The Massachusetts Environmental Policy Act (MEPA) Office in the Executive Office of Energy and Environmental Affairs (EOEEA) has floated two straw proposals (available here) outlining conceptual frameworks to update the 2021 MEPA Interim Protocol on Climate Change Adaptation and Resiliency (Resiliency Policy) and the 2010 MEPA Greenhouse Gas (GHG) Emissions Policy and Protocol. The existing Resiliency Policy requires that Environmental Notification Forms (ENF) include information on adaptation strategies to mitigate climate risk to projects, while the GHG Policy provides guidance for preparing GHG emissions analyses in connection with Environmental Impact Reports (EIR). Public comments on each of the straw proposals are due by September 16, 2024. Upon review of the comments, the MEPA Office will issue the complete text of updated policies for an additional round of public comments. The anticipated effective date of the two policies’ updates is the winter or spring of 2025.

Climate Resiliency Policy Proposal

The Resiliency Policy was created to better assess the potential impact of extreme weather and climate change on development projects that are subject to MEPA. After reviewing project data collected since the Resiliency Policy went into effect three years ago, the MEPA Office is now seeking to strengthen the Policy. Potential changes include (i) updates to the ENF form to provide more information on climate risk and mitigation and (ii) requirements for EIRs to include additional analysis to evaluate and mitigate climate-related environmental harm. Under the straw proposal, all new projects filed with the MEPA Office will continue to be required to submit a standard output report generated from the Massachusetts Resilience Design Tool (Resilience Tool), a custom software that creates automated projections of climate impact and recommends best practices for development. In addition, the ENF or Expanded Environmental Notification Form (EENF) for new projects must discuss the project’s climate resiliency. The ENF template will be revised to include:

• Identification of Federal Emergency Management Agency (FEMA) flood zones and Base Flood Elevations (BFE), if established;
• Useful life of the project (user input);
• Climate hazard exposure score and key scoring rationale (from the Resilience Tool’s output report);
• Asset risk rating, planning horizons, and return period recommendations (a metric used to estimate the frequency of the occurrence of natural disasters) (from the output report) for the Project’s “primary” assets;
• Discussion of whether the project is anticipated to be consistent with the Tool’s recommendations; and
• Descriptions of resiliency measures incorporated into the project.

Additional analysis will be required for EIRs, which will aim to address whether a project is consistent with Resilience Tool recommendations. Project proponents will need to first consult numeric values from the Resilience Tool. However, they may use additional site-specific methodology to provide an alternative analysis if they are able to justify why a site-specific approach is needed and demonstrate use of the best available data. If a project does not meet Resilience Tool recommendations, project proponents will need to explain whether alternative designs and locations were considered for the project, what flexible adaptation strategies will be implemented, and how the project will comply with local and state mandates. Proponents will be directed to consult best practices described in the ResilientMass Action Team (RMAT) Climate Resilience Design Guidelines, a document that provides guidance on how to implement recommended standards, to assess the criticality and useful life of a project. The Secretary of the EOEEA may require revisions of an output report at her discretion.

The straw proposal calls for EIRs, at minimum, to analyze the following: elevation above water levels of buildings and infrastructure, stormwater sizing, and ability to withstand extreme heat. Natural resource projects will need to discuss ecosystem benefits. In each analysis, the Resilience Tool recommendations will be used for guidance, and projects that do not comply with those recommendations must provide justification for their plans. The elevation category applies to new or substantial improvements to any buildings or facilities and above-ground infrastructure. The stormwater sizing analysis applies to new or significant improvements to stormwater management systems. The extreme heat category mandates a report on the anticipated increase in the number of days with temperatures over 90° under projected future climate conditions, including ways in which a project might reduce extreme heat risks, implement low-impact development strategies (LID) strategies, and increase tree planting or cooling spaces. In specific cases, the EIR scope might also require analysis of other factors such as on- and offsite flood impacts, sizing of culverts, and coastal erosion rates. Best practices to be employed in the analysis would include using a 40 to 60-year lifespan for hard structures and assigning most assets a medium or high criticality.

The straw proposal applies the climate resiliency analysis requirements to all EIRs, whether mandatory or discretionary. Notices of Project Change (NPC) will require submission of a climate output report. Moreover, projects subject to Special Review Procedures (SRP) may be required to conduct a resiliency analysis at the Secretary’s discretion. Notably, under a “de minimis” exception analysis will not be required if a project is “not exposed” to any climate parameter.

Greenhouse Gas Emissions Policy Proposal

The current MEPA GHG Policy provides guidance on how a project’s GHG emissions should be calculated in an EIR in order to evaluate mitigation of potential climate impacts. The EIR must calculate both estimated GHG emissions for a project baseline and estimated emissions reductions compared to the baseline due to mitigation measures for various project alternatives. Review of stationary sources must quantify energy use and associated GHG emissions from new buildings with the baseline case reflecting construction in accordance with the standard Massachusetts building code. Mitigation is expressed as a percentage improvement over building code requirements. Where applicable, emissions from industrial processes also need to be identified. Review of mobile sources must be based on a traffic study quantifying estimated vehicle miles traveled (VMT) and discuss mitigation measures to be taken. Other sources of GHG emissions might include a large amount of forest or land clearing, construction activity, or other large land uses. All projects subject to the policy must file a GHG self-certification with the MEPA Office confirming completion of required mitigation.

The straw proposal contemplates updates for analysis of a project’s stationary sources, mobile sources, land alteration, and carbon emissions impact. For stationary sources (buildings), the straw proposal suggests various potential updates to enhance overall energy efficiency for Massachusetts projects. First, the MEPA review process would be simplified by creating review “opt-outs” for projects that commit to MEPA-recommended best practices, whereas all other projects would have standard reviews requiring full GHG analysis. The recommended best practices will primarily align with the GHG reduction strategies of the 2023 Stretch Energy and Municipal Opt-In Specialized Building Codes. Second, mitigation commitments will be expressed as a percentage better than legally mandated codes with new metrics developed to show building performance improvements. Finally, the methodology used to consider energy efficiency will now use the context of a thirty-year look ahead period rather than improvements over a single year. By considering expected future reductions in GHG emissions from the electric grid, the EIR analysis can more fully capture the benefits of electrification and other GHG mitigation for individual projects.

Regarding mobile sources, GHG Policy updates include technical edits to align with existing practice based on current traffic study methodology. Currently, projects need to compare only the GHG emissions of a project build without mitigation scenario versus those emissions if mitigation efforts were taken. The straw proposal adds two new comparisons: (1) comparing the existing GHG emission levels to future GHG levels without the project; and (2) comparing the future GHG levels without the project to the future GHG levels if the project were built. Lastly, the GHG updates for mobile sources change the methodology for reporting of VMT to facilitate tracking the state’s progress towards the Massachusetts Clean Energy and Climate Plan (CECP) goals, implementing a standard methodology using publicly available mapping resources and providing guidance on mitigation strategies.

For land alteration, the straw proposal recommends eliminating the numerical acreage threshold currently used to trigger the GHG analysis and instead requiring the analysis for all projects that meet or exceed any MEPA land alteration threshold. In addition, the proposed updates include the development of carbon accounting methodology to be used to estimate GHG impacts of forest conversion. For example, the MEPA Office will establish a standard methodology by using publicly available mapping resources and will provide mitigation options such as reuse of wood products, tree planting programs, and heat reduction strategies. The proposal also suggests the creation of a mitigation fund to offset carbon impacts of tree clearing. Ultimately, the GHG Policy land alteration updates aim to add 64,400 acres of new tree cover and conserve 40% of Massachusetts lands and waters permanently.

The straw proposal also focuses on understanding the social cost of carbon which is an estimate of the monetary costs of environmental damage by each additional ton of carbon emissions. The proposed GHG Policy would recommend that the MEPA Office follow the U.S. Council on Environmental Quality (CEQ) in recent National Environmental Policy Act (NEPA) guidance to require Social Cost of Carbon (SC-C) analysis in environmental reviews at the MEPA Secretary’s discretion on a case-by-case basis.

The comment period on both straw proposals remains open through September 16. Comments may be submitted to the MEPA Office at this link.