute on non-delegation grounds.”); Greco, supra note 27, at 575–76 (observing that Justice Thurgood Marshall viewed the federal doctrine as “abandoned,” while others believe it to be a “nullity” that “should be reworked”).
46 Rossi, supra note 27, at 1178 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)); see also Carter v. Carter Coal Co., 298 U.S. 238, 311–12 (1936); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935); Pan. Ref. Co. v. Ryan, 293 U.S. 388, 430 (1935); Greco, supra note 27, at 572–73.
47 See, e.g., A.L.A. Schechter Poultry, 295 U.S. at 541–42.
48 See Rossi, supra note 27, at 1178; Greco, supra note 27, at 574–75.
49 See Greco, supra note 27, at 574–75.
50 See Rossi, supra note 27, at 1178.
51 See id.; see also Davis, supra note 43,  2.15 (hypothesizing that safeguards should take the place of statutory standards, because the policy underlying the nondelegation doctrine can still be served if the recipient of power is forced to protect against “unfairness or favoritism”).
52 See Davis & Pierce, supra note 31,  2.6; Greco, supra note 27, at 575–77.
53 Rossi, supra note 27, at 1180.
54 See id. at 1180–81 (“Although, following Justice Rehnquist’s suggestion, some lower courts referred to the doctrine as ‘no longer . . . moribund,’ one must search far and wide to find lower court opinions striking delegations as unconstitutional.”).
55 Rossi, supra note 27, at 1189; Greco, supra note 27, at 578. Theories abound as to why state courts are more apt than their federal counterparts to find legislative delegations of power unconstitutional. Some believe that a textual difference between state and federal constitutions yields the answer. See, e.g., Rossi, supra note 27, at 1188–89. Others hypothesize that federal courts readily permit legislative delegations to the “massive federal bureaucracy” because such agencies are considered reliable, while similar delegations to state agencies are rejected because those smaller agencies are thought to be less expert, and are viewed more skeptically. See Greco, supra note 27, at 578 (citing Daniel R. Mandelker et al., State and Local Government in a Federal System 599 (2d ed. 1983)). Some subscribe to the notion that any difference is illusory—the only reason that state courts use the nondelegation doctrine more frequently to invalidate laws is because, numerically, there are many more state statutes under review than federal statutes. See id.
56 See Rossi, supra note 27, at 1191; Greco, supra note 27, at 579–80.
57 See Rossi, supra note 27, at 1191–200; Greco, supra note 27, at 579–80.
58 See Rossi, supra note 27, at 1193–97 (noting the existence of this category, but labeling it “strong nondelegation states”); Greco, supra note 27, at 580–88. Both commentators agree that this category contains at least eighteen states: Arizona, Florida, Kentucky, Massachusetts, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, and West Virginia. See Rossi, supra note 27, at 1191–200; Greco, supra note 27, at 579–80. One commentator, however, believes that the category contains two additional states—Illinois and Utah—bringing his total number of states in the category up to twenty. See Rossi, supra note 27, at 1196.
59 Greco, supra note 27, at 580; see Rossi, supra note 27, at 1193–97. It has been noted that this version of the nondelegation doctrine roughly corresponds to federal doctrine from the 1930s, when that doctrine was at its strongest. Greco, supra note 27, at 580.
60 See Rossi, supra note 27, at 1198–200 (dubbing the category “moderate nondelegation states”); Greco, supra note 27, at 580. Each commentator agrees that twenty-three states belong in this category: Alabama, Alaska, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, New Jersey, North Carolina, North Dakota, Rhode Island, Tennessee, Vermont, and Wyoming. See Rossi, supra note 27, at 1198–200; Greco, supra note 27, at 588–90. One commentator would include Illinois in this category, bringing his total to twenty-four states. See Greco, supra note 27, at 588–90.
61 See Rossi, supra note 27, at 1200; Greco, supra note 27, at 588. This category mirrors the federal doctrine of the 1940s, when the Supreme Court required only “general” standards to make a legislative delegation of power acceptable. See Greco, supra note 27, at 588.
62 See Rossi, supra note 27, at 1191–93 (naming the category “weak nondelegation states”); Greco, supra note 27, at 598–99. It is agreed that six states fit into this category: California, Iowa, Maryland, Oregon, Washington, and Wisconsin. See Rossi, supra note 27, at 1191–93; Greco, supra note 27, at 598–99. One commentator would include Arkansas, raising his total number in the category to seven. See Rossi, supra note 27, at 1201 tbl.1.
63 Rossi, supra note 27, at 1191–93; Greco, supra note 27, at 598–99.
64 See Rossi, supra note 27, at 1191–200; Greco, supra note 27, at 579–80.
65 See Rossi, supra note 27, at 1189, 1239–40 (observing that the application of the nondelegation doctrine in the states appears to “transcend constitutional text,” and that the typical state decision “‘strings together some misleading legal cliches and announces the conclusion’” (quoting Davis, supra note 43,  2.07)); Greco, supra note 27, at 601 (“At first glance, [strict standards and safeguards] states appear to adhere to a strict delegation doctrine. Recently, however . . . nine out of the eighteen states [within this category] have upheld delegations of power to state agencies.”).
66 See Rossi, supra note 27, at 1196; Greco, supra note 27, at 583.
67 See Act of Aug. 12, 1974, ch. 806,  2(7), 40(e), 1974 Mass. Acts 807, 808, 821; Rossi, supra note 27, at 1196; Greco, supra note 27, at 583.
68 Compare C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 67 (Mass. 2002) (“The principle that the General Court may not delegate the authority to make laws is firmly established.”), with Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973) (representing the last Massachusetts decision to strike down a statute on nondelegation grounds).
69 See Mass. Const. pmbl. pt. 1, art. 30; Constr. Indus. of Mass. v. Comm’r of Labor & Indus., 546 N.E.2d 367, 373 (Mass. 1989).
70 Mass. Const. pt. 1, art. 30.
71 Compare Mass. Const. pt. 1, art. 30, with U.S. Const. art. I–III; see also Rossi, supra note 27, at 1190 (citing Article 30 as an example of a mandatory separation of powers provision). It should be noted that the Massachusetts requirement of separation of powers is not as burdensome in practice as it appears in rhetoric. See generally Commonwealth v. Gonsalves, 739 N.E.2d 1100, 1104–05 (Mass. 2000). In reality, Massachusetts courts have opined that constitutional separation of powers does not actually require “watertight” compartments of government, and that branches may utilize the powers of another branch if doing so would be more efficient. See id.; Opinions of the Justices to the Senate, 363 N.E.2d 652, 658–62 (Mass. 1977). As a rule, when this borrowing occurs, “focus . . . is on ‘the essence of what cannot be tolerated under art. 30 . . . interference by one department with functions of another.’” Gray v. Comm’r of Revenue, 665 N.E.2d 17, 22 (Mass. 1996) (quoting Chief Admin. Justice of the Trial Court v. Labor Relations Comm’n, 533 N.E.2d 1313, 1316 (Mass. 1989)).
72 See, e.g., Constr. Indus. of Mass., 546 N.E.2d at 373; Brodbine v. Inhabitants of Revere, 66 N.E. 607, 608 (Mass. 1903).
73 See Brodbine, 66 N.E. at 608.
74 Id. (emphasis added).
75 See, e.g., C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 67 (Mass. 2002) (“The principle that the General Court may not delegate the authority to make laws is firmly established.”); Constr. Indus. of Mass, 546 N.E.2d at 373 (“Article 30 . . . provides for the strict separation of powers in the government of the Commonwealth. The doctrine of separation of powers encompasses the general principle that the Legislature cannot delegate the power to make laws.”).
76 See C & S Wholesale Grocers, 766 N.E.2d at 67; Constr. Indus. of Mass., 546 N.E.2d at 373.
77 See Brodbine, 66 N.E. at 608–09.
78 See id.
79 Id. at 608.
80 Id.
81 Id.
82 Id. at 609.
83 See Brodbine, 66 N.E. at 609.
84 See id. at 608–09.
85 See id. at 609.
86 See id.
87 See id.
88 Mass. Bay Transp. Auth. v. Boston Safe Deposit & Trust Co., 205 N.E.2d 346, 351 (Mass. 1965).
89 See, e.g., Town of Warren v. Hazardous Waste Facility Site Safety Council, 466 N.E.2d 102, 112–13 (Mass. 1984); Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 300–01 (Mass. 1981).
90 See, e.g., C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 69 (Mass. 2002); Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 45 (Mass. 2001).
91 428 N.E.2d at 300. Generally, delegating to the Commissioner of Insurance the authority to classify or not classify income as “gross investment income” for annual statement purposes was the most contentious issue. Id.
92 Id.
93 Id.
94 Id.
95 Id. at 300–01.
96 Id.
97 See Mass. Mut. Life Ins., 428 N.E.2d at 300–01. The SJC has determined in numerous other instances that statutes delegated only the working out of details. See, e.g., Town of Warren v. Hazardous Waste Facility Site Safety Council, 466 N.E.2d 102, 112–13 (Mass. 1984) (upholding a statute that froze local zoning when a developer filed a notice of intent to build a hazardous waste facility because the developer’s ability to file a notice of intent was a necessary detail of the legislative policy that hazardous waste facilities should be more easily sited); Arno v. Alcoholic Beverages Comm’n, 384 N.E.2d 1223, 1226–28 (Mass. 1979) (upholding a statute that prohibited the granting of liquor licenses within 500 feet of an objecting school or church because the right to object to liquor licenses was only a detail of the larger policy that liquor should be kept away from concerned schools or churches).
98 See Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973). On another occasion, a dissenting opinion found a prospective delegation of legislative authority to violate the nondelegation doctrine. See Opinion of Justices to Senate, 424 N.E.2d 1092, 1110–11 (Mass. 1981) (Liacos & Abrams, JJ., dissenting).
99 294 N.E.2d at 355.
100 Id.
101 Id. at 355–56.
102 Id. at 356.
103 See id. at 362. Though the statute in question delegated power to an individual and not to another government actor, the court placed little emphasis on that distinction. See id. (“Delegations of governmental powers to private persons or groups can be no broader than that to public boards or officers.”). Subsequent decisions agreed that delegations should not fail just because power was delegated to outside actors. Town of Arlington v. Bd. of Conciliation & Arbitration, 352 N.E.2d 914, 920 (Mass. 1976) (“The delegation does not fail in that it was conferred on a ‘private person’ . . . . [D]elegations to private persons are not forbidden so long as proper safeguards are provided.”).
104 See Corning Glass Works, 294 N.E.2d at 360 (“The resolution of this dispute involves questions of economic theory and political judgment: To what extent is the obvious short-run interest of the consumer in lower prices offset by a long-ru[n] interest in preserving a competitive structure. . . . Disputes of this type are regularly and properly resolved in the political and legislative arenas.”).
105 Compare Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 300–01 (Mass. 1981), with Corning Glass Works, 294 N.E.2d at 362.
106 See Corning Glass Works, 294 N.E.2d at 362.
107 See, e.g., Mass. Mut. Life Ins., 428 N.E.2d at 300–01; Corning Glass Works, 294 N.E.2d at 362.
108 See Corning Glass Works, 294 N.E.2d at 362.
109 See id.
110 See id. The need to guard against abuse with standards and safeguards had been discussed in some prior cases. See, e.g., Mass. Bay Transp. Auth. v. Boston Safe Deposit & Trust Co., 205 N.E.2d 346, 351 (Mass. 1965).
111 Corning Glass Works, 294 N.E.2d at 362.
112 See id.
113 See 352 N.E.2d 914, 920 (Mass. 1976).
114 See id. at 917 n.3. The three-member arbitration panel consisted of an arbitrator selected by the municipality, an arbitrator selected by the employee organization, and an impartial arbitrator selected by the other two arbitrators. Id.
115 Id. at 917.
116 Id. at 917 n.3. This authority also depended upon the fulfillment of other statutory requirements having to do with notice, good faith, and exhaustion of remedies. See id.
117 See id. at 919.
118 See id. at 920.
119 See Bd. of Conciliation & Arbitration, 352 N.E.2d at 919–20. Perhaps the court viewed the real policy decision as the determination that labor impasses involving police and fire departments should be resolved quickly. See id. By extension, the actual selection of one “last and best” offer would only represent a detail that was necessary to carry out that larger policy. See id. But, one could argue that the selection of one salary offer over another could not help but represent a policy judgment about the proper level of compensation emergency officials should receive, involving intangible factors like the difficulty of the job, and the importance of the services rendered. See id. In this sense, the power delegated here is arguably like the determination of a tax rate, or the setting of a “fair-trade” price, that other decisions have classified as policy-based. Cf. Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 300–01 (Mass. 1981); Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973).
120 See Bd. of Conciliation & Arbitration, 352 N.E.2d at 920.
121 Id. (quoting Kenneth Culp Davis, Administrative Law Treatise  2.00–5 (Supp. 1970)).
122 Id. The ten standards consisted of a list of “factors . . . to be given weight by the arbitration panel in arriving at a decision.” Id. at 919 n.5.
123 Id. at 920.
124 Compare Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 300–01 (Mass. 1981), with Bd. of Conciliation & Arbitration, 352 N.E.2d at 919–21.
125 See, e.g., Mass. Mut. Life Ins., 428 N.E.2d at 300–01.
126 See, e.g., Bd. of Conciliation & Arbitration, 352 N.E.2d at 919–21.
127 See Chelmsford Trailer Park, Inc. v. Town of Chelmsford, 469 N.E.2d 1259, 1262 (Mass. 1984).
128 See id.
129 Id.
130 See id. at 1263–65.
131 Id. at 1260.
132 See id. at 1261–62 (discussing the policy and purpose behind the statute, but identifying the “main thrust of the owner’s argument” as having to do with a lack of standards in the statute).
133 See Chelmsford Trailer Park, 469 N.E.2d at 1261–64 (largely skipping the first inquiry because the plaintiff’s argument implicated only the second and third inquiries). A “negative answer” to the first Chelmsford inquiry is another way of saying that only control over the details of an already-stated policy had been delegated. See id. at 1262.
134 Id. at 1262. In its analysis, the court explicitly alluded to third-inquiry safeguards only once, when it stated that the act “provides . . . sufficient safeguards to protect against arbitrary action or abuse of discretion.” See id. In large part, the court seemed to assume that if it could find sufficient standards to satisfy the second inquiry, the safeguards required by the third inquiry would also be present. See id. at 1262–64 (“This act, coupled with the availability of judicial review and the clearly expressed objectives of the act, provides sufficient protection to the owner and to the other tenants against the arbitrary granting of rent decreases.”).
135 Id. at 1262.
136 Id. (quoting Mass. Bay Transp. Auth. v. Boston Safe Deposit & Trust Co., 205 N.E.2d 346, 351 (Mass. 1965)).
137 See id. at 1262–64.
138 See id. at 1264.
139 Chelmsford Trailer Park, 469 N.E.2d at 1264. “Fair net operating income” was defined as income after expenses which yields a return on the fair market value of the property equal to the generally available debt service rate or such other rates as the board deems appropriate. Id.
140 See id.
141 See id. at 1263.
142 Id. (quoting Jones v. Town of Wayland, 402 N.E.2d 63, 68–69 (Mass. 1980) (quoting Haines v. Town Manager, 68 N.E.2d 1, 3 (Mass. 1946))).
143 Id.
144 Id. at 1262–64.
145 See Chelmsford Trailer Park, 469 N.E.2d at 1262–64; see also Risk Mgmt. Found. v. Comm’r of Ins., 554 N.E.2d 843, 847–48 (Mass. 1990).
146 See generally, e.g., C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63 (Mass. 2002); Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37 (Mass. 2001); Opinions of the Justices to the House of Representatives, 696 N.E.2d 502 (Mass. 1998) [Ops. Justices H.R.]; Opinion of the Justices to the Senate, 660 N.E.2d 652 (Mass. 1996) [Op. Justices S.]; Powers v. Sec’y of Admin., 587 N.E.2d 744 (Mass. 1992); Risk Mgmt. Found., 554 N.E.2d 843; Constr. Indus. of Mass. v. Comm’r of Labor & Indus., 546 N.E.2d 367 (Mass. 1989); Blue Cross of Mass., Inc. v. Comm’r of Ins., 489 N.E.2d 1249 (Mass. 1986); Opinion of the Justices to the House of Representatives, 471 N.E.2d 1266 (Mass. 1984) (finding delegations, or prospective delegations, to pass nondelegation scrutiny) [Op. Justices H.R.].
147 See, e.g., C & S Wholesale Grocers, 766 N.E.2d at 68; Tri-Nel Mgmt., 741 N.E.2d at 44–45; Op. Justices H.R., 696 N.E.2d at 507–08; Powers, 587 N.E.2d. at 748–50.
148 Powers, 587 N.E.2d at 745.
149 See id.
150 See id. at 748.
151 Id. at 749.
152 Id.
153 Id. Examples of these powers and objectives included specific directives that the “receiver” establish: (1) an annual balanced budget; (2) a five-year operating and capital outlay plan; (3) school and government budgets; (4) uniform budget guidelines; (5) uniform financial planning systems; (6) a “city recovery” plan; and (7) prudent financial management techniques. See id.
154 Powers, 587 N.E.2d at 750.
155 Id.
156 See, e.g., C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 67–68 (Mass. 2002).
157 See Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 44–45 (Mass. 2001); Blue Cross of Mass., Inc. v. Comm’r of Ins., 489 N.E.2d 1249, 1255–56 (Mass. 1986); Chelmsford Trailer Park, Inc. v. Town of Chelmsford, 469 N.E.2d 1259, 1262 (Mass. 1984).
158 See 489 N.E.2d at 1256. It should be noted that although Blue Cross of Massachusetts, Inc. was decided after Chelmsford Trailer Park, the Blue Cross court did not explicitly acknowledge the Chelmsford inquiries in its holding. See id. at 1255–56.
159 Id. at 1250–51.
160 Id. at 1255 n.12 (quoting Act of July 12, 1984, ch. 199,  2, 5–6, 1984 Mass. Acts 316, 317–19).
161 Id. at 1255.
162 See id. at 1255–56. Again, the Blue Cross court dealt with subject matter covered by these Chelmsford inquiries, but did not explicitly reference the inquiries. See id.
163 Id. at 1256 (quoting Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 361 (Mass. 1973)).
164 Blue Cross of Mass., 489 N.E.2d at 1256. There were undoubtedly formal judicial safeguards in place that could have protected those who may have been aggrieved by the Commissioner’s decisions, such as the normal judicial review of administrative decisions. Yet, the court did not mention any such safeguards in its analysis, and did not seem to place much importance on whether such avenues for appeal did, or did not, exist. See id. at 1255–56.
165 Id.
166 Id.
167 See id.
168 See Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 41 (Mass. 2001).
169 See id. at 40, 44.
170 Id. at 44–45 (explaining that “public health matters affecting local communities may be the subject of reasonable municipal regulation,” while adding that the Legislature had made similar policy determinations that prohibited smoking in other public locations).
171 Id. at 45.
172 See id.
173 See id.
174 Tri-Nel Mgmt., 741 N.E.2d at 45.
175 Compare C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 67 (Mass. 2002) (“The principle that the General Court may not delegate the authority to make laws is firmly established.”), with Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973) (representing the last Massachusetts decision to strike down a statute on nondelegation grounds).
176 See supra text accompanying notes 45–54.
177 In the years just after the Chelmsford inquiries were announced, there was some doubt as to what would be the accepted nondelegation approach. Several nondelegation decisions did not use the Chelmsford inquiries and applied a much stricter “test” that focused on statutory standards. See, e.g., Risk Mgmt. Found. v. Comm’r of Ins., 554 N.E.2d 843, 848 (Mass. 1990); Op. Justices H.R., 471 N.E.2d 1226, 1219–20 (Mass. 1984); see also Greco, supra note 27, at 587 tbl.1 (identifying the Massachusetts nondelegation “standard” as having come from Op. Justices H.R., 471 N.E.2d at 1226). This uncertainty appears to have been resolved—all of the most recent Massachusetts nondelegation decisions use the Chelmsford inquiries. See, e.g., C & S Wholesale Grocers, 766 N.E.2d at 68; Tri-Nel Mgmt., 741 N.E.2d at 44–45; Ops. Justices H.R., 696 N.E.2d 502, 507 (Mass. 1998).
178 See supra text accompanying notes 77–123.
179 See Chelmsford Trailer Park, 469 N.E.2d at 1262; supra text accompanying notes 91–106.
180 See Chelmsford Trailer Park, 469 N.E.2d at 1262; supra text accompanying notes 107–123.
181 See generally, e.g., C & S Wholesale Grocers, 766 N.E.2d at 67–68; Chelmsford Trailer Park, 469 N.E.2d at 1262–64.
182 See infra text accompanying notes 184–194.
183 See infra text accompanying notes 237–250.
184 See, e.g., C & S Wholesale Grocers, 766 N.E.2d at 68; Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 45 (Mass. 2001); Ops. Justices H.R., 696 N.E.2d 502, 507 (Mass. 1998); Op. Justices S., 660 N.E.2d 652, 659 (Mass. 1996); Powers v. Sec’y of Admin., 587 N.E.2d 744, 749 (Mass. 1992); Constr. Indus. of Mass. v. Comm’r of Labor & Indus., 546 N.E.2d 367, 373 (Mass. 1989).
185 See infra text accompanying notes 186–194.
186 Chelmsford Trailer Park, 469 N.E.2d at 1262.
187 Id.
188 See id.
189 See id.
190 C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 67 (Mass. 2002); see also Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 44 (Mass. 2001) (holding that “‘[t]he doctrine of separation of powers encompasses the general principle that the Legislature cannot delegate the power to make laws’” (quoting Constr. Indus. of Mass. v. Comm’r of Labor & Indus., 546 N.E.2d 367, 373 (Mass. 1989))).
191 See, e.g., Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 300–01 (Mass. 1981); Brodbine v. Inhabitants of Revere, 66 N.E. 607, 609 (Mass. 1903) (making a distinction between “incidental” and “subsidiary” matters).
192 See 428 N.E.2d at 301.
193 See C & S Wholesale Grocers, 766 N.E.2d at 67 (stating that power to make laws may not be delegated); Mass. Mut. Life Ins., 428 N.E.2d at 301 (equating the power to make laws with the power to formulate substantive policy).
194 See, e.g., C & S Wholesale Grocers, 766 N.E.2d at 67; Chelmsford Trailer Park, 469 N.E.2d at 1262; Mass. Mut. Life Ins., 428 N.E.2d at 301.
195 See Act of Aug. 12, 1974, ch. 806,  2(7), 40(e), 1974 Mass. Acts 807, 808, 821.
196 Mass. Gen. Laws ch. 21A,  2(7) (2002) (“[EOEA] shall carry out the state environmental policy and in so doing they shall . . . develop statewide policies regarding the acquisition, protection, and use of areas of critical environmental concern to the commonwealth.”).
197 See  40(e), 1974 Mass. Acts at 821. The assertion that the Act actually gives EOEA affirmative power to designate ACECs is debatable. See id. Section 40(e) of the Act only gives EOEA the authority to “conduct a study relative to land use so as to identify and designate areas of critical environmental concern . . . .” Id. (emphasis added). Thus, one could argue that since the Legislature only gave EOEA the power to “conduct a study,” it delegated something less than total autonomy. See id. That conclusion is strengthened by the use of the term “shall” earlier in the Act when delegating powers—if the Act intended to give away complete control over the designation process, it probably would have followed this earlier language by stating that EOEA “shall” have the power to designate ACECs. See  2(7), 1974 Mass. Acts at 808. Whatever was intended, the regulations that govern the ACEC process make it clear that EOEA has seized the designation power as its own. See Mass. Regs. Code tit. 301,  12.10 (2002) (“The [EOEA] Secretary shall make a final decision as to whether or not to designate a nominated area. . . . The Secretary shall designate an ACEC only after finding that . . . the area is of critical environmental concern to the Commonwealth.”).
198 See  2(7), 1974 Mass. Acts at 808. Conversely, if the Massachusetts Legislature administered the ACEC program itself, there would be fewer questions about the program’s legality. Selecting individual areas of the state that are environmentally critical—and subjecting those areas to increased regulation—certainly falls within the Legislature’s power to protect the health, safety, and welfare of Massachusetts citizens. See Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm’n, 711 N.E.2d 135, 138 (Mass. 1999). (“Under the cognate provisions of the Massachusetts Constitution, legislation must bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.”). But, because the Legislature delegated this authority to EOEA, constitutional concerns and additional dangers come into play and trigger nondelegation scrutiny.
199  2(7), 1974 Mass. Acts at 808 (emphasis added).
200 See id.
201 See  2(1)–(28), 1974 Mass. Acts at 808–09. In very general terms, the Act created EOEA, and then listed twenty-eight powers that it possessed. Id.
202 See id.  2(4), (6), (9), (11), (14), (16), (18), (19), (22)–(24), (27).
203 See id.
204 See supra text accompanying notes 91–106, 148–174.
205 See infra text accompanying notes 207–217.
206 See id.
207 See supra text accompanying notes 91–97, 148–174.
208 Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 300 (Mass. 1981).
209 See id. at 300–01.
210 See id. at 299 n.2, 300.
211 See id.
212 See Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973).
213 See id. at 355–56.
214 See id. at 359.
215 See id. at 360.
216 See id. at 362.
217 See id. Many other SJC nondelegation decisions mirror Massachusetts Mutual Life Insurance Co. and Corning Glass Works, by supporting the notion that the “threshold determination” power to formulate policy equals the right to balance benefits and costs. See, e.g., Powers v. Sec’y of Admin., 587 N.E.2d 744, 749 (Mass. 1992) (upholding a statute that balances the future fiscal health of Chelsea with the costs of suspending Chelsea’s democratic municipal government for at least a year); Town of Warren v. Hazardous Waste Facility Site Safety Council, 466 N.E.2d 102, 112 (Mass. 1984) (affirming the validity of a statute that balances the benefit of facilitating hazardous waste facility siting with the cost of suspending democratic zoning for a short time); Arno v. Alcoholic Beverages Comm’n, 384 N.E.2d 1223, 1226–28 (Mass. 1979) (upholding a statute that balances the benefit of wholesome church and school environments with the costs imposed on liquor vendors who encounter licensing difficulties).
218 See Act of Aug. 12, 1974, ch. 806,  2(7), 40(e), 1974 Mass. Acts 807, 808, 821; Dep’t of Envtl. Mgmt., supra note 8, at 3 (describing the purpose of ACEC designation as “the long-term preservation, management, and stewardship of critical resources and ecosystems”).
219 See  2(7), 40(e), 1974 Mass. Acts at 808, 821; Dep’t of Envtl. Mgmt., supra note 8, at 9, 15 (“Within an ACEC, potential projects are prohibited that would result in the loss of up to 5,000 square feet . . . of Bordering Vegetated Wetland . . . .” ACEC regulations “prohibit the siting of solid waste management facilities within an ACEC.”); Noonan, Environmental Area, supra note 6 (“Development in ACEC-covered areas are subject to stricter environmental reviews under the Massachusetts Environmental Protection Act.”).
220 Cf. supra text accompanying notes 207–217; note 217 (discussing nondelegation cases where fulcrums balanced benefits and costs in other contexts).
221 Cf. supra text accompanying notes 207–217; note 217.
222 See  2(7), 40(e), 1974 Mass. Acts at 808, 821.
223 See  2(7), 1974 Mass. Acts at 808 (emphasis added).
224 See  40(e), 1974 Mass. Acts at 821.
225 Id. This provision also points to a section of the Massachusetts Code that defines “irreversible damage to the environment.” Id.; see also Mass. Gen. Laws ch. 30,  61 (2002) (defining “irreversible damage to the environment”).
226 See  40(e), 1974 Mass. Acts at 821; cf. supra text accompanying notes 207–217; note 217 (discussing nondelegation cases where fulcrums balanced benefits and costs in other contexts).
227 See  40(e)(10), 1974 Mass. Acts at 821.
228 Id.
229 See id. By way of comparison, if the Act had stated that 5% of all Massachusetts lands should be considered environmentally critical, an actual fulcrum would have been placed. The Legislature would have made the determination that only 5%of Massachusetts land is environmentally critical enough to justify ACEC regulation. The determination of which lands belong in that 5% could then be delegated to EOEA, as a detail of this larger policy. See infra text accompanying notes 238–249 (discussing nondelegation cases where fulcrums balanced benefits and costs in other contexts); cf. Askew v. Cross Key Waterways, 372 So. 2d 913, 915 (Fla. 1979) (describing a Florida program nearly identical to the Massachusetts ACEC program, but containing a provision that prohibited the program from “designating more than five percent . . . of the land within the state . . . as an area of critical state concern.”).
230 See  40(e)(10), 1974 Mass. Acts at 821. In fact, evidence suggests that EOEA does use this “catch-all” clause to largely circumvent the Act, by designating ACECs through a complex procedure that it has designed itself. See Mass. Regs. Code tit. 301,  12.01–.12 (2002). Specifically, EOEA allows “any ten citizens” of Massachusetts to identify and nominate lands that they think are worthy of ACEC designation, reflecting permissiveness that is not contemplated by the Act. Compare id.  12.05(1), with  2(7), 40(e), 1974 Mass. Acts at 808, 821. Moreover, although the eleven criteria for ACEC eligibility bear some resemblance to the “suggestions” from the Act, when the actual decision to designate or not designate an area is made, the EOEA Secretary uses criteria that have no solid basis in the Act itself. Compare Mass. Regs. Code tit. 301,  12.06, 12.09, with  2(7), 40(e), 1974 Mass. Acts at 808, 821. It would appear that EOEA justifies this wide latitude by requiring itself to hold public hearings, thereby placing the activities under the “catch-all” clause of the Act’s section 40(e). Compare  40(e), 1974 Mass. Acts at 821, with Mass. Regs. Code tit. 301,  12.08 (“Before designating an area, the [EOEA] Secretary shall hold a public hearing.”).
231 Compare  2(7), 40(e), 1974 Mass. Acts at 808, 821, with Comm’r of Revenue v. Mass. Mut. Life Ins. Co., 428 N.E.2d 297, 299 n.2, 300–01 (Mass. 1981), and Corning Glass Works v. Ann & Hope, Inc., 294 N.E.2d 354, 362 (Mass. 1973).
232 See supra text accompanying notes 220–221.
233 See  2(7), 40(e), 1974 Mass. Acts at 808, 821; cf. Corning Glass Works, 294 N.E.2d at 362.
234 See  2(7), 40(e), 1974 Mass. Acts at 808, 821; cf. Mass. Mut. Life Ins., 428 N.E.2d at 299 n.2, 300–01.
235 See supra text accompanying notes 195–230.
236 See supra text accompanying notes 185–194.
237 See supra text accompanying notes 146–174.
238 See Chelmsford Trailer Park, Inc. v. Town of Chelmsford, 469 N.E.2d 1259, 1262 (Mass. 1984).
239 See, e.g., C & S Wholesale Grocers, Inc. v. City of Westfield, 766 N.E.2d 63, 68 (Mass. 2002) (borrowing standards from other tax statutes); Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 45 (Mass. 2001) (discussing why general guides could replace more explicit standards); Ops. Justices H.R., 696 N.E.2d 502, 507 (Mass. 1998) (stating that a delegation can be guided by reference to other statutes); Op. Justices S., 660 N.E.2d 652, 658–59 (Mass. 1996) (inferring standards from a statute’s purpose); Chelmsford Trailer Park, 469 N.E.2d at 1262–64 (inferring standards from a statute’s purpose and borrowing standards from other statutes).
240 See Tri-Nel Mgmt., 741 N.E.2d at 45; Blue Cross of Mass., Inc. v. Comm’r of Ins., 489 N.E.2d 1249, 1256 (Mass. 1986).
241 See Blue Cross of Mass., 489 N.E.2d at 1256.
242 See id. (emphasis added).
243 See supra text accompanying note 239.
244 See Tri-Nel Mgmt., 741 N.E.2d at 45; Blue Cross of Mass., 489 N.E.2d at 1256.
245 Greco, supra note 27, at n.65 (citing Frank E. Cooper, State Administrative Law 73–91 (1965); Kenneth Culp Davis, Administrative Law Treatise,  2.04 (2d ed. 1978); Kenneth Culp Davis, 1982 Supplement to Administrative Law Treatise,  3.14 (1982)). But see Rossi, supra note 27, at 1189 (suggesting that the “trend” towards protecting against arbitrariness picked up steam in the 1960s and 1970s, but stalled thereafter).
246 Town of Arlington v. Bd. of Conciliation & Arbitration, 352 N.E.2d 914, 920 (Mass. 1976) (quoting Kenneth Culp Davis, Administrative Law Treatise,  2.00–5 (Supp. 1970)).
247 Chelmsford Trailer Park, Inc. v. Town of Chelmsford, 469 N.E.2d 1259, 1264 (Mass. 1984).
248 Constr. Indus. of Mass. v. Comm’r of Labor & Indus., 546 N.E.2d 367, 374 (Mass. 1989).
249 See supra text accompanying notes 184–194.
250 See Chelmsford Trailer Park, 469 N.E.2d at 1262; supra text accompanying notes 239–248. Putting these ideas together with those from supra text accompanying notes 184–194, this Note suggests that the Chelmsford inquiries be revised to reflect the current status of the doctrine. This revised test would state that:
In order to determine whether a delegation of legislative authority is “proper,” Massachusetts courts undergo a two-part analysis. First, the courts make a threshold determination of constitutionality—does a delegation give away the power to make fundamental policy decisions? See Chelmsford Trailer Park, 469 N.E.2d at 1262. If so, the statute violates the nondelegation doctrine. See generally supra text accompanying notes 184–194.
If the answer to this threshold determination is no, because only implementation of an already-stated policy is delegated, the courts move on to the second half of the analysis. Specifically, the courts evaluate whether there is overall protection against arbitrariness within a delegation of power. See generally supra text accompanying notes 239–248. To make this determination, courts may consider: (1) whether a delegation provides statutory standards, or other guidance, to direct the implementation of policy; and (2) whether a delegation provides for safeguards that prevent potential abuses of discretion by recipients of power. See Chelmsford Trailer Park, 469 N.E.2d at 1262. If the courts find that a delegation does not protect against arbitrariness, the statute violates the nondelegation doctrine. See generally supra text accompanying notes 239–248.
251 See supra note 239.
252 See Act of Aug. 12, 1974, ch. 806,  2(7), 40(e), 1974 Mass. Acts 807, 808, 821.
253 See  40(e)(1)–(9), 1974 Mass. Acts at 821.
254 See, e.g., Powers v. Sec’y of Admin., 587 N.E.2d 744, 750 (Mass. 1992).
255 See id. Another safeguard was the fact that the recipient of power was under the direct supervision of the Secretary of Administration. See id.
256 See Mass. Gen. Laws ch. 21A,  1, 3 (2002); see also Mass. Gen. Laws ch. 30A,  2, 5 (2002) (dealing with the passage of administrative regulations).
257 See  2(7), 40(e), 1974 Mass. Acts at 808, 821; Powers, 587 N.E.2d at 750.
258 See id. Of course, general administrative safeguards restrict EOEA. See Mass. Gen. Laws ch. 30A,  2, 5 (2002). In the ACEC context, however, where EOEA drafts all regulations itself, one might ask if administrative safeguards really restrain discretion. See id;  2(7), 40(e), 1974 Mass. Acts at 808, 821.
259 See infra text accompanying notes 260–267.
260 Blue Cross of Mass., Inc. v. Comm’r of Ins., 489 N.E.2d 1249, 1256 (Mass. 1986) (stating that a delegation did not give the recipient of power “unfettered discretion”).
261 Id. at 1255 n.12.
262 See id. at 1256 (noting that the Commissioner had “restricted his discretion in holding that ‘[i]t is beyond the scope of my statutory authority to dictate exactly what . . . programs should be undertaken . . . .’”).
263 See Tri-Nel Mgmt., Inc. v. Bd. of Health, 741 N.E.2d 37, 45 (Mass. 2001).
264 See id. at 41.
265 See id. at 45.
266 See id.
267 See id.
268 Cf. Tri-Nel Mgmt., 741 N.E.2d at 45 (finding meaningful limits because board regulations would have to be reasonable and could be compared to prior statutes).
269 Compare Act of Aug. 12, 1974, ch. 806,  2(7), 1974 Mass. Acts 807, 808, with Tri-Nel Mgmt., 741 N.E.2d at 45.
270 See Tri-Nel Mgmt., 741 N.E.2d at 45; Blue Cross of Mass., Inc. v. Comm’r of Ins., 489 N.E.2d 1249, 1256 (Mass. 1986).
271 See  40(e), 1974 Mass. Acts at 821; Blue Cross of Mass., 489 N.E.2d at 1256.
272 See  40(e), 1974 Mass. Acts at 821; Tri-Nel Mgmt., 741 N.E.2d at 45.
273 See  40(e), 1974 Mass. Acts at 821; see also Mass. Regs. Code tit. 301,  12.02–.12 (2002) (setting out ACEC designation procedures).
274 See supra text accompanying notes 239–248.
275 See Dep’t of Envtl. Mgmt., supra note 8, at 16–18.
276 See id. (listing land in the ACEC program before the December 2002 designation); Noonan, Environmental Area, supra note 6 (detailing the amount of lands and a list of towns that were affected by the December 2002 designation).
277 See Dep’t of Envtl. Mgmt., supra note 8, at 16–18.
278 See id.; see also Mass. Water Res. Auth., Quabbin Reservoir and Ware River, at http://www.mwra.state.ma.us/04water/html/hist5.htm (last visited Sept. 21, 2003) (stating that the Quabbin Reservoir supplies the metropolitan Boston area with water, and that the 412 billion gallon waterbody is the largest man-made reservoir in the world devoted solely to water supply).
279 Mass. Regs. Code tit. 301,  12.03 (2002).
280 See generally Mass. Regs. Code tit. 301,  12.01–.16 (2002) (describing the ACEC nomination and designation process).
281 See id.  12.03, .05–.07, .10.
282 See id.  12.05(1)(a)–(d).
283 See id.  12.06. In full, the nomination criteria state that:
To be eligible for nomination, an area shall contain features from four or more of the following groups: (1) Fishery Habitat—anadromous/catadromous fish runs, fish spawning areas, fish nursery areas, or shellfish beds; (2) Coastal Features—barrier beach system, beach, rocky intertidal shore, or dune; (3) Estuarine Wetlands—embayment, estuary, salt pond, salt marsh, or beach; (4) Inland Wetlands—freshwater wetlands, marsh, flat, wet meadow, or swamp; (5) Inland Surface Waters—-lake, pond, river, stream, creek, or ox bow; (6) Water Supply Areas—floodplain, erosion area, or unstable geologic area; (7) Natural Hazard Areas—floodplain, erosion area, or unstable geologic area; (8) Agricultural Area—land of agricultural productivity, forestry land, or aquaculture site; (9) Historical/Archaeological Resources—buildings, site, or district of historical, archaeological, or paleontological significance; (10) Habitat Resources—habitat for threatened or endangered plant or animal species, habitat for species of special concern, or other significant wildlife habitat; and (11) Special Use Areas—undeveloped or natural areas, public recreational areas, or significant scenic site.
Id. Thus, so long as an area contains one feature from four out of these eleven groups, it can be nominated for ACEC consideration. See id.
284 See Mass. Regs. Code tit. 301,  12.06(4)–(5), (8), (11); see also Letter from David E. Tully, concerned resident, to Robert Durand, EOEA Secretary 1 (Sept. 27, 2002) (on file with author) (“Under the ‘ACEC Nomination Guidelines,’ there can hardly be any parcel on land within any of the communities affected [by the December 2002 designation] that do not meet the criteria . . . .”). In fact, though this Note does not address the issue, a court might find these regulations to be so vague that they are unconstitutional under the “void for vagueness” doctrine. Compare Mass. Regs. Code tit. 301,  12.06, with Daddario v. Cape Cod Comm’n, 780 N.E.2d 124, 130 (Mass. App. Ct. 2002) (finding that a statute could be void for vagueness if it is “so vague that ‘men of common intelligence must necessarily guess at its meaning and differ as to its application,’ thereby allowing ‘untrammeled [administrative] discretion’ . . . and arbitrary and capricious decisions . . . .” (quoting Bd. of Appeals v. Hous. Appeals Comm., 294 N.E.2d 393, 411–12 (Mass. 1973))).
285 See Noonan, Environmental Area, supra note 5 (noting that ACEC opponents believe the December 2002 nomination to have been “spearheaded by a handful of supporters” who belong to various pro-environment groups); Letter from David E. Tully, concerned resident, to Robert Durand, EOEA Secretary 2 (Oct. 7, 2002) (on file with author) (“Looking at the average person promoting the [ACEC] nomination/designation, what does this person have to lose? Absolutely nothing, his/her property values [do] not change dramatically, while the person owning the land pays the taxes, [and] carries the burden of ownership while some[one] else enjoys the scenic benefits.”). Contra Noonan, Environmental Area, supra note 5 (quoting ACEC proponents as saying that more than ten nominating signatures were gathered in every town affected by the December 2002 nomination).
286 See Benjamin Krass, Note, Combating Urban Sprawl in Massachusetts: Reforming the Zoning Act Through Legal Challenges, 30 B.C. Envtl. Aff. L. Rev. 605, 606 (2003); see also Letter from David E. Tully, concerned resident, to Robert Durand, EOEA Secretary 2 (Oct. 7, 2002) (on file with author) (raising the possibility that the ACEC nominators might have been motivated by a desire to slow land development in the area).
287 See Mass. Regs. Code tit. 301,  12.08 (2002).
288 Simmons, supra note 13. There is also evidence that several citizens sent Durand letters asking him to exclude land from the nomination that did not appear to meet the eligibility threshold—something that Durand ultimately chose not to do. See, e.g., Letter from Lee Anne Gunderson, concerned citizen, to Robert Durand, EOEA Secretary 2 (Sept. 16, 2002) (on file with author) (comparing the nomination criteria to her land and stating, “[a]s you can see, our property contains one or debatably two features at the most. For this reason alone, our property should never have been included [in the ACEC nomination].”); Letter from Richard R. Smith, concerned landowner, to Robert Durand, EOEA Secretary 1 (Aug. 23, 2002) (on file with author) (requesting that his land be excluded from the ACEC nomination because “the criteria for nomination, para. 12.06 (1), (2), (3), (5), (6), (7), (9), and (11) do not apply to [my] land”).
289 Mass. Regs. Code tit. 301,  12.09.
290 See id.  12.08–.09. EOEA must also make written findings concerning the decision, and make them available to the public pursuant to state administrative rules. See id.  12.11(1).
291 See Act of Aug. 12, 1974, ch. 806,  2(7), 40(e), 1974 Mass. Acts 807, 808, 821; Mass. Regs. Code tit. 301,  12.00–.16.
292 See supra text accompanying notes 276–279.
293 See supra text accompanying notes 280–286.
294 See supra text accompanying notes 287–291.
295 See supra text accompanying notes 251–294.
296 See supra text accompanying notes 238–250.
297 For an example of how the Massachusetts Legislature could revamp the ACEC program to insulate it from attack, see supra note 229.