[*PG103]REEXAMINING THE MASSACHUSETTS NONDELEGATION DOCTRINE: IS THE “AREAS OF CRITICAL ENVIRONMENTAL CONCERN” PROGRAM AN UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY?

Benjamin M. McGovern*

Abstract:  In 1974, the Massachusetts Legislature delegated authority to develop statewide policies “regarding the acquisition, protection, and use of areas of critical environmental concern” to the Executive Office of Environmental Affairs (EOEA). As of 2003, this power has been parlayed into a program that regulates nearly a quarter of a million acres across seventy-five Massachusetts municipalities, and in some instances affects the vast majority of all land in a particular community. To be certain, delegations of legislative power like the one given to EOEA are necessary to make government work. It is also possible, however, for these delegations to be overbroad, as federal and state non-delegation doctrines draw lines in the sand that delegations cannot cross. In Massachusetts, one might be tempted to conclude that this limitation no longer exists, since the state judiciary has not invalidated a delegation of legislative power in thirty years. This Note examines whether the powers given to EOEA could reverse this trend, and revive the Massachusetts non-delegation doctrine.

Introduction

On August 12, 1974, Massachusetts Governor Francis W. Sargent signed into law “An Act Establishing an Executive Office of Environmental Affairs” (the Act).1 The main purpose of the legislation was to centralize previously fragmented environmental regulation power into one state agency, the Executive Office of Environmental Affairs [*PG104](EOEA).2 In addition to that purpose, it is also significant that the Act gave birth to the Massachusetts Areas of Critical Environmental Concern (ACEC) program.3 Specifically, the Act created that program by giving EOEA authority to identify Massachusetts lands that should be “designated” as ACECs, as well as power to protect those lands by developing policies that govern ACEC “use.”4 While it is impossible to know what Massachusetts lawmakers originally intended, some believe that the ACEC program has developed into a regulatory sledgehammer that the modern EOEA uses to stifle land development in the name of environmental protection.5

Fast forward to December 11, 2002. On that date, EOEA Secretary Robert Durand announced that his office was designating 64,000 acres of land in north-central Massachusetts as an ACEC.6 With that simple pen stroke, Durand placed land from eleven different com[*PG105]munities into the ACEC program, including 88% of Groton, 71% of Townsend, 61% of Dunstable, 54% of Pepperell, and just under 50% of both Ayer and Shirley.7 By far, Durand’s designation was the largest in the ACEC program’s history, bringing the total amount of land under the program’s purview to nearly a quarter of a million acres.8

One might think that such a designation, affecting so many communities and landowners, would be the product of a reasoned and intelligent public debate. That is not the case. The process is much simpler. In fact, all that is required to begin the designation process is nomination of an area for ACEC consideration by any ten citizens of Massachusetts, irrespective of whether those citizens are landowners, residents of an affected community, or in any way qualified to make such a nomination.9

Once made, nominations are reviewed by the EOEA Secretary to make certain that the area nominated is indeed “eligible” to be designated as an ACEC.10 The threshold for eligibility, however, is set at a fairly low level. To be eligible, an area must contain an environmental “attribute” from four out of eleven groups—but these groups are extremely inclusive.11 For example, environmental “attributes” that help satisfy the four-group requirement include swamps, streams, creeks, oxbows, lands of agricultural productivity, forestland, natural areas, and scenic sites.12

If the EOEA Secretary finds a nominated area to be eligible, the next step in the designation process is a public hearing, though there is no requirement that opposition to the nomination be considered in good faith.13 To conclude the process, the EOEA Secretary must ei[*PG106]ther accept or reject any nomination within sixty days after the public hearing.14 While the EOEA Secretary can consider nine factors when making this decision, the “strong” presence of even a single factor is enough to support a finding that a nominated area should be designated as an ACEC.15

Considering the relative ease with which large swaths of Massachusetts can be designated as ACECs, one might think that the substantive effects of such a designation would be minimal. Again, that is not the case. An ACEC designation has teeth. Individuals wishing to develop ACEC-designated land face significant obstacles, found in the complex regulatory schemes of three different Massachusetts agencies.16 The most onerous of these obstacles is that any development in an ACEC requiring a state permit becomes subject to review under the Massachusetts Environmental Policy Act (MEPA).17 Functionally, this can result in “crippling delay” and additional expense, because MEPA review requires developers to submit up to three detailed reports—all at their own expense—that identify a project’s environmental impacts, examine the ways that the developer can mitigate negative impacts, and suggest alternatives to those impacts.18 Moreover, promises made in these reports must be kept before necessary state permits can be issued.19 Another potent obstacle to ACEC development is the strict prohibition of certain land uses within ACECs.20 [*PG107]The First Circuit has summed up the effect of all this restriction by noting that ACEC lands “[are] subject to use restrictions and presumably a diminution in value.”21 Moreover, Massachusetts agencies can make ACEC regulations stricter at any time. In other words, once land is designated, its development potential is placed under a permanent cloud of uncertainty.22

At the very least, the Act places substantial power in the hands of the EOEA Secretary. Such power is represented by the Secretary’s ability to craft nomination and designation procedures regarding ACECs, as well as by the authority to place land-use restrictions on ACECs.23 As a result, the EOEA Secretary can almost unilaterally affect the property rights of Massachusetts landowners.24

Although true that the ACEC program has existed in this form for nearly thirty years, it nonetheless may be vulnerable to attack precisely because the EOEA Secretary has been delegated such potent powers.25 In 1978, a nearly identical program was adjudged to violate the Florida Constitution because the legislation creating that program delegated to an administrative official “the fundamental legislative task of determining which geographic areas and resources are in greatest need of protection.”26 Moreover, decisions like this are not uncommon—when legislatures attempt to broadly delegate powers to third parties or government agencies, they can violate the “nondelegation doctrine.”27 This judicial restraint on legislative activity has been recognized in various forms by every state and has also been the [*PG108]subject of successful litigation in federal courts.28 The fact that this doctrine exists, and can invalidate broad delegations of power, begs an important question: could a court conclude that the Act violates the Massachusetts version of the nondelegation doctrine?

Part I of this Note provides a general synopsis of the nondelegation doctrine, examining its constitutional origins and reviewing general application of the doctrine in federal and state courts. Part II of this Note explores the specific strain of the nondelegation doctrine that has evolved in Massachusetts. Part III of this Note analyzes whether Massachusetts courts could use this doctrine to strike down the ACEC program and concludes that such a result is conceivable.

I.  Different Conceptions of the Nondelegation Doctrine

The constitutional doctrine prohibiting delegation of legislative power rests on the premise that the Legislature may not abdicate its responsibility to resolve the ‘truly fundamental issues’ by delegating that function to others or by failing to provide adequate directions for the implementation of its declared policies.29

The basic structure of American government is familiar to most citizens. Our constitutions, both federal and state, divide government into three branches: legislative, executive, and judicial.30 Equally familiar is the “separation of powers” corollary: constitutions give each of these branches a separate set of powers to utilize and no branch may exercise the powers of another.31

A less familiar notion might be the “nondelegation doctrine” described above. Though not explicitly required by any constitution, this doctrine represents a logical extension of the separation of powers framework.32 Specifically, if separation of powers means that no branch can take away the powers of another branch, then branches [*PG109]cannot give away, or delegate, these same powers.33 In other words, since constitutional authors placed powers in specific branches, they must have meant for those powers to stay there.34 To accomplish this end, separation of powers and the nondelegation doctrine work in tandem. The former operates to stop aggressive branches from stealing the powers of other branches.35 The latter does the opposite; courts employ it in order to prevent branches from delegating their constitutionally-assigned powers to other entities.36

Though simple in theory, the nondelegation doctrine is complex in practice, particularly when courts examine delegations of legislative power, like the ACEC delegation.37 Because legislatures are responsible for passing laws dealing with a broad range of topics, they often encounter unfamiliar subject matter that is well understood only by experts in a particular academic or scientific field.38 Legislatures cope with this problem by drafting difficult statutes in extremely broad terms, while delegating the resolution of complicated details to entities with specialized experience and knowledge.39 If such delegations [*PG110]were not allowed, legislators would be faced with the “‘hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape,’” and few laws would ever get passed.40

Unfortunately, the realization that delegation of legislative power can be efficient puts competing interests at play. On the one hand, a literal application of the nondelegation doctrine seems to indicate that any delegation of the law-making authority is impermissible if the separation of power principle means anything.41 On the other hand, common sense indicates that modern legislatures could never function if they were unable to delegate some responsibility to specialized administrative agencies or other experts.42 When weighing these competing interests, courts are not constrained by the nondelegation doctrine as they have been with specific constitutional commands, since the nondelegation doctrine arises only as an implicit extension of the separation of powers framework.43 As a result, the doctrine is malleable. Courts may interpret it as broadly or as narrowly as they choose; leading to different conceptions of the nondelegation doctrine across jurisdictions, and varying views on what is the permissible level of legislative delegation.44

A.  The Federal Vision of the Nondelegation Doctrine

When Congress delegates power to other actors, federal courts almost always accept the delegations as proper, a fact that has led some commentators to pronounce the nondelegation doctrine dead at the federal level.45 There was a time, however, when the federal doctrine [*PG111]had more vitality. In the 1930s, the Supreme Court found on three separate occasions that a congressional statute violated the nondelegation doctrine because the statute lacked a “substantive, ‘intelligible principle’ articulated by Congress” that could help courts decide if recipients of delegated powers used them in accordance with legislative intent.46 These decisions indicated that federal delegations were permissible, but only if detailed standards were included to guide the delegation.47

Over time, the federal judiciary began to articulate a vision of the nondelegation doctrine that was less demanding.48 Starting in the 1940s, the Supreme Court stopped insisting upon the inclusion of detailed standards, and began finding that congressional delegations of power were acceptable so long as “general” standards were present.49 Eventually, the federal judiciary went even further. By the 1960s, the focus of nondelegation inquiries had shifted entirely, away from an emphasis on statutory standards, and towards an examination of the procedural safeguards put in place by the recipients of delegated powers.50 In other words, the courts no longer relied on statutory standards to regulate the exercise of delegated powers; rather, they placed trust in the recipient’s safeguards, hypothesizing that delegated powers could not be abused if the recipient forced itself to utilize those powers responsibly.51

In recent years, since Congress usually delegates power to administrative agencies that have extensive procedural safeguards built into their structures, federal courts easily find safeguards present, and rarely invalidate delegations.52 Though Justice Rehnquist attempted to revive a standards-based interpretation in the 1980s,53 the permissive proce[*PG112]dural safeguard approach continues to dominate federal jurisprudence today.54

B.  The Nondelegation Doctrine at the State Level

As the preceding section makes clear, the federal nondelegation doctrine is little more than an academic curiosity—an outdated legal theory that is virtually useless to modern litigants. At the state level, however, the “nondelegation doctrine is alive and well,” because “state supreme courts historically have used the delegation doctrine to a greater extent than the U.S. Supreme Court to strike down legislative delegations of power.”55 Even so, state nondelegation doctrines are far from consistent. Each state judiciary has a particularized interpretation of their nondelegation doctrine, and some states are far more likely to strike down a delegation of legislative power than others.56

Despite these global differences, two separate commentators have theorized that state nondelegation doctrines can be divided into three general groups.57 The first group, the “strict standards and safeguards” category, includes approximately twenty states that have articulated the strongest possible version of the nondelegation doctrine.58 These states [*PG113]permit delegations of legislative power only if the statute delegating the power “provide[s] definite standards . . . or procedures that the [recipient] must adhere to when making a decision.”59

The second group, the “loose standards and safeguards” category, contains nearly half of all states, and favors a more moderate view of the nondelegation doctrine.60 Within these states, delegations are acceptable if the delegating statute includes a “general legislative statement of policy,” or “a general rule to guide the [recipient] in exercising the delegated power.”61

The final group, the “procedural safeguards” category, consists of a handful of states, and advocates the weakest nondelegation doctrine.62 Largely mirroring current federal doctrine, these states ignore statutory standards, and find delegations of legislative power to be acceptable so long as recipients of the power have “adequate procedural safeguards” in place.63

Viewed as a whole, these three groups form a spectrum of nondelegation interpretation, ranging from aggressive interpretations of the doctrine to those that are more restrained.64 Though the groups constituting the spectrum appear distinctive, in practical application the state doctrines do not fit so easily into one category or another.65 [*PG114]For example, commentators generally agree that the Massachusetts nondelegation doctrine belongs in the “strict standards and safeguards” category—reserved for those states most likely to overturn delegations of power.66 Thus, it would seem that legislative delegations of power in Massachusetts, like the ACEC delegation, would be subject to more aggressive judicial review, and therefore vulnerable to attack.67 The reality is that the Massachusetts Supreme Judicial Court has not invalidated a legislative delegation of power since 1973, although it has continuously professed that the doctrine retains force as a judicial tool.68 Is the Massachusetts nondelegation doctrine dead?

II.  The Massachusetts Nondelegation Doctrine

A.  Origins in Constitutional Text

The Massachusetts nondelegation doctrine takes root in a textual command from the state constitution that makes separation of powers mandatory in state government.69 Specifically, Article 30 of the Massachusetts Declaration of Rights (Article 30) dictates that:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.70

Thus, unlike the federal constitution and some state constitutions, the Massachusetts Constitution explicitly spells out the separation of powers requirement; it is impermissible for any branch of gov[*PG115]ernment to utilize the powers of another.71 Perhaps less obviously, the explicit nature of Article 30 also makes it easier for the Massachusetts judiciary to extend this separation of powers framework by articulating a nondelegation doctrine.72

In fact, Massachusetts courts recognized as early as 1903 that Article 30 provides a constitutional basis for the nondelegation doctrine.73 In Brodbine v. Inhabitants of Revere, the Massachusetts Supreme Judicial Court (SJC) noted that, “[i]t is well established in this commonwealth and elsewhere that the Legislature cannot delegate the general power to make laws, conferred upon it by a constitution like that of Massachusetts. . . . This doctrine is held by the courts almost universally.”74 Moreover, this idea seems to have survived the passage of time, because the current SJC often uses this exact language when examining delegations of legislative power.75 In sum, Massachusetts courts have had little trouble acknowledging that a nondelegation doctrine exists, and that it has a solid basis in the text of the state constitution.76 More troublesome has been the determination of just how potent this doctrine should be.

[*PG116]B.  Are Some Types of Delegation Permissible?

Even as the turn-of-the-century SJC was discovering the nondelegation doctrine, it realized that the Massachusetts Legislature would need some ability to delegate authority in order to be functional.77 In fact, even as Brodbine cited the nondelegation doctrine with approval, the court actually approved the delegation at issue.78 Brodbine involved municipal park commissioners who located and built a boulevard within a state park, and passed a resolution forbidding vehicular travel on that boulevard.79 Plaintiff, aggrieved by the prohibition, alleged that the Massachusetts Legislature had violated the nondelegation doctrine by giving municipal boards the power to regulate state parklands.80

In addressing the allegation, the SJC recognized that Article 30 supports the idea that the Legislature cannot delegate the power to make laws.81 Nevertheless, the court found that the delegation in question did not violate Article 30 because there was “strong ground for the contention that the . . . statute simply leaves to the [Revere] board . . . administration of details which the Legislature cannot well determine for itself . . . .”82

Implicitly, the court concluded that it would be inefficient to require the Legislature to draft detailed regulations for every park in the state, so it should be allowed to delegate that responsibility to other entities.83 In order to justify approving such a delegation in the face of the “well established” nondelegation doctrine, the court sought refuge in the distinction between formulation of legislative policy and control over administrative details that carry out such policies.84 Specifically, the court held that the power to make laws had not been delegated because the Revere board was only given authority to fill in the gaps of a legislative policy that the Legislature had already articulated.85 According to the court, the larger policy was that individuals violating any park regulation should be punished, in order to avoid chaos in state parks.86 For the court, the essence of legislative power [*PG117]was represented by that large policy decision, and not by the specific park regulation that prohibited vehicular travel.87

1.  Continued Recognition That Some Delegation Is Acceptable

Thus, through Brodbine, the SJC sent a signal that the nondelegation doctrine existed, but that it would not prohibit every single delegation of legislative power. This principle was expressed more clearly in a later decision, when the court stated that “[t]he Legislature may delegate . . . the working out of the details of a policy adopted by the Legislature.”88 Having articulated this bright-line test, in subsequent years the court had to distinguish between legislative policymaking and the administration of details on many occasions.89 As a general matter, the SJC has almost always found these delegations to be permissible.90

For example, in Commissioner of Revenue v. Massachusetts Mutual Life Insurance Co., the SJC examined a statute that gave the Commissioner of Insurance authority to decide what information Massachusetts insurance companies were required to include in their annual financial statements.91 The plaintiff argued that the contents of annual statements critically affected what portion of their yearly income was taxable, and by extension, functionally determined the amount of excise tax they owed.92 Thus, the plaintiffs alleged that by giving the Commissioner power to control annual statement contents, the Legislature effectively handed over the power to calculate excise tax bills in violation of the nondelegation doctrine.93 The court rejected this argument, holding that the Commissioner’s discretion to alter the contents of annual statements was for the purpose of eliciting a “complete and accurate exhibit of the condition and transactions of the companies,” and that any related influence over the amount of tax paid was [*PG118]purely incidental.94 Moreover, the court emphasized that the Legislature had itself determined the excise tax rate, and had only delegated the authority to determine what portion of yearly income was applicable to that rate.95 The legislative policy was the determination of the tax rate applicable to insurance companies, and a detail necessary to carry out that policy was the amount of yearly income upon which that rate would operate.96 Thus, since the Legislature had made the policy determination and had only delegated the working out of details, the court found the delegation constitutional.97

2.  A Reminder That the Doctrine Retains Force

The SJC has concluded—on one occasion—that a legislative delegation illegally gave away the power to formulate policy.98 In Corning Glass Works v. Ann & Hope, Inc., the challenged statute authorized product manufacturers to enter into “fair-trade” contracts with retailers that sold their products.99 These contracts mandated that retailers could not re-sell the manufacturer’s products at a price below the “fair-trade” price fixed by the manufacturer.100 In Corning Glass Works, the defendant retailer had never entered into such a contract, but a manufacturer nonetheless sought to stop that retailer from selling its products below the price established by the manufacturer in other “fair-trade” contracts.101 The retailer argued that the statute violated the nondelegation doctrine because it gave the manufacturer power [*PG119]to craft legislative policy, by determining a “fair-trade” price floor that would bind all retailers selling that manufacturer’s products.102

The court agreed, holding that “[t]here is no provision [in the statute] . . . for any policy . . . to govern the prices set,” and therefore the Legislature had not formulated the policy itself, but had improperly delegated it to the manufacturers.103 Implicitly, the court buttressed its conclusion by observing that the determination of a “fair-trade” price represented something beyond the filling in of details in order to carry out a larger policy.104 Rather, that “price-setting” was itself a policy judgment, in much the same way that the setting of tax rates reflected a judgment about how civic costs should be apportioned in Massachusetts Mutual Life Insurance Co.105 In both situations, the policy determination represented the essence of the power to make laws, and in Corning Glass Works the attempt to delegate that power could not help but violate the nondelegation doctrine.106

C.  An Additional Restriction: Protection Against Arbitrariness

By insisting that only the Legislature could formulate policy, these early court decisions largely eliminated the risk of arbitrary legislative policies, because citizens could refuse to reelect those responsible for passing arbitrary laws.107 But, since legislative delegation of policy details was acceptable, arbitrary action concerning those details remained a risk. Massachusetts courts knew that unelected recipients of delegated powers—like agencies, boards, or private citizens—were largely outside the democratic process, and therefore did not face electoral conse[*PG120]quences when they arbitrarily exercised power.108 Recognizing this problem, the courts erected obstacles to guard against arbitrariness in situations where delegations were otherwise appropriate.109

Corning Glass Works was not the first instance where this issue was addressed, but the decision is nonetheless instructive.110 Although the SJC ultimately based its holding on other grounds, the court was also troubled that the challenged statute contained “no provision for participation by any public board or officer in the process by which [the manufacturer] fixes the prices . . . nor for any policy or standard to govern the prices set . . . nor for notice, hearing, or judicial review of the prices fixed.”111 Essentially, the court seemed to be suggesting an alternative reason for its holding. Specifically, the lack of statutory standards, lack of provisions for judicial review, and unaccountability of the manufacturers involved meant that delegated powers could have been used arbitrarily by recipients.112

The SJC expounded upon these ideas three years later in Town of Arlington v. Board of Conciliation & Arbitration.113 In this case, a statute gave a three-arbitrator panel the power to resolve salary disputes between certain municipal employees and municipalities.114 The arbitration panel had the authority to select either the “last and best” salary offer from an employee organization, or from an employer town, as being more reasonable.115 That decision would then become binding upon both parties.116 Plaintiffs alleged that the statute violated the nondelegation doctrine because it gave the panel the power to decide the proper level of compensation for municipal employees, and impose that judgment upon both parties.117

[*PG121] The court held that the statute did not violate the nondelegation doctrine.118 It presumed that the statute delegated to the panel the filling in of details, rather than a substantive policy determination.119 More importantly, the court determined that the statute provided adequate safeguards that would prevent the panel from abusing the power that it had been delegated.120 Stating that “we are [concerned] with ‘the totality of the protection against arbitrariness’ provided in the statutory scheme,” the court overtly acknowledged that abuses of discretion needed to be controlled, even if the delegation was otherwise appropriate.121 Applying that standard to the facts, the court found that the board “must follow detailed procedures and is bound to apply [ten] statutory standards in reaching a decision.”122 The court concluded that “the safeguards against arbitrary action in this statute are extensive, and they provide the act with a sound constitutional basis.”123

D.  Putting It All Together: Three Nondelegation Inquiries

In reviewing these early nondelegation decisions, one can sense that the SJC knew some delegations of legislative authority were unconstitutional, but often had difficulty adhering to a consistent approach.124 Often, the court focused on the essence of what had been delegated—was it the power to make policy, or the authority to fill in details?125 At other times, the court sped through that analysis, and [*PG122]instead scrutinized the protection against arbitrariness that a given statutory scheme provided.126 In 1984, the SJC went a long way towards solving this problem by clearly articulating three inquiries to be employed by courts when reviewing delegations of legislative power.127 In Chelmsford Trailer Park, the court recognized the ambiguity surrounding the nondelegation doctrine, and attempted to clarify it.128 The SJC stated that:

No formula exists for determining whether a delegation of legislative authority is “proper” or not. Here, in order to make that determination, we undertake a threefold analysis: (1) [d]id the Legislature delegate the making of fundamental policy decisions, rather than just the implementation of legislatively determined policy; (2) does the act provide adequate direction for implementation, either in the form of statutory standards or, if the local authority is to develop the standards, sufficient guidance to enable it to do so; and (3) does the act provide safeguards such that abuses of discretion can be controlled?129

After articulating these inquiries, the court proceeded to the merits of the case, and decided that the statute in question was not an unconstitutional delegation of power.130

The Chelmsford case involved a statute giving individual municipalities power to control rent levels and evictions within mobile home parks.131 It was not disputed that the statute delegated only details concerning an already-stated policy—namely, that a local response was needed to address erratic evictions and unreasonable rents being imposed by local mobile park owners.132 Thus, the first inquiry of the newly announced test was easily answered in the negative.133 The [*PG123]more contentious allegation was the second inquiry of the new test, namely that the statute “fail[ed] to delineate sufficiently specific guidelines, standards, and procedures for the application of the by-law by the [Chelmsford] board.”134

Although the court acknowledged that the statute in question was less detailed than other rent control laws, it indicated a willingness to evaluate the statute broadly, stating that “[p]rovided that the policy and purpose of the Legislature are clearly expressed, the absence of detailed standards in the legislation itself will not necessarily render it invalid.”135 Continuing, the court observed that “‘the standards for action to carry out a declared legislative policy may be found not only in the express provisions of an act but also in its necessary implications. The purpose, to a substantial degree, sets the standards.’”136

The court then interpreted the statute as sufficiently restraining the town’s discretion.137 First, the court inferred standards from the statute’s purpose that prevented the town from establishing irrational rent levels.138 Though no specific standards in the statute addressed rent levels, a stated purpose of the statute was that “whatever adjustments are made must assure that the [trailer home park] owner will receive a ‘fair net operating income.’”139 Thus, the town was guided by an implicit standard because it could not impose a rent ceiling that would deny mobile home park owners a “fair net operating income.”140 Next, the court determined that eviction standards from other sections of the Massachusetts Code could stand in for eviction standards missing from the statute in question.141 The SJC observed that “‘[i]ndividual [*PG124]statutory provisions related to the same general area must be read ‘as a whole . . . to the end that . . . the [entire legislative program] will constitute a consistent and harmonious whole.’’”142 Applying that logic, the court found that although the challenged statute did not explicitly tell the town when eviction was appropriate, such direction could be found from other state statutes dealing with mobile home evictions in slightly different contexts.143

Thus, when answering the second inquiry, the SJC inferred standards that were otherwise lacking, and concluded that the statute did not violate the nondelegation doctrine.144 Ultimately, Chelmsford Trailer Park is most significant for its articulation of three nondelegation inquiries. Yet, the actual holding is also critical, because the SJC displayed a willingness to answer these inquiries loosely, an inclination that would continue to manifest itself in later decisions.145

E.  Recent Developments: The SJC Applies the Chelmsford Inquiries

In the years since Chelmsford Trailer Park, the SJC has not found any delegation of legislative power to be unconstitutional.146 In most instances where a delegation dispute reached the SJC, the court proceeded quickly through the Chelmsford inquiries, finding easy answers to all three questions.147 For example, in Powers v. Secretary of Administration the Massachusetts Legislature reacted to a fiscal crisis in the city of Chelsea by passing a statute establishing a “receivership.”148 In essence, the “receivership” suspended most Chelsea government powers for one year, and vested these powers in a “receiver” appointed by the Gover[*PG125]nor, who was charged with devising a long-term solution to the city’s fiscal problems.149 It was alleged that the statute violated the nondelegation doctrine because the Legislature’s power to deal with Chelsea’s fiscal crisis had been delegated to the “receiver.”150

The SJC addressed the Chelmsford inquiries one by one. In answering the first inquiry, the court found that the Legislature had delegated only the power to oversee details, and had not given away the authority to formulate policy.151 Specifically, the legislative branch had “set forth the fundamental policy decision[] that the financial situation of Chelsea is intolerable and should be improved through the imposition of a receivership,” the “receivership” duties themselves being only details.152 Moving on, the SJC found the second inquiry satisfied because the “Legislature has set forth adequate direction for the receiver’s implementation” through enumerated powers and clear objectives that provided “direction as to the manner in which the receiver shall implement . . . the . . . policy decision to improve Chelsea’s financial position.”153 Finally, the court found that the third inquiry was satisfied, because the statute as a whole “provides safeguards to control any abuses of the receiver’s discretion.”154 Such safeguards included: (1) an annual report the “receiver” was required to submit to the Legislature; (2) Secretary of Administration approval for certain “receiver” actions; and (3) the fact that the one-year term of the “receiver” could be terminated at any time for just cause.155 Most SJC nondelegation decisions have looked like Powers—the SJC answered each Chelmsford inquiry in turn, and found a delegation to be permissible.156 But, when the court has been unable to find supportive answers for all three inquiries, the SJC has followed the trend started in [*PG126]Chelmsford Trailer Park by affording a challenged statute considerable latitude.157

For example, in Blue Cross of Massachusetts, Inc. v. Commissioner of Insurance, the SJC found a delegation of power to be constitutional, even though it was not clear that the third Chelmsford inquiry could be answered satisfactorily.158 The challenged statute gave the Massachusetts Commissioner of Insurance the power to review statewide insurance company rate increases.159 Before the Commissioner could approve any rate increase, however, the statute required a finding that the relevant insurance company “‘employ[s] a utilization review program and other techniques acceptable to [the Commissioner] which have . . . a demonstrated impact on the prevention of reimbursement by such corporation[s] for services which are not medically necessary.’”160 Plaintiffs alleged that the statute delegated unfettered power to reject rate increases because the Commissioner could always claim that a company’s utilization review program was not “acceptable to him.”161

Not presented with the question of whether the statute delegated policymaking powers, the court’s analysis focused on the subject matter of the second and third Chelmsford inquiries.162 Recognizing that detailed standards to govern what the Commissioner should find “to be acceptable to him” could not be found in the statute, the court held that “[e]ven ‘very general [legislative] guides’” could replace specific standards if the overall scheme was subject to judicial review.163 Then, without discussing whether such judicial review was available, the court held that certain “general guides” allowed the statute to pass nondelegation scrutiny.164 Specifically, the SJC found “general guides” to be [*PG127]present because the Commissioner’s determination of what was “appropriate to him” would occur only after a review of existing programs already in place, and would not include the power to force companies to affirmatively undertake programs favored by the Commissioner.165 In addition, the court believed the requirement that the program have a “demonstrated impact” on the prevention of certain economic costs guided the Commissioner’s review of existing programs.166 At the same time, the SJC completely glossed over any meaningful discussion of judicial review or other safeguards.167

Similarly, in Tri-Nel Management, Inc. v. Board of Health, the SJC afforded substantial deference to a statewide statute that gave municipal boards of health the power to “make reasonable health regulations.”168 The plaintiffs in Tri-Nel Management, Inc. alleged a violation of the nondelegation doctrine after the Barnstable Board of Health used the authority delegated by the statute to forbid smoking “in all food service establishments, lounges, and bars.”169

After setting out the three Chelmsford inquiries, the SJC easily answered the first, concluding that the delegating statute had not given local health boards the authority to formulate policy.170 The court then decided that the second inquiry was also satisfied because the requirement that any local regulation “address the ‘health’ of the community and . . . be ‘reasonable’” provided sufficient guidance.171

In answering the third inquiry, the court largely avoided a discussion of explicit safeguards. The court noted that local health boards had historically been given control over health concerns, and that the Legislature itself had dealt extensively with such matters.172 Then the court surmised that such “limitations on content and reasonableness sufficiently demarcate the boundaries of regulatory discretion so that the act provides safeguards to control abuses of discretion.”173 The [*PG128]court also mentioned briefly that the standard safeguard of declaratory relief remained available for those claiming that a board had exceeded “proper boundaries.”174

III.  Analysis: Does the Massachusetts ACEC Program Represent an Unconstitutional Delegation
of Legislative Power?

Although the Massachusetts Supreme Judicial Court (SJC) continues to insist that certain delegations of legislative power could run afoul of the state constitution, no delegation of legislative power has been struck down in Massachusetts over the past thirty years.175 One could interpret those three decades of inertia as a sign that the Massachusetts nondelegation doctrine—like the federal nondelegation doctrine before it—has been reduced to irrelevance.176 Yet, that dramatic conclusion is probably premature. The remainder of this Note will attempt to identify the special circumstances which might compel the SJC to revive the nondelegation doctrine, with particular focus on whether a judicial challenge to the Areas of Critical Environmental Concern (ACEC) program could precipitate that revival.

A.  Current Status of the Massachusetts Nondelegation Doctrine

A survey of Massachusetts nondelegation caselaw reveals that the Chelmsford inquiries are the accepted “test.”177 Moreover, these inquires seem to represent the culmination of judicial notions that had existed for decades.178 Specifically, the first Chelmsford inquiry appears to em[*PG129]body the “policy or details” debate found in the Commissioner of Revenue v. Massachusetts Mutual Life Insurance Co. line of cases.179 Conversely, the second and third inquires seem to encapsulate the “totality of protection against arbitrariness” goal of Town of Arlington v. Board of Conciliation & Arbitration.180 Nevertheless, the court has not explicitly clarified how these three inquiries work in conjunction with each other.181 Do they represent a mandatory three-part test, or are they simply guideposts for courts to use while reviewing delegations of power?

In short, the inquiries seem to be both. The inquiries themselves, as well as specific SJC decisions, support the proposition that the first Chelmsford inquiry represents a “threshold determination”—if a delegation cannot pass first-inquiry scrutiny, the delegation fails.182 The second and third inquiries appear to operate as more of a “guide”—questions for the SJC to ponder as they attempt to determine whether delegated powers could be used arbitrarily.183

B.  Analyzing the Act Through the First Chelmsford Inquiry

1.  The First Inquiry: A “Threshold Determination” of Constitutionality

In the years since Chelmsford, the SJC has not encountered a statute that delegates the power to formulate legislative policy. In other words, the first Chelmsford inquiry has never been answered affirmatively.184 Nevertheless, when confronted with a statute that does delegate lawmaking powers, it is conceivable that the SJC could break a thirty-year trend and find a violation of the nondelegation doctrine without having to answer the second or third inquiries.185

[*PG130] The most obvious basis for this conclusion comes from the literal language of two Chelmsford inquiries. The first inquiry attempts to discover the nature of a delegation, asking whether the delegation involves a “fundamental policy decision” or the “implementation of legislatively determined policy.”186 The second inquiry scrutinizes the delegating statute to see if “adequate direction for implementation” can be found.187

The use of the word “implementation” in both inquiries is telling. Only if the answer to the first inquiry is “no”—because the delegation involves implementation of policy—can the SJC answer the second inquiry, dealing with whether direction for such implementation is present.188 Conversely, if the answer to the first inquiry is “yes”—because the Legislature delegates policymaking power—the second inquiry is irrelevant, because recipients of delegated powers would be making policy, not implementing it.189 Therefore, the first inquiry most closely resembles a “threshold determination.”

There is another, more basic reason that the first inquiry looks like a “threshold determination.” When reviewing the nature of legislative delegations, the SJC has never disputed the turn-of-the-century notion that “[t]he General Court may not delegate the authority to make laws.”190 More importantly, the SJC has always equated the essence of this lawmaking power with the authority to formulate substantive policy.191 For instance, in Massachusetts Mutual Life Insurance Co., the SJC opined that the ability “to enact substantive measures” was equivalent to “legislative authority,” and could not be delegated.192 Thus, if the lawmaking power and the authority to formulate policy are one and the same, then neither may be delegated.193 Since a re[*PG131]sponse of “yes” to the first Chelmsford inquiry means that the power to formulate policy has been given away, it weeds out the exact type of delegation that the SJC has never permitted, making what appears to be a “threshold determination” of appropriateness.194

2.  Plain Statutory Language: Indications That the Act Cannot Pass the “Threshold Determination”

The “Act Establishing an Executive Office of Environmental Affairs” (the Act) delegates power to EOEA through two separate statutory provisions.195 The first provision, codified in the Massachusetts General Laws, gives EOEA power to develop policies regarding the acquisition, protection, and use of ACECs.196 The second provision—located near the end of the Act, but not codified—gives EOEA authority to identify and designate ACECs.197

The literal language of the first provision suggests that judicial review of the Act could spark a revival of the nondelegation doctrine. More precisely, this provision makes itself a candidate to fail the “threshold inquiry,”198 by stating that EOEA shall “develop statewide poli[*PG132]cies regarding [ACECs] . . . .”199 Thus, the Legislature’s own words indicate that it intended to delegate the authority to develop statewide ACEC policies to EOEA, supporting the inference that the Act did not formulate those policies itself.200

Moreover, when one puts the provision in context by comparing it to other powers that the Act delegates to EOEA, the potential for a nondelegation violation seems even stronger.201 Other grants of power in the Act deal with very specific details of larger state policies and only give EOEA authority to aid, promote, encourage, analyze, or monitor those larger activities.202 In short, those other grants of power seem to delegate control over the details of legislatively stated policies, while by comparison the ACEC provision looks and feels more like a broad delegation of authority to formulate substantive policy from scratch.203

3.  Comparisons to SJC Precedent: Further Clues That the Act Cannot Pass the “Threshold Determination”

A court might also conclude that the Act delegates policy-formulating powers to EOEA because the powers delegated strongly resemble what the SJC has classified as “law-making powers” in other nondelegation decisions.204 In general, these decisions seem to suggest that policy formulation, at its very core, involves the decision to impose burdens upon some citizens so that benefits can be bestowed upon other citizens.205 Put slightly differently, the essence of what cannot be delegated is the responsibility to balance competing interests and to decide whether the benefits of a proposed policy offset the costs.206

As discussed in Part II of this Note, most SJC nondelegation decisions have involved statutes that performed this balancing of benefits and costs themselves.207 For example, the statute in Massachusetts Mu[*PG133]tual Life Insurance Co. addressed the contents of annual statements, which determined the amount of excise tax owed by Massachusetts insurance companies.208 Thus, the subject matter of the statute demanded a balancing of the economic benefit to Massachusetts—as the recipient of tax revenues—and the monetary cost imposed on state insurance companies paying excise taxes.209 The SJC held that the Legislature itself balanced those interests when it decided that insurance companies should be forced to pay one percent of their annual gross investment income as an excise tax.210 For the court, the selection of a specific rate showed that the Legislature had placed a “fulcrum” that balanced benefit to the state and cost to the insurance companies at an excise tax rate of one percent.211

In another decision, the SJC determined that a statute had shirked this responsibility by delegating this critical balancing of interests to another entity.212 In Corning Glass Works v. Ann & Hope, Inc. the statute dealt with the setting of “fair-trade” price floors that applied to the resale of certain products.213 This practice bestowed benefits upon product manufacturers by helping their trademarked products maintain higher retail values.214 At the same time, it imposed burdens on consumers and retailers—in the form of higher product prices and the elimination of effective intra-brand price competition.215 Implicitly, the SJC recognized that a balance between these interests would be struck by placing a “fulcrum” at the “fair-trade” price that would prevent excessive benefits or burdens from being felt by either side.216 But, since the statutory scheme in question gave manufacturers the right to balance these competing interests by setting the “fair-trade” price, the court held that the Legislature had delegated the power to formulate policy, thereby violating the nondelegation doctrine.217

[*PG134] In light of this precedent, a court charged with reviewing the Act would most likely attempt to determine whether the Legislature delegated the authority to balance ACEC benefits and costs to EOEA. Such a court might identify the protection of environmentally endangered areas resulting from the designation and intense regulation of ACECs as a relevant benefit.218 The economic losses felt by the owners of ACEC-designated lands represent the pertinent costs, because ACEC regulations restrict possible uses of their property, and make it more expensive for them to develop that property.219

Taking the next step, the reviewing court could identify two fulcrums that are capable of balancing those interests. The first would control how ACECs are regulated—by placing a fulcrum at the point where regulations are potent enough to realize the benefit of preserving critical land, without becoming so burdensome that they strip land of most monetary value to its owner.220 The second would identify which lands are designated as ACECs—thereby locating a fulcrum at the point where environmentally critical attributes of land become so compelling that the burden of ACEC regulation should be placed on the land and its owner.221

It is possible to conclude that the Act delegates the power to place both of these fulcrums to EOEA.222 Specifically, EOEA has the authority to determine the content of ACEC regulations as the Act states that “ [EOEA] . . . shall . . . develop statewide policies regarding the acquisi[*PG135]tion, protection, and use of [ACECs] . . . .”223 Moreover, EOEA also has authority to decide which lands will be designated as ACECs.224 Section 40(e) of the Act indicates that EOEA should “identify and designate” ACECs where uncontrolled development would result in irreversible damage to the environment, and lists nine types of areas that might be included.225 More than any other provision, this one might be interpreted as setting a fulcrum that balances benefits to the environment and costs to landowners at the point where development of land would cause irreversible harm to environmental features.226

Nevertheless, a “catch-all” clause later in that same provision seems to militate against this conclusion.227 Specifically, the latter clause states that ACECs might include “such other areas as the [EOEA], after holding public hearings, may determine to be of critical environmental concern . . . .”228 Therefore, this “catch-all” clause eradicates the irreversible damage provision by placing the power over locating the second fulcrum squarely in EOEA hands.229 Simply put, it gives EOEA permission to ignore all the other suggestions in the provision, and determine for itself which lands will become ACECs, so long as it holds a public hearing.230

[*PG136] In sum, any court reviewing the Act could conclude that the Act bears more resemblance to the statute in Corning Glass Works, where policy formation was delegated, than the statute in Massachusetts Mutual Life Insurance Co., where the statute made that determination for itself.231 Specifically, the determination of how to regulate ACECs, and the decision of which lands to designate as ACECs, represent the fulcrums in the ACEC situation.232 It would appear that the Act gives both of these powers to EOEA, much like the statute in Corning Glass Works gave the power to set a “fair-trade” price to manufacturers.233 Moreover, unlike the statute in Massachusetts Mutual Life Insurance Co., where a specific tax rate of one percent was set, the Act does not seem to specifically provide any fulcrums.234

Ultimately, the Act might embody the special type of circumstance that would compel the SJC to revive the nondelegation doctrine. The court could use the plain language of the Act and comparisons to SJC precedent to decide that the power to balance competing interests in the ACEC context is delegated to EOEA.235 Based on that conclusion alone, the court could answer “yes” to the first Chelmsford inquiry, and hold that the ACEC program was unconstitutional from its inception because the Act impermissibly delegated legislative authority.236

[*PG137]C.  Analyzing the Act Through the Second and Third Chelmsford Inquiries

1.  The Second and Third Inquiries: “Guides” That Help Determine Whether Delegations Protect Against Arbitrariness

In the years since Chelmsford Trailer Park, the SJC has not encountered a set of facts that has compelled it to find a violation of the nondelegation doctrine through use of the second and third Chelmsford inquiries.237 Nevertheless, even when a delegation survives “threshold inquiry” scrutiny, it still must pass some type of second- and third-inquiry scrutiny.238

Although the SJC has never said so, these second and third inquiries do not appear to represent rigid requirements, but rather seem more like “guides” that the SJC uses to help alleviate larger nondelegation concerns. Evidencing this flexibility, Massachusetts nondelegation decisions have never found second-inquiry standards to be lacking, because the SJC has: (1) substituted “general guides” for actual standards; (2) inferred standards from the overall purpose of a statute; and (3) borrowed standards from other statutes dealing with similar subject matter.239

Moreover, when answering the third inquiry, the SJC has occasionally overlooked a lack of explicit safeguards.240 For instance, explicit standards were never mentioned in Blue Cross of Massachusetts, Inc. v. Commissioner of Insurance, but a delegation was nonetheless declared constitutional because general guides prevented the recipient of delegated power from enjoying “unfettered discretion.”241 Almost identically, the SJC did not find explicit safeguards in Tri-Nel Management, Inc. v. Board of Health, but stated that “[i]n regard to the third consideration . . . limitations on content and reasonableness [*PG138]sufficiently demarcate the boundaries of regulatory discretion so that the act provides safeguards to control abuses of discretion.”242

These patterns lead to the conclusion that the SJC does not insist upon a rigid application of the second and third Chelmsford inquiries. More precisely, since the SJC has found second-inquiry standards in almost any situation—by using general guides, inferred standards, or borrowed standards—it is probable that future delegations will not automatically fail simply for a lack of explicit standards.243 Moreover, because the SJC has occasionally accepted delegations lacking explicit third-inquiry safeguards, future delegations without explicit safeguards are unlikely to be summarily declared unconstitutional.244 Thus, the question remains what would compel the SJC to conclude that a delegation fails second- and third-inquiry scrutiny?

In all likelihood, the SJC would use the second and third inquiries to revive the nondelegation doctrine only if the challenged delegation did not contain a mixture of standards and safeguards sufficient to prevent delegated powers from being used arbitrarily. Some commentators offer support for this proposition by suggesting that a focus on preventing arbitrariness is the nondelegation “trend” at the state level, because many state judiciaries “uphold[] broad delegations when procedures and safeguards are in place to guard against the arbitrary exercise of . . . power.”245 More importantly, there are clues that the SJC has been influenced by this “trend.” In pre-Chelmsford precedent that dealt with standards and safeguards, the SJC focused intently upon the “‘totality of the protection against arbitrariness’ provided in the statutory scheme.”246 The Chelmsford decision itself expressed a desire to protect citizens from “arbitrary” actions.247 In addition, even after the formal articulation of the Chelmsford inquiries, [*PG139]the SJC has at times remained wary of the “arbitrary exercise of authority” in delegation situations.248

Perhaps most importantly, the Chelmsford inquiries would still function coherently if the second and third inquiries actually served as interrelated “guides” that strive towards protecting against arbitrariness. Specifically, the first Chelmsford inquiry could be thought of as a filter—getting rid of delegations that are clearly impermissible because they give away the very essence of legislative power.249 The second and third Chelmsford inquiries, on the other hand, would be more like complementary “guides” that comb delegations of power passing through the initial filter for other defects—like a lack of standards or a lack of safeguards—that could lead to arbitrary results.250

2.  Do Standards and Safeguards in the Act Work Together to Protect Against Arbitrariness?

Thus, in order for judicial review of the Act to precipitate a nondelegation doctrine resurgence using the second and third inquiries, a search for standards and safeguards in the Act would have to yield an overall mixture of the two which fails to protect against arbitrariness. Given the SJC’s willingness to conduct a broad search for second-inquiry standards, it is extremely likely that a reviewing court would [*PG140]find some level of statutory standards in the Act.251 More specifically, standards to govern the content of ACEC regulations could be gleaned from a plausible purpose of the Act, which is to “protect” ACECs from “irreversible damage.”252 Moreover, standards to govern ACEC designation could take the form of nine “suggestions” that the Act offers, listing critical land attributes that might trigger ACEC designation.253

However, a court might have more trouble finding explicit safeguards in the Act. In decisions where the SJC has easily found safeguards, there were usually mechanisms put in place by a statute that allowed the Legislature to closely monitor delegated powers.254 As an example, in Powers v. Secretary of Administration the SJC found such mechanisms because that recipient was required to submit an annual report to the Legislature, and because the recipient was only appointed to a one-year term that could be ended at any time.255 In the ACEC context, a court might find that the Act imposes restraints on EOEA. In a general sense, it is true that the EOEA Secretary serves at the pleasure of the Governor, that EOEA is required to prepare an annual report of its activities, and that EOEA regulations and decisions are subject to administrative review.256

Conversely, a court could also be skeptical that these safeguards actually prevent ACEC-related abuses of discretion. The ACEC program represents but a fraction of EOEA’s activities, and the lack of safeguards specifically drafted to regulate the ACEC program could preclude the monitoring of delegated powers to the extent possible in Powers.257 For example, the Act does not require EOEA to file a report with the Legislature when an ACEC designation is made, nor does it provide an affirmative mechanism for the Legislature to monitor ACEC decisions, nor does it provide a special judicial remedy for those who feel aggrieved by EOEA’s ACEC decisions.258 At the very least, the presence of safeguards in the Act seems debatable.

[*PG141] In order to predict whether a court would find this mix of standards and safeguards to be sufficient, it is helpful to compare the Act to situations where the SJC has evaluated delegations with similarly questionable safeguards. Any reviewing court would find it important that the SJC has found protection against arbitrariness in such instances when meaningful limits were placed on how recipients could utilize delegated powers.259 For example, in Blue Cross of Massachusetts, Inc. the SJC found that a delegation of power to the Commissioner of Insurance was acceptable, even though the statute lacked formal safeguards.260 The delegated power in question was the Commissioner’s authority to approve insurance rate increases after finding that certain programs utilized by insurance companies were “acceptable to him.”261 The court seemed to believe that meaningful limits were placed on the Commissioner’s power because he could only review company programs and suggest alternatives—and could not force companies to initiate one program or another.262

Likewise, in Tri-Nel Management, Inc. the SJC found meaningful limits placed upon delegated powers, even though no formal safeguards were present.263 There, a local board of health had been delegated the power to adopt “reasonable health regulations,” and had used that power to ban smoking in all local restaurants.264 The court concluded that the local Board of Health could only pass regulations having to do with the health of the community, and any regulation it passed would have to be reasonable.265 Perhaps more importantly, the SJC was comforted by the fact that local boards had a long history of regulating local health matters, and that the Legislature itself had extensively dealt with statewide health matters.266 The court seemed confident that this long tradition of health regulation placed a meaningful limit on the type of regulation that the local Board could impose.267

[*PG142] In the ACEC context, it is not as easy for a court to conclude that the Act places meaningful limits on what EOEA is able to do with its delegated authority. It is probably true that EOEA is somewhat restrained when it determines the content of ACEC regulations. A court could find that those regulations would have to be reasonable, and that the long tradition of state environmental statutes and regulations provide a model for the type of ACEC regulation that is permissible.268 These limits seem similar to those found in Tri-Nel Management, Inc., because reason and regulatory precedent restrain the recipient of power.269

Notwithstanding these observations, the Act’s delegation of power to designate ACECs is probably different. In both Blue Cross of Massachusetts, Inc. and Tri-Nel Management, Inc., meaningful limits meant that the recipient of delegated powers could not do certain things.270 By comparison, EOEA has far more discretion than the recipients of power in Blue Cross of Massachusetts, Inc. and Tri-Nel Management, Inc. Specifically, EOEA is not limited to the “review” power found in Blue Cross of Massachusetts, Inc., because the agency has the affirmative power to decide for itself which areas will become ACEC-designated.271 Moreover, though presumably limited by reason, EOEA is not limited by the regulatory tradition found in Tri-Nel Management, Inc., because state environmental laws—both before and after the Act—have never addressed anything quite like the ACEC designation power possessed by EOEA.272

In addition, a court might also find EOEA’s wide-ranging latitude to designate ACECs troubling. The Act places few restraints on the process that EOEA can use to designate ACECs, puts no limit on the amount of state land that EOEA can designate as an ACEC, and voices no opinion on how frequently EOEA should designate ACECs.273 These realizations could be enough to justify a conclusion that the nondelegation doctrine should be mobilized to strike down the Act, [*PG143]because its mixture of standards and safeguards does not protect against arbitrariness.274

3.  The ACEC Program in Practice: Evidence of Arbitrary ACEC Designations

Even if a court remained convinced that the Act’s mixture of standards and safeguards protect against arbitrariness on their face, the real-life example of what EOEA has done with the ACEC program could persuade otherwise. Put another way, where there is smoke, there is usually fire—if a court were persuaded that ACEC designations are arbitrary in practice, it could logically conclude that the Act does not protect against arbitrariness.

In fact, an alert court might detect arbitrariness from a thorough examination of areas that have been designated as ACECs in the years since the program began.275 Although there are now ACECs in seventy-five Massachusetts cities and towns, covering almost a quarter of a million acres, it is arguable that some of the more environmentally critical areas of the state are not ACECs.276 For example, Nantucket and Martha’s Vineyard—the largest islands in the state—have not been designated as ACECs.277 In addition, the Quabbin Reservoir—one of the largest man-made reservoirs in the world—has not been designated as an ACEC.278 Arguably, a rational program would designate these three areas as ACECs, based on the underlying notion that ACECs are meant to be areas “where unique clusters of natural and human resources exist and which are worthy of a high level of concern and protection.”279 Thus, a court might observe that ACEC designations do not strictly correspond to all areas in the state that have critical environmental attributes, raising the possibility that the selection of ACECs is somehow arbitrary.

[*PG144] Digging deeper, a court might find an explanation for such arbitrariness from the process that is used to designate ACECs.280 Although the EOEA Secretary makes final designation decisions, an area must be nominated before it can be designated. Therefore, nominators are responsible for selecting potential ACECs from all possible state lands.281 Though any number of public officials can nominate land for ACEC consideration, it is also true that any ten Massachusetts citizens may do so.282 Further, in order for these nominators to prove that land is eligible for ACEC consideration, they must only show that the parcel in question contains vague environmental “features” from four out of eleven groups crafted by EOEA’s ACEC regulations.283 As an example of how easy it is for land to become eligible, a court could note that a hypothetical tract of land would be eligible for ACEC nomination if it merely contained: (1) a wet meadow; (2) a stream; (3) land of agricultural productivity; and (4) a natural area.284 With the bar for ACEC eli[*PG145]gibility set so low, it is entirely possible that ten Massachusetts citizens could arbitrarily nominate areas that hold special meaning to them, even if those lands were not objectively critical to the rest of the state.285 In addition, with suburban sprawl becoming an increasing concern in Massachusetts, it is possible that citizen-nominators might be motivated more by a desire to halt development in their town than by concern for the environment when nominating ACECs.286

Even if the nomination process were perfect, a court might still be concerned by the ease with which the EOEA Secretary can accept nominations, and designate an area as an ACEC. First, a public hearing is required, though there is nothing to prevent an EOEA Secretary from ignoring opposition to nominations.287 In fact, an attendee at one such hearing made the following observation after the December 2002 ACEC designation:

I’m sure it has come as no surprise to anyone who sat through the . . . ACEC hearings that [EOEA] Secretary Robert Durand has approved these designations. . . . If I thought this issue was going to receive a fair review, I was sadly mistaken. Instead, I sat listening to countless ACEC supporters extolling the virtues of Mr. Durand and vice versa, each insisting that the other had done so much more to further the cause. In contrast, Mr. Durand sat in quiet conversation with an associate [*PG146]while an opponent to these designations voiced his concerns.288

After the public hearing, the EOEA Secretary must consider nine factors in deciding whether to designate nominated lands as an ACEC, though the “strong presence of even a single factor may be sufficient for designation . . . .”289 Thus, in order to designate an ACEC, the EOEA Secretary is only required to hold a public hearing and conclude that one compelling reason for designation is present.290 A reviewing court might also note that the EOEA Secretary has no incentive to seriously consider rejecting an ACEC nomination, because neither the Act, nor ACEC regulations, places a cap on the total amount of land in the state that can be designated as an ACEC.291

Thus, in looking at the real-life administration of the ACEC program, one could observe that current ACECs do not necessarily represent the most critical environmental areas in the state.292 It is also possible that the designation process encourages that arbitrary result by permitting as few as ten citizens—whatever their motivation—to nominate land.293 The conclusion that the EOEA Secretary is not forced to correct this arbitrariness would also be justified, because only a low level of review is required before designation, and because there is relatively little incentive for EOEA to reject nominations.294 In sum, a court could reach the conclusion that the overall ACEC designation process is characterized by a degree of arbitrariness.

[*PG147] Thus, it seems possible that a court charged with reviewing the Act could conclude that the ACEC program presents exactly the risk of arbitrariness that the second and third Chelmsford inquiries were designed to prevent. The lack of explicit safeguards in the statute itself, the absence of meaningful limits placed on EOEA’s power, and the arbitrary administration of the real-life ACEC program supports this assertion.295 On these bases, a court might very well conclude that the Act fails second- and third-inquiry scrutiny, and therefore violates the Massachusetts nondelegation doctrine.296

Conclusion

Without question, delegations of legislative power are necessary to make government work. It is simply unrealistic to believe that legislatures can effectively react to our complex and ever-changing society with statutes that address every minute detail across an infinite spectrum of policy situations. Thus, allowing delegations of legislative power is often appropriate and efficient. Yet, these delegations can only be so broad—federal and state nondelegation doctrines draw lines in the sand that legislative delegations cannot cross. In Massachusetts, one might be tempted to conclude that this line in the sand no longer exists, since the nondelegation doctrine has not been used to invalidate a statute in thirty years. Nevertheless, this Note has argued that the nondelegation doctrine could enjoy a resurgence if the judiciary were confronted with particular types of delegations.

More specifically, this Note has fleshed out the current status of the Massachusetts nondelegation doctrine, in an effort to determine what sort of delegation might compel the SJC to revitalize the doctrine. Generally speaking, delegations of legislative power in Massachusetts must survive the framework of scrutiny set out by the SJC in Chelmsford Trailer Park, Inc. v. Town of Chelmsford. This framework consists of three “inquiries” that the SJC uses to structure its nondelegation analysis. Although the SJC has historically given challenged statutes considerable deference when engaging in these inquiries, it seems likely that the inquiries could be mobilized to invalidate future delegations in two specific situations. First, it is possible that the SJC could someday use the first Chelmsford inquiry as a “threshold determination” to invalidate a delegation of power that gives away the basic responsibility to balance the benefits and costs of a legislative policy. [*PG148]In the alternate, it seems equally possible that the SJC could use the second and third Chelmsford inquiries to invalidate a statutory delegation where the overall mixture of standards and safeguards poses an unacceptable societal risk, because it does not sufficiently protect against arbitrary actions by recipients of power.

This Note has also postulated that the legislative enactment giving rise to the ACEC program might represent the type of delegation that could spark a revival of the nondelegation doctrine. In 1974, when Massachusetts legislators drafted the Act, they delegated broad power to administer the ACEC program to EOEA. As matters stand in 2003, EOEA oversees an ACEC program that regulates nearly a quarter of a million acres across seventy-five Massachusetts municipalities, and in some instances, places land-use and development restriction on the vast majority of all land in a particular community.

Should the ACEC delegation be challenged in a Massachusetts court, it would be a candidate for invalidation. First and foremost, it is far from certain that the Act can pass the “threshold determination” represented by the first Chelmsford inquiry. More precisely, a court could easily conclude that the Act gives EOEA the power to balance societal benefits and costs—as represented by the power to craft ACEC regulations, and by the untrammeled authority to determine which state lands should become ACEC-designated. Moreover, it is also unclear that the Act contains a mixture of standards and safeguards sufficient to survive second- and third-inquiry scrutiny in a Chelmsford analysis. Especially in the designation process, the risk of arbitrariness seems great, because the Act lacks explicit safeguards, the power delegated to EOEA is not meaningfully limited, and the real-life ACEC program is plagued by arbitrariness.

In all probability, the demise of the Massachusetts nondelegation doctrine has been greatly exaggerated. Despite the reluctance of the judiciary to strike down statutes using this doctrine over the past thirty years, there are certain types of delegations that could precipitate a rebirth of the doctrine. Unless the Massachusetts Legislature revamps the ACEC program in an effort to take some power back from EOEA,297 the statute giving birth to that program will remain a candidate to lead such a resurrection.

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