Arguments Against Holtec's Application to Modify Its Surface Water Discharge Permit
A Commented I Submitted on Aug. 31st to MassDEP Regarding Pilgrim Nuclear Power Station
[Readers, I submitted the following comment on August 31st to the Massachusetts Department of Environmental Protection in opposition to Holtec’s application to modify its surface water discharge permit to allow the discharge of approximately 1.1 million gallons of radioactive wastewater from Pilgrim Nuclear Power Station into Cape Cod Bay as part of the plant’s decommissioning process.
This is an extremely long — 72 pages double-spaced, with over 120 footnotes — document laying out a number of arguments against Holtec’s application. While I recognize this is long, I thought it important to make scholarly arguments, at length, in this matter, both to MassDEP and the general public. It is too long to fit in an email, and you may need to open it in its own web-browser, or find it at plymouthcountyobserver.substack.com. I have corrected any grammatical, spelling, formatting, and other errors I have found. Portions of the sections on legal precedents and on regulatory law have been published in this publication in the past, and similar arguments have been made here as well, but the majority of this is new work. For whatever reason, the Substack word processing program has some difficulty formatting certain footnotes over the number 100 (e.g., “108” is rendered “10” over “8”; there doesn’t seem to be anything I can do about it, so I do apologize for that).
The period for comment closed on August 31st at 5 pm, and it will likely take several weeks for MassDEP to read all the comments.
Apologies that I have been unable to get this out sooner; I had to redo all of my footnotes manually on Substack, and this took quite a long time. Indeed, the initial writing took a long time. As always, paid subscriptions help keep this publication afloat. I hope all are staying cool, and thanks for reading. — Ben Cronin.]
(The view from Duxbury Beach, on Cape Cod Bay, looking southeastward, towards The Gurnet; credit — J. Benjamin Cronin.)
I. Introduction
I write and respectfully submit the following comment in opposition to a proposed modification by Holtec to its existing Surface Water Discharge (NPDES) Permit (Permit No. MA0003557) for Pilgrim Nuclear Power Station in Plymouth, Massachusetts. The modification would allow Holtec — which is decommissioning Pilgrim — to discharge approximately 1.1 million gallons of chemically and contaminated industrial wastewater stored in Pilgrim’s spent fuel pool, torus, reactor cavity, and dryer separator pit into Cape Cod Bay. By Holtec’s own representations, the filtration processing of this wastewater will remove 90 to 95% of the contaminants present, necessarily leaving 5 to 10% present, including the radiological pollutant tritium. Because Holtec agreed to follow Massachusetts laws and regulations in the June, 2020 Settlement Agreement, and because Massachusetts laws and regulations plainly prohibit the discharge of the wastewater in question, the proposed permit modification is facially illegal and therefore must be denied.
Indeed, the arguments against Holtec’s permit application are several and varied, and require detailed explication. Taken together, they present an overwhelming weight of evidence — legal, historical, scientific, economic, and more — which impel the same conclusion that MassDEP came to in its July 24, 2023, tentative determination: that the proposed discharge is illegal, and therefore Holtec’s permit modification application must be denied.
II. Procedural History
On March 31, 2023, Holtec applied to both MassDEP and the United States Environmental Protection Agency (US EPA) for a permit modification that would allow the discharge of approximately 1.1 million gallons of radioactively and chemically contaminated wastewater located in reactor core, the dryer-separator pit, and the torus. Holtec characterized the proposed modification in its application:
“Under the terms of this proposed NPDES Permit modification, the water will be filtered using a Solids Collection Filter Top-Loading Canister System, routed to a mixed bed resin/charcoal demineralizer for radiological and chemical (including organic) contaminant removal, radiologically characterized, and then discharged via Outfall #015 in batches of approximately 19,000 gallons and diluted into the plant[']s discharge canal and further diluted in the Cape Cod Bay.”1
Significantly, in its application, Holtec characterized the proposed discharge as both “new” and as “industrial wastewater.” In Section E of the application, it writes “This application for modification of NPDES Permit No. MA0003557 to authorize discharge of a new source of industrial wastewater is submitted as required by Section 301(a) and 402 of the Clean Water Act, and 40 CFR 122.21 and 122.62.”2 Further, in Section F, Holtec states that “The industrial wastewater proposed for discharge is a New Source,” confirming what it stated immediately above in Section E.3
It should be noted here as well that Holtec did not apply for this permit modification freely and at the outset of this process. Rather, from the start, when it first announced its intention to dump in late 2021, through most of calendar year 2022, Holtec strenuously resisted its obligations to follow its permit. Holtec, in correspondence between it and the United States Environmental Protection Agency, continually, baselessly and baldly asserted that it could, contrary to the language of its existing permit, discharge the water in question without seeking a new permit or modifying its existing permit — in effect, that the laws of the Commonwealth and the United States do not bind it — despite multiple communications from the EPA confirming that it could not violate its NPDES permit, and that Holtec, like the rest of us, was in fact bound by the law. It was only when the EPA made clear that willfully violating its permit constituted a violation of Federal law, a violation which could face serious criminal sanction, that Holtec relented, and began the process of seeking the permit modification presently before the Department.4
As noted above, that application was made to the Department on March 31st, 2023.
This summer, MassDEP correctly found in its July 24, 2023, tentative determination denying Holtec’s application for a permit modification that the proposed discharge of the wastewater in question violated the Ocean Sanctuaries Act. Before discussion of that statute below, I believe it necessary to step back, and explain the significance of this question in both jurisprudential and historical terms. This comment will then examine the bases in constitutional, statutory, and regulatory law for denying Holtec’s application, followed by a consideration of scientific and economic evidence supporting the denial of Holtec’s application. We will then turn to the significance of public lands and waters, the inherent rights of the people of the region surrounding Cape Cod Bay to democratic self-determination, and, finally, to a rebuttal of several erroneous arguments put forward by Holtec and its allies, before concluding.
The evidence before the Department, including in this paper, will impel the following conclusion: that Holtec’s proposed discharge of industrial wastewater into Cape Cod Bay is facially illegal, and that therefore, as the Department did in its tentative determination, MassDEP must deny Holtec’s application for modifying its permit.
III. Precedent: The Commons and the Common Law
The public nature of the ocean is of great antiquity at law, and not only in the Common Law, but also the Roman Law before it. More than eight centuries of jurisprudence bolsters and confirms the public nature of the sea and its arms; indeed, when the Roman Civil Law is considered, the weight of precedent becomes even more overwhelmingly powerful.
Nor is this merely of academic concern. My own view as an historian of the Towns of Plymouth County and the New England commons tradition (on which more below) is that the reason the question of the potential discharge of Holtec’s industrial wastewater into the bay has aroused such fierce public opposition is precisely how profoundly contrary it stands to the vast corpus of precedent which stands behind the public nature of the sea, and the attendant duty of bodies politic, including the Commonwealth and the Department, to hold and safeguard these resources in the public trust. When examined in historical perspective, it becomes clear that Holtec’s proposed discharge stands contrary to the entire edifice of Common Law jurisprudence with respect to public waters.
Before proceeding to the Common Law, it is necessary to at least cursorily examine the Roman Civil Law and how it treats the subject of public waters. The 6th century Code of Justinian, a summation and codification of centuries of Roman law, is quite clear regarding the public ownership and character of the sea:
“By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations.”5
Beyond the Roman law, the roots of these common liberties reach deep into the Common Law, being formally codified in both Magna Carta and its companion document, the 1217 Charter of the Forests.
With respect to public waters and the doctrine of the public trust, a clause in Magna Carta relating to the commons, understood as physical resources, must be examined. Clause 33 of the 1215 Magna Carta, which becomes Clause 23 in the 1225 confirmation of Magna Carta by Henry III, prohibits the erection of weirs in the Rivers Thames and Medway:
“All fish-weirs are in future to be entirely removed from the Thames and the Medway, and throughout the whole of England, except on the sea-coast.”6
Weirs, found all over the world, are structures used to direct, and ultimately to trap, fish, historically largely made of wood and stone. Because they impede the flow of the river, they are responsible for silting of rivers, and the consequent obstruction of navigation.
Medieval historian Nicholas Vincent, Professor at the University of East Anglia, described the significance of Clause 33/Clause 23:
The clause “demanded the removal of all fish-weirs from the Thames, the Medway and all other rivers of England. Fish-weirs were large V-shaped structures, generally built of wooden stakes, into which fish might swim but from which they could not escape. Since weirs slowed the flow of water, they led to silting and in due course the closure of waterways vital to London’s trade. In this way the extensive use of fish-weirs represented the denial of a rather more general principle: that of free navigation, itself already of significance under Roman law, and in due course a major theme in the debates on British imperial power…..”7
The Charters — both Magna Carta (the 1225 version is that which Edward recorded in the statute books of England), as well as its companion document, the 1217 Charter of the Forests — were confirmed by Edward I in the Confirmation of the Charters (25 Edward I c.1 sec. 1) in 1297.8 Taken together, these documents form the original source of the common law public trust doctrine with respect to our oceanic commons.
My understanding is that the foremost authority among common law jurists on the subject of the sea itself is the 17th century Chief Justice of the King’s Bench Matthew Hale, author of the treatise De Jure Maris (“Of the Law of The Sea”). Lord Hale identifies Magna Carta as the source of the common law’s doctrine of public waters:
“Again, there be other rivers, as well fresh as salt, that are of common or publick use for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow and reflow or not, are prima facie publici juris, common highways for man or goods or both from one land town to another…. And therefore all nuisances and impediments of passages of boats and vessels, though in the private soil of any person, may be punished by indictments, and removed; and this was the reason of the statute of Magna Charta cap. 23.”9
Crucially, Lord Hale observed that the right of the common people of England to fish in the sea and its arms was indefeasible:
“The right of fishing in this sea and the creeks and armes thereof is originally lodged in the crown….But though the king is the owner of this great wast, and as a consequent of his propriety hath the primary right of fishing in the sea and the creekes and armes thereof; yet the common people of England have regularly a liberty of fishing in the sea and the creekes and armes thereof, as a publick common of piscary, and may not without injury to their right be restrained of it, unless in such places creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of the common liberty.”10
I would suggest that this is precisely one of the issues brought forth by this public controversy: Holtec is essentially seeking to exercise, contrary to law, “a propriety exclusive of the common liberty” with respect to Cape Cod Bay — a propriety which they simply do not possess.
Lord Hale set out legal principles with respect to both public waters and that were already ancient in the 17th century, and became the basis for later case law on the nature of the sea.
An 1821 English case, Blundell v. Caterall, is significant in part for a dissent by Justice Best which, per New Hampshire Chief Justice Doe’s arguments in Concord Mfg. Co. v. Robertson, expresses well the importance of Magna Carta (see Cap. 33 above) with respect to the doctrine of public waters; Justice Best’s dissent, it should be noted, more closely represents the actual law of the land in the United States (see Concord Mfg. Co. v. Robertson, below), but this is not the case in England, where the commons tradition was significantly eroded by aristocratic dominance with respect to the commons. 11
Justice Best wrote:
"My opinion is founded on these grounds. The shore of the sea is admitted to have been at one time the property of the king. From the general nature of this property, it could never be used for exclusive occupation. It was holden by the king, like the sea and the highway, for all his subjects. The soil could only be transferred, subject to this public trust; and general usage shows that the public right has been excepted out of the grant of the soil. . . . Unless I felt myself bound by an authority as strong and clear as an act of parliament, I would hold on principles of public policy, I might say public necessity, that the interruption of free access to the sea is a public nuisance. In the first ages of all countries, not only the sea and its shores, but all perennial rivers, were left open to the public use. In all countries it has been matter of just complaint, that individuals have encroached on the rights of the people. In England, our ancestors put the public rights in rivers under the safeguard of Magna Charta.”12
In the syllabus for the 1842 US Supreme Court Case Martin v. Waddell, 41 U.S. 367 (1842), the Court states that the authority over public waters held formerly by the Crown had been vested in the several States upon the Revolution.
“The country granted by King Charles the Second to the Duke of York [i.e., the colony of East Jersey, today part of the State of New Jersey], was held by the King in his public and regal character, as the representative of the nation, and in trust for them. The discoveries made by persons acting under the authority of the government were for the benefit of the nation, and the Crown, according to the principles of the British Constitution, was the proper organ to dispose of the public domain. Cited, Johnson v. McIntosh, 8 Wheat. 595.
When the Revolution took place, the people of each state became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government….”13 (see arguments below on the lack of any grounds for arguing federal preemption.)
The Court continued, writing that “The dominion and property in navigable waters and the lands under them being held by the King as a public trust, the grant to an individual of an exclusive fishery in any portion of it is so much taken from the common fund entrusted to his care for the common benefit. In such cases, whatever does not pass by the grant remains in the Crown for the benefit and advantage of the whole community. Grants of that description are therefore, construed strictly, and it will not be presumed that the King intended to part from any portion of the public domain unless clear and special words are used to denote it.”14
The Court further stated in the syllabus that:
“The land under the navigable waters within the limits of the charter [of the colony of East Jersey, today part of the State of New Jersey, granted by Charles II to his brother, James, Duke of York, later James II] passed to the grantee as one of the royalties incident to the powers of government, and were to be held by him in the same manner and for the same purposes that the navigable waters of England and the soils under them are held by the Crown. The policy of England since Magna Charta -- for the last six hundred years -- has been carefully preserved to secure the common right of piscary for the benefit of the public. It would require plain language in the letters patent to the Duke of York to persuade the Court that the public and common right of fishing in navigable waters, which has been so long and so carefully guarded in England, and which was preserved in every other colony founded on the Atlantic borders, was intended in this one instance to be taken away. There is nothing in the [colonial] charter that requires this conclusion.”15
Justice Taney, in his opinion, and writing for the Court, wrote that
“The principle here stated by Hale, as to "the public common of piscary" belonging to the common people of England, is not questioned by any English writer upon that subject. The point upon which different opinions have been expressed is whether, since Magna Charta, "either the King or any particular subject can gain a propriety exclusive of the common liberty." For undoubtedly, rights of fishery, exclusive of the common liberty, are at this day held and enjoyed by private individuals under ancient grants. But the existence of a doubt as to the right of the King to make such a grant, after Magna Charta, would of itself show how fixed has been the policy of that government on this subject for the last six hundred years, and how carefully it has preserved this common right for the benefit of the public.”16
Five decades later, U.S. Supreme Court Associate Justice Horace Gray, writing for the Court, like Chief Justice Taney in Martin v. Waddell, relies on Lord Hale’s summation of Common Law in Shively v. Bowlby, 152 U.S. 1 (1894):
“By the common law, both the title and the dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high water mark, within the jurisdiction of the Crown of England, are in the King. Such waters, and the lands which they cover, either at all times or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement, and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the King, as the sovereign, and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.”17
Per Martin v. Waddell above, the Crown, of course, as the guardian of the sea in public trust, has been replaced in our situation since the American Revolution with the Commonwealth of Massachusetts and the United States.
A more recent and more local case demonstrates the continuing relevance for the corpus of our legal commons legacy reaching back to Magna Carta here in Massachusetts. A 1979 decision by the Massachusetts Supreme Judicial Court, Boston Waterfront Development Corp. v. Commonwealth, demonstrates this well. In that case, concerning a land dispute between the Boston Waterfront Development Corporation and the Commonwealth over a parcel of land at one end of a wharf that extended into Boston Harbor. Justice Francis J. Quirico wrote for the Court:
“The conflict between king and citizens that preceded the Magna Charta concerned, among other things, opposition to this absolute power of the Crown to grant private rights in the shore, particularly as these rights interfered with the free navigation which was so essential to the rising commercial classes. Note, The Public Trust in Tidal Areas, supra at 765. After Magna Charta, the competing interests were accommodated by a legal theory that divided the Crown's rights to shore land below high water mark into two categories: a proprietary jus privatum, or ownership interest, and a governmental jus publicum, by which the king held the land in his sovereign capacity as a representative of all the people. Shively v. Bowlby, 152 U.S. 1, 11-14 (1894). Commonwealth v. Alger, 7 Cush. 53, 90 (1851). Commonwealth v. Roxbury, 9 Gray 451, 482-484 (1857). This latter interest the Crown could not convey into private hands, since it was ‘held as a public trust for all subjects and their free exercise of the common rights of navigation and fishery....’ Rice, supra at 1….”18
In addition to those decisions, there is a body of New England common law relating to Great Ponds which, while certainly not dispositive on this question, do demonstrate that the direction and tendency of jurisprudence relating to public waters, not only in this Commonwealth and in our sister states of New Hampshire and Maine, has been from a very early date in the direction of greater rights for the public with respect to these waters, and not any particular private economic interest. In this sense, Holtec’s proposal is contrary to the entire direction of New England common law, which extends public protection of waters.19
One of the most significant commentaries on the legal aspects of this matter comes from an 1889 decision of the New Hampshire Supreme Court, Concord Co. v. Robertson, 66 N.H. 1, 4 (N.H. 1889).
The decision’s greatest significance is Justice Doe’s affirmation that Great Ponds are public waters, and that public waters extend beyond tide waters in the United States.
“In respect to title, the law divides natural fresh-water ponds into two classes, — the small, which pass by an ordinary grant of land, like brooks and rivers, from which, as conveyable property, they are not distinguished, — and the large, which are exempted from the operation of such a grant for reasons that stop private ownership at the water's edge of the sea and its estuaries. Tide-waters and large ponds are public waters. Whatever exceptions, if any, may be found, this is the rule,” wrote Justice Doe.20
Public waters are determined primarily by their navigability, said Justice Doe. “For the purposes of admiralty jurisdiction and the federal power of regulating commerce, ‘the doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or, at least, to any considerable extent, which are not subject to the tide; and from this circumstance tidewater and navigable water there signify substantially the same thing. But in this country the case is widely different…. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact.’ The Daniel Ball, 10 Wall. 557, 563; The Genesee Chief 12 How. 443, 454, 455; Fretz v. Bull, 12 How. 446 The Magnolia, 20 How. 296, 299; The Commerce, 1 Black 574; The Hine v. Trevor, 4 Wall. 555; The Eagle, 8 Wall. 15; The Montello, 20 Wall. 430; Miller v. Mayor, 109 U.S. 385, 395.”21
Indeed, as future Associate Justice of the United States Supreme Court Louis D. Brandeis wrote, in 1890, “political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.”22 So it was in America, argued Justice Doe. He pointed in particular to the 1641 Massachusetts Liberties (see below in the section on constitutional law).
“But in both jurisdictions [New Hampshire and Massachusetts] large ponds are withheld from private ownership for reasons that are distinctively American. ‘Every inhabitant that is an howseholder shall have free fishing and fowling in any great ponds, and bayes, coves, and rivers so farre as the sea ebbes and flowes within the precincts of the towne where they dwell, unlesse the free men of the same towne or the generall court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.’ Mass. Body of Liberties (enacted in 1641), art. 16, printed in 8 Mass. Hist. Coll. (3d series) 219, Mass. Colonial Laws 1660 to 1672 (ed. of 1889), p. 37, and 9 Gray 465. ‘The great purpose of the 16th article of the Body of Liberties was to declare a great principle of public light, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive fisheries, and to make them all free.’ Com. v. Alger, 7 Cush. 53, 68; West Roxbury v. Stoddard, 7 Allen 158, 165.”23
These laws extended to those jurisdictions, such as Plymouth Colony, that were later absorbed into Massachusetts, wrote Justice Doe, quoting earlier decisions to that effect.
Here is Justice Doe, with the initial quotation drawn from Com v. Alger:
“‘Whether the ordinance is a part of the statutory or of the common law in territory of the Massachusetts Colony, it is perhaps unnecessary to determine. It was never extended over Plymouth by an act of the General Court. It is, however, the law throughout the whole Commonwealth.’ It ‘has been extended to Plymouth, to Nantucket, to the county of Dukes, and to Maine, and this has been done by usage and by judicial decision.’ Litchfield v. Scituate, 136 Mass. 39, 46. "It is in force throughout the whole territory of this state, including those parts which were formerly the Colony of Plymouth, Nantucket, and Dukes County, and also in Maine, although non[e] of these were under jurisdiction of the Colony of Massachusetts Bay." Watuppa R. Co. v. Fall River, 147, Mass. 548, 556; Com. v. Alger, 7 Cush. 53, 75, 76, 79; Weston v. Sampson, 8 Cush. 347, 354; 9 Gray 523. "When the ordinance of 1647 is said to be part of the common law of Plymouth Colony, all that is meant is that . . . it has been extended to that territory by usage and by judicial decision." Watuppa R. Co. v. Fall River, 154 Mass. 305, 308.”24
In New England, then, not just tidewater but navigable freshwater is public at law. To grant Holtec’s permit would stand counter to this long-established expansion of the public’s rights in navigable waters.
Taken together, these decisions demonstrate just how vast is the weight of precedent standing against Holtec’s application. Over eight centuries of legal precedent, from Magna Carta on, stand entirely counter to Holtec’s application to modify its permit, which is preeminently an example of the elevation of a private and particular economic interest above the “the common rights of navigation and fishery,” and which constitutes an unlawful attempt to exercise a propriety over the sea which Holtec simply does not possess. Indeed, this is not simply of antiquarian or academic interest: as the cases above show, Magna Carta remains an active and integral part of “the life of the law,” to use Justice Holmes’ phrase, one which continues to protect the people of this Commonwealth and our rights, including our rights over public things (res publicae) like the sea.
IV. Article 97 and Constitutional Law
The Massachusetts Constitution is likewise important for the Department to consider as it weighs the evidence in the process of rendering its decision in this matter. The text of the Constitution of the Commonwealth provides further reason for MassDEP to deny Holtec’s application to modify its permit.
Article 97 (XCVII) is most relevant for our purposes. It reads, in part:
“The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.
The general court shall have the power to enact legislation necessary or expedient to protect such rights.”25
Article 97 enters the Constitution of the Commonwealth at the same historical moment as the Ocean Sanctuaries Act became law: “The ninety-fifth, ninety-sixth, ninety-seventh, ninety-eighth, ninety-ninth and one hundredth Articles of Amendment were adopted by the General Court during the sessions of 1969 and 1971, and all six Articles were approved and ratified by the people on the seventh day of November, 1972.”26
Note that the Article guarantees “the right to clean air and water” to the people of the Commonwealth. This is a fundamental right that may not be abrogated, particularly by any private corporation. The discharge of radioactively and chemically contaminated industrial wastewater into Cape Cod Bay is quite plainly contrary to that guaranteed right to “clean water.”
Article 97, to paraphrase Walt Whitman, contains multitudes: it encompasses and resolves divergent interests, both preservation value (“the natural, scenic, historic, and esthetic qualities of their environment”) and utility value (“utilization”). Under Article 97, the ancient public common of piscary is not extinguished, but protected, as a use-value, alongside the explicit constitutional guarantee to a clean environment (a guarantee which had been implicit prior to this Article’s incorporation into the Constitution).
Indeed, where the Article explicitly guarantees these rights, nowhere does it say that any private corporation shall have the right to use the public waters of the Commonwealth as a waste disposal site for chemically and radioactively contaminated wastewater. This is no mere absurdity for the sake of argument: the language of Article 97 is so explicit that Holtec would have to find some kind of actual text in the Constitution of the Commonwealth with which to meet the challenge posed to their argument by Article 97.
I think it is worth noting here that even a specific Act of the legislature allowing the sorts of discharge which Holtec proposes would be unconstitutional, being in direct and open contradiction with the terms of Article 97. This level of protection is extraordinary, and the Department must ensure that rights guaranteed under the Constitution of the Commonwealth are enjoyed by all citizens.
It is likewise important to point out that the common right of fishing in Massachusetts is included in the organic law and/or foundational law of all of the legitimate predecessor governments of the Commonwealth — namely, Plymouth Colony, the Colony of Massachusetts Bay, and the Royal Province of Massachusetts Bay — include rights to fishing in their fundamental organic law (the equivalent of their constitutions).
The Plymouth Colony lacked a single Charter per se, unlike the Colony of Massachusetts Bay and the Royal Province of Massachusetts Bay. Nevertheless, it possessed a written body of law, including a founding, constitutional document, the Mayflower Compact, and in its first legislative session in 1623, it declared “That ffowling fishing and Hunting be free:” – and further, guaranteed shore access to all: “that eve[ry] man be allowed a conveanient way to the water where[soever] the lott fall:”27
The 1641 Massachusetts Body of Liberties constituted the organic law of the Bay Colony. As noted above, at Clause 16, the document guarantees the rights of fishing to the public: “Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.”28
The 1691 Charter of the Royal Province of Massachusetts Bay mentions fish and fishing extensively, affirming the inhabitants’ “free Libertie of Fishing in or within any of the Rivers and Waters within the bounds and limitts aforesaid and the Seas thereunto adjoyning and of all Fishes Royall Fishes Whales Balene Sturgeon and other Fishes of what kind or nature soever that should at any time thereafter be taken in or within the said Seas or Waters…”29 The Charter is quite explicit regarding the importance of the public common of piscary in Massachusetts: “And further Our expresse Will and Pleasure is And Wee doe by these present for Vs Our Heires and Successors Ordaine and appoint that these Our Letters Patents shall not in any manner Enure or be taken to abridge bar or hinder any of Our loveing Subjects whatsoever to vse and exercise the Trade of Fishing vpon the Coasts of New England but that they and every of them shall have full and free power and Libertie to continue and vse their said Trade of Fishing vpon the said Coasts in any of the seas therevnto adjoyning or any Arms of the said Seas or Salt Water Rivers where they have been wont to fish….”30
The evidence from constitutional law, both prior to and subsequent to the American Revolution is clear: the enjoyment of the natural resources of the Commonwealth is deeply and firmly established at the level of the organic law of Massachusetts.
V. History: Town, Colony, Province, and State Commons Regimes; the New England Commons Tradition in Historical Context
During the colonial period, the regulation of water resources occupied a position of primus inter pares among the concerns, and subjects for legislation, of the Towns of southeastern Massachusetts.
In Plymouth, at a Town Meeting held on April 22nd, 1673 [my copy of the comment sent to DEP incorrectly gave this date as 1672, rather than 1672; I regret the error and am glad to correct it] — when Hale was Lord Chief Justice of the King’s Bench in England — the Town acted collectively to protect its anadromous fishery and valuable piscine resources; in other words, to guard its “publick common of piscary”: “It was ordered by the Towne that the ffish Called the alewives be not hindered by the mills or otherwise in theire goeing np ; and that they be afforded water sufficient to Repaire to the salt water when the tfiood Gates are shutt downe and that none shall take any such ftish in theire Goeing up except for eating ; and that the wastgate be drawn up every Night in the season the ffish are goeing up and that Initt one ware be made for thein in theire Coming downe[.]”
To enforce this law, “Serjeant harlow and Jaboz howland are appointed l)y the Towne to see these orders Respecting the ffish be duely executed and pformed[.]”31
Alewives (Alosa pseudoharengus), a migratory and anadramous fish, annually enter Town Brook in Plymouth, and similar streams in her sister Towns, in vast profusion, passing through Cape Cod Bay on their way to their spawning grounds in the glacially-carved ponds of the region. Their preservation has been a concern since the 17th century in the government of the Town of Plymouth
Similar action guarding the Town of Plymouth’s herring fishery was taken in the 18th century. At a Town Meeting held on March 18th, 1728, the Town “Voated that there be a Committe to prevent the Wasting & destroying of the fish called alewives the Committe are Decon John Foster Stephen Churchell Decon Haviland Torry Timothy Morton and Thomas Spoouer. Voted that none of the Inhabitants of the Town of Plymouth whatsoever shall take any of sd alewives fish either with nets or saines nor by beating of them in the Town Brooke or any where in the harbour of Plymouth and to put them into or auy other cask & Expose them to sale Excepting what they may have occation for to use themselves for baite & their families use.”32
Similar measures were undertaken in Plymouth’s sister Towns in their early centuries.
In Duxbury, the 1693 Town Meeting voted to enact a Town bylaw that stands as a direct, lineal descendant of Magna Carta’s guarantee of the public nature of public waters.
Second, “At this Town meeting, the town do agree, that if the fisher men of Duxbury, shall clear Island Creek brook, that said men shall have liberty then to get herring for bait from time to time, without molestation; and to that end the town do agree, that if any, either English or Indian, do hinder them herein, by making of weirs, or hindering the fish from coming to the Pond, or going down, they shall thereby forfit five shillings for every time they so do, to be taken by distraint (from the person so transgressing) by the Constable, which the complainer shall have for his pains.”33
Fluvial legislation relating to the maintenance of the numerous teeming anadromous fish runs of Plymouth County would occupy the single clearest locus through which to see the ancient guardianship by the several towns of common rights and common liberties, including the public liberty of piscary referred to by Lord Hale above.
Indeed, the 17th, 18th, and 19th century Towns of Plymouth County were deeply concerned to preserve their supplies of anadromous fish, especially alewives — a tradition which continues today, with the regular, community-wide celebration of the fish in the form of the annual Plymouth Herring Festival.34
Shellfish, too, were carefully stewarded by the Towns of Plymouth County. This can be seen in the Town of Wareham’s early records. At the Wareham Town Meeting held on March 20th, 1775, the Town “Voted that there Should be no Shell fish nor Shells Sold nor carryed out of town.” 35 The fact that the shellfish were reserved to the residents of the Town only is significant, since it shows the lineal ancestor of the contemporary means of shellfish regulation by the coastal Towns of Massachusetts via Town shellfishing licenses, overseen, typically, by an organ of Town Government, whether a Shellfish Committee (or Board), the Town’s Harbormaster’s Office, or both.
Indeed, 1813 witnessed the creation of, so far as I can tell, the Town’s first formal Shellfish Committee: the Town Meeting took action “for the purpose of chuseing a Committee to protect the Shell fish + act on all matters.”36
Again, the several Towns of the region are shown by the historical record to have practiced a careful and exacting regulation of their natural resources, even in this early period.
In addition to the several Towns, the Government of the Colony of Massachusetts Bay (1630-1691), the Royal Province of Massachusetts Bay (1691-1774) into which the Colony of New Plymouth was absorbed, and which came under the aegis of Massachusetts law, per Watuppa v. Fall River, and the Commonwealth of Massachusetts (1780-Present) all passed statutes carefully guarding the fisheries of our public waters.
The 1641 Massachusetts Body of Liberties, which extended to the former Plymouth Colony when the latter was absorbed into the new Royal Province of Massachusetts Bay, is likewise instructive in terms of making real, in the New World, Hale’s public common of piscary in the 17th century:
“ Every Inhabitant that is an howse holder shall have free fishing and fowling in any great ponds and Bayes, Coves and Rivers, so farre as the sea ebbes and flowes within the presincts of the towne where they dwell, unlesse the free men of the same Towne or the Generall Court have otherwise appropriated them, provided that this shall not be extended to give leave to any man to come upon others proprietie without there leave.”37
During the period of the Royal Province of Massachusetts Bay, the General Court passed dozens of statutes relating to the preservation of the fishery. One may stand in for all of them, namely Chapter 21 of the 1735-36 Province Laws, 3rd Session, “An Act To Prevent the Destruction of the Fish Called Alewives” (1735). In this statute, the General Court came down squarely on the side of preserving the “publick common of piscary” rather than encouraging private industrial activity:
“Notwithstanding the provision by law already made for removing incumbrances obstructing the natural or usual course of fish, in their season, in brooks or rivers, yet no sufficient remedy is provided where such obstruction is occasioned by dams erected for mills, &c., which is to the grievous damage of his majesty's good subjects in diverse parts of this province, more especially where such dams have been made across rivers through which alewives or other fish have been wont to pass, in great plenty, into ponds, there to cast their spawns ; wherefore, to prevent the like inconvenience and damage for the future,
Be it enacted by His Excellency the Governour, Council and Representatives in General Court assembled, and by the authority of the same,
[Sect. 1.] That no dam shall, hereafter, be erected across any river or stream, thro' which alewives or other fish have been accustomed to pass into ponds, in which there is not made and left a convenient sluice or passage for such fish, on penalty that the owner or owners of such dam shall, upon conviction of failure or neglect therein, before any' court proper to try the same, forfeit and pay the sum of fifty pounds….”38
Even at this early date, then, the Great and General Court took very seriously its duty to protect the fishery, and enacted laws to carry out that purpose.
With the advent of the American Revolution and the establishment of the new, republican government of the Commonwealth of Massachusetts in 1780, the duty to preserve the fishery passed to the new General Court (John Adams excised “Great” from the title of the legislature in the new constitution). That it did so can be seen from an 1836 statute passed by the legislature, “An Act To Regulate The Alewive Fishery In The Town Of Wellfleet,” on the eastern shore of Cape Cod Bay.
Section 1 of the Statute empowered the Selectmen of Wellfleet to regulate the time and place of the taking of alewives: “Thc Selectmen of thc town of Wellfleet, for the time being, may, in the month of March or April annually, prescribe the time, place or places, and manner of taking alewives, in the creeks and brooks in the town of Wellfleet, such time not to exceed four days in a week….”39
The penalty for violating the act set forth in Section 3, like that from the alewife statute a century prior, was again significant, a sign of just hnow seriously the General Court took its duty to preserve the fishery.
“If any person shall take any of the fish Penalty. aforesaid in the creeks or brooks or ponds in which said fish cast their spawn, at any time or in anv place or manner, other than shall be allowed by said selectmen as aforesaid, each person so offending, for each and every offence on conviction thereof, shall pay a fine not exceeding twenty dollars.”40
Nearly a hundred years later, the legislature’s concern with the preservation of the alewife fishery had extended beyond the coastal herring runs and fluvial commons to the waters of the sea and its arms. This can be seen via an examination of a 1933 statute, Chapter 118 of the Acts of 1933, “An Act Prohibiting The Taking Of Certain Herring Or Alewives From The Waters Of Plymouth Harbor, Kingston Bay, Duxbury Bay And Certain Waters Of Plymouth Bay”:
“Whoever takes any herring or alewives less than four inches in length from the waters of Plymouth harbor, Kingston bay, Duxbury bay or from that part of the waters of Plymouth bay lying westerly of an imaginary line drawn from the northeasterly extremity of Rocky Point to Gurnet Light, shall be punished by a fine of not less than five nor more than fifty dollars.”41
Here, then, approximately four decades prior to the enactment of the Massachusetts Ocean Sanctuaries Act and the designation of Cape Cod, Duxbury, Kingston, and Plymouth Bays as ocean sanctuaries (on which more below at Section _), we see a significant precedent: the legislature extending its concern with the alewife fishery beyond coastal streams and into the waters of the several bays of the region.
Why all of the above is relevant is for the simple reason that precedent matters. Precedent is the ultimate guiding principle of the Common Law as a larger system of jurisprudence, and the historical precedents, in addition to the legal precedents cited above, are very clear: from a very early date, the Towns of Plymouth County, and our sibling Towns on Cape Cod and beyond, have exercised an extremely close and careful control over their natural resources and the stewardship thereof. Holtec’s proposed discharge, in support of which they have applied to modify their existing permit, stands contrary to this long continuity of historical precedent, and to the enduring and continuing commons tradition — both de jure and de facto — in the several Towns surrounding Cape Cod Bay.
In its totality, the historical evidence evinces the existence of a legal-social-political-economic structure, extremely rare if not singular in global terms, which I call The New England Commons Tradition.42 There is a historical reason why the New England states have, compared with their sister states both near and far, a more vigorous complex of public preservation, conservation, and use of public lands and waters. Compared with their sister states, especially in the West, the New England states possess a very active and powerful system of state parks, forests, beaches, and other public lands, just as we possess active and powerful state governments. The several Towns since their earliest human occupation, and their inception as bodies politic starting in the 17th century, have likewise exercised directly democratic authority over their natural resources, and indeed, jealously guarded their commons, including their oceanic and piscine commons. There has even developed a unique body of New England common law, for instance, as relates to Great Ponds and their inherently and indefeasibly public nature.43
When the numerous non-profit land trusts, reservations, and other institutions that have put land into conservation across New England — land that, though held privately, is open to public purpose and enjoyment — are included in this calculus, the strength and depth of the New England Commons tradition can be further seen, undergirded by a veritable thicket of institutions. Indeed, at the level of public opinion, the results of a 2014 Pew poll are relevant. This poll found that the overwhelming majorities of the public New England states show overwhelming support for the statement “Stricter environmental laws and regulations are worth the cost.” (In Connecticut, 64% of respondents agreed with the statement; in Maine, 62%; in Massachusetts, 63%; in New Hampshire, 66%; in Rhode Island, 65%; in Vermont, 70%).44
In a very direct sense, the fact is that compared with other states, Massachusetts’s beaches bear remarkably few high-rise luxury hotels perched on ephemeral barrier beaches. I am not saying that in jest, either — the preservation of public lands and waters, understood as public things, res publicae, flowed from the communitarian culture of the early Puritan and Separatist settlers of New England, shaped itself shaped both by the influences of 17th century Reformed Protestantism and the distinctive East Anglian regional culture of the early settlers. This juridical and political-economic tradition has, in “the eternal youth” (Louis D. Brandeis) of the Common Law, adapted to conditions far removed from its inception: it guides, in the present, a multicultural, 21st century democracy, the Commonwealth of Massachusetts, as it faces new challenges like climate change45 and the broader ecological crisis.
The New England Commons Tradition is a rare and precious heritage, one that the Department must carefully guard and ensure the continuation of; this entire tradition, with its enormous weight of historical and legal precedent, stands counter to Holtec’s application to modify its permit. In defense of this tradition, the Department should therefore deny Holtec’s application.
VI. There Is No Federal Preemption In This Instance
In the June, 2020 Settlement Agreement between the Massachusetts Attorney General’s office and Holtec – a contract into which Holtec freely entered – both parties agreed that “Holtec shall comply with all applicable environmental and human-health based standards and regulations of the Commonwealth;” (Settlement Agreement, III (10)(l)).46
Further, No. 16 in the Settlement Agreement states that “Nothing in this Agreement shall release any person from the obligation to investigate and remediate new, undiscovered, or undisclosed releases of radiological contamination or non-radiological oil or hazardous materials in accordance with federal or Massachusetts statutes and regulations.”47
Critically, at No. 48 in the Settlement Agreement, Holtec agreed not to make any Federal preemption arguments.
“48. Validity. No Party to this Agreement (or any person or entity affiliated or related to a Party to this Agreement) shall assert that any provision of this Agreement (or the Agreement itself) is invalid under any federal law or any provision of the U.S. Constitution.”48
Contracts are not preempted, and Holtec is contractually bound not to argue preemption.
Even if the Settlement Agreement did not exist — and it is a very good thing that it does — United States case law supports the contention that there is no preemption. The United States Supreme Court has held on four separate occasions that while Congress granted the field of nuclear safety to the Nuclear Regulatory Commission (NRC), under the United States Constitution, States retain their legitimate authority to regulate their individual economies, and that states may regulate nuclear matters in that capacity, and indeed, in those capacities not ceded by Congress to the NRC, i.e., those not relating to nuclear safety. The Court ruled that there is only preemption if there is a contradiction between Federal and State laws and regulations. Since there is no Federal law or regulation requiring Holtec to discharge this water — it simply wishes to, for financial reasons — there is no contradiction between Massachusetts and Federal laws and regulations. Precedent therefore impels the conclusion that there is no federal preemption in this instance.
See Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983); English v. General Electric Co., 496 U.S. 72 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984); Virginia Uranium, Inc. v. Warren, 587 U.S. ___ (2019).
Justice Harry Blackmun, joined by Justice John Paul Stevens in a concurring opinion in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, dismissed the idea that Federal preemption could be used as a kind of blank check by the nuclear industry to avoid regulation by the several states:
“Federal pre-emption of the States' authority to decide against nuclear power would create a regulatory vacuum. See Wiggins, Federalism Balancing and the Burger Court: California's Nuclear Law as a Preemption Case Study, 13 U. C. D. L. Rev. 3, 64 (1979). In making its traditional policy choices about what kinds of power are best suited to its needs, a State would be forced to ignore the undeniable fact that nuclear power entails certain risks. While the NRC does evaluate the dangers of generating nuclear power, it does not balance those dangers against the risks, costs, and benefits of other choices available to the State or consider the State's standards of public convenience and necessity.”49
Writing for the unanimous Court in English v. General Electric, Justice Harry Blackmun noted the logically absurd conclusions towards which the arguments from the nuclear industry drive: “In addressing this issue, we must bear in mind that not every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the preempted field. We have no doubt, for instance, that the application of state minimum wage and child labor laws to employees at nuclear facilities would not be preempted, even though these laws could be said to affect tangentially some of the resource allocation decisions that might have a bearing on radiological safety.”50
Thus, even if the Settlement Agreement did not exist, the decisions of the high court would argue against any preemption claims from Holtec — claims, it should be noted, which they agreed not to make in the Settlement Agreement.
VII. Massachusetts Statutory Law
Because there is no preemption, Massachusetts laws are relevant in the question of Holtec’s proposed discharge of the 1.1 million gallons of industrial wastewater from Pilgrim Nuclear Power Station into Cape Cod Bay. At least four statutes are relevant, and all plainly prohibit the discharge for which Holtec seeks a permit modification: The Massachusetts Ocean Sanctuaries Act, the Massachusetts Endangered Species Act, the Oil and Hazardous Waste Act, and the Crimes Against Public Health Act. Let us examine each of these in turn.
The Massachusetts Ocean Sanctuaries Act, M.G.L. c.132A Secs 12A-16J inclusive and Sec. 18, is the statute which the Department correctly relies upon in its July 24th determination denying Holtec’s application to modify its permit. Multiple provisions in this law forbid Holtec from dumping.
The first is in Section §13(b), in which the statute defines all of Cape Cod Bay, inclusive of Duxbury, Kingston, and Plymouth Bays, as a protected Ocean Sanctuary:
“The Cape Cod Bay Ocean Sanctuary is bounded and described as follows: That body of water known as Cape Cod Bay and lying southerly of the Bay Closing Line between Brant Rock in the Town of Marshfield and Race Point in the town of Provincetown as established on the aforementioned Marine Boundary Map of the Commonwealth, and lying seaward of the mean low-water line; meaning and intending to include: all of that water area and seabed lying in a southerly direction from the aforementioned closing line; all of Provincetown Harbor including portions which may be easterly or northerly of the aforementioned closing line, Wellfleet, Plymouth, and Barnstable Harbors; Plymouth, Kingston, and Duxbury Bays; and the Cape Cod Canal Northerly of the Bourne–Sandwich town boundary, and excluding the water area and seabed of the Cape Cod National Seashore as established by Act on Congress (1961, P.L. 87–126).”51
Section 14 of the Ocean Sanctuaries Act affirms the power and the duty of the Office of Coastal Zone Management (CZM) and the Department of Environmental Protection (MassDEP) to care for Ocean Sanctuaries. “All ocean sanctuaries as described in section thirteen shall be under the care, oversight and control of the office and shall be protected from any exploitation, development, or activity that would significantly alter or otherwise endanger the ecology or the appearance of the ocean, the seabed, or subsoil thereof, or the Cape Cod National Seashore.”52
Section 15(4) of the Act prohibits the “the dumping or discharge of commercial, municipal, domestic or industrial wastes” into any ocean sanctuary:
“Except as otherwise provided in this section, the following activities shall be prohibited in an ocean sanctuary: ….(4) the dumping or discharge of commercial, municipal, domestic or industrial wastes; provided, however, that the department may approve a new or modified discharge of municipal wastewater from a POTW in accordance with section 16G;”53 as will be shown below, the proposed wastewater discharge in question does not qualify for the exemptions laid out at Section 16.
Finally, at Section 18, the Act forbids the Commonwealth from permitting any activities which are prohibited under the Act: “All departments, divisions, commissions, or units of the executive office of energy and environmental affairs and other affected agencies or departments of the commonwealth shall issue permits or licenses for activities or conduct their activities consistently with the act, and shall not permit or conduct any activity which is contrary to the provisions of the Act.”54
It is therefore useful to see how Holtec characterizes the industrial wastewater in question in its application. In Section G of the application, Holtec writes that “The pollutants detected in the treated water that are not subject to promulgated ELGs [effluent limit guidelines] for the industry category and discharge type associated with Outfall 015 include chemical oxygen demand (COD), boron, copper, lead, nickel and zinc.”55 The application continues: “Copper (1.39 µg/L) and lead (0.660 µg/L) are present in the treated water at very low concentrations and will be further reduced in the untreated wastewater after blending with the volumes in the Spent Fuel Pool and Reactor Cavity/Dryer Separator Pit which do not contain detectable concentrations of these metals. Zinc is present at 36.1 µg/L in the treated water and also will be reduced in the blended water. Lead and zinc will likely be diluted to non-detectable levels after mixing with the Ouƞall 010 flow in the discharge canal. The concentration of copper in the treated water (1.39 µg/L ) is similar to the concentration in the intake water (1.69 µg/L) and will therefore have little to no effect on the receiving water ambient concentration.”56
What these statements from Holtec show are three things: the first is that there will be, even after treatment, by their own admission, pollutants in the water, thereby contravening the Ocean Sanctuaries Act. The second point that is necessary to note is that Holtec seems to operate under a mistaken premise, that effluent guideline limits, or ESGs, are relevant here: but they are not. The Ocean Sanctuaries Act does not admit of ESGs, and its standard is clear, and it is strict: no industrial waste, including wastewater, may be discharged into any ocean sanctuary, including Cape Cod Bay. The third thing to note is that Holtec is essentially admitting, in plain sight, how it intends to “game the system” in order to make its pollutants undetectable. But undetectable, as the above shows, is not the same as “not present.” And by Holtec’s own admission, both the radiological pollutant tritium, as well as chemical pollutants — together constituting “industrial waste” (see below) under the meaning of the act – are present.
Indeed, the 1.1 million gallons of industrial wastewater which Holtec seeks to discharge into Cape Cod Bay is in fact covered by the Ocean Sanctuary Act’s definition of “waste.” By Holtec’s own admission, the water in question will contain not only the chemical pollutants discussed above, but also tritium, a radioactive isotope of hydrogen which cannot be filtered out. Because of this, the water in question is plainly waste under the definition given at 301 CMR 27.02: “Wastes means any unwanted, discarded, or environmentally harmful solid, liquid, or gaseous materials resulting from commercial, municipal, domestic, or industrial Activities….”57
Holtec appears to operate under the illusion that Massachusetts statutes treat pollutants in the same fashion as Federal laws. Massachusetts laws draw no distinction between radiological and non-radiological pollutants, and the Ocean Sanctuaries Act in particular lays down a very exacting standard: no industrial waste may be discharged into an ocean sanctuary.
For all of these reasons, the Ocean Sanctuaries Act prohibits the discharge in question. The petitioner’s application is facially illegal and must be denied.
Spurious and pettifogging assertions that the industrial wastewater in question for the present permit application will be rebutted in the section below dealing with counter-arguments. In addition, as will be explained below, the permit modification application before the Department is not covered by any of the exceptions or legacy uses specified under the Act.
The Mass. Endangered Species Act, M.G.L. c.131A, likewise prohibits the discharge of the industrial wastewater in question. At Section 2, the Act states that “Except as otherwise provided in this chapter, no person may take, possess, transport, export, process, sell or offer for sale, buy or offer to buy, nor shall a common or contract carrier knowingly transport or receive for shipment, any plant or animal species listed as endangered, threatened or of special concern or listed under the Federal Endangered Species Act.”58
In addition, “Except as otherwise provided in this chapter, no person may alter significant habitat.”59
The definitions of these relevant terms are provided at Section 1. According to that section, “take” means “in reference to animals, to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct.”60 This definition, it should be noted, is echoed in the definition of “take” included in the MESA regulations at 321 CMR 10.02: “Take, in reference to animals, means to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat.” (Emphasis added).61
“Endangered species” is defined as “any species of plant or animal in danger of extinction throughout all or a significant portion of its range including, but not limited to, species listed from time to time as ''endangered'' under the provisions of the Federal Endangered Species Act of 1973, as amended, and species of plants or animals in danger of extirpation, as documented by biological research and inventory.”62
“Alter” is defined as “to change the physical or biological condition of a habitat in any way that detrimentally affects the capacity of the habitat to support a population of endangered or threatened species.”63
“Special habitat” is defined as “specific areas of the commonwealth, designated in accordance with section four, in which are found the physical or biological features important to the conservation of a threatened or endangered species population and which may require special management considerations or protection.”64
321 CMR 10 is the relevant portion of Commonwealth regulations, promulgated by the Mass. Division pursuant to M.G.L. c.131A. At 321 CMR 10.01(2), describing the purpose of the regulations, it states “The purpose of 321 CMR 10.00 is to define and clarify the procedures and rules necessary for the agency to carry out responsibilities under M.G.L. c. 131A, Massachusetts Endangered Species Act. 321 CMR 10.00 establishes a comprehensive approach to the protection of the Commonwealth’s Endangered, Threatened, and Special Concern species and their habitats. Regulations include provisions for the protection of habitat areas (Significant Habitat) where in the Division’s opinion a Project or Activity would result in the Take of any Threatened or Endangered species.”65
At 321 CMR 10.90, the Commonwealth lists the following species, all of which are found in Cape Cod Bay, and which constitutes their habitat: the North Atlantic Right Whale (Eubalaena glacialis) is listed as Endangered; Humpback Whales (Megaptera novaeangliae) are listed as Endangered; the Roseate tern (Sterna dougallii) is listed as Endangered; the Piping Plover (Charadrius melodus) is listed as Threatened. 66
The North Atlantic Right Whale and Roseate Tern are listed as Endangered, and the Piping Plover as Threatened, by the Federal government at 50 CFR § 17.11.67 The North Atlantic population of the Humpback Whale is not a federally listed species, though the species is covered by the U.S. Marine Mammals Protection Act of 1972 (16 U.S.C. 1361),68 and, as noted above, is listed as Endangered by the Commonwealth of Massachusetts.
All of these species have been found in Cape Cod Bay, and some in particular rely on Cape Cod Bay for feeding activity and/or the rearing of their offspring.
The North Atlantic Right Whale is listed as Endangered at 321 CMR 10. According to the Massachusetts Natural Heritage and Endangered Species Program (NHESP),“North Atlantic Right Whales concentrate in Cape Cod Bay and the Great South Channel east of Nantucket Island in small numbers from December to March, and in larger numbers in April and May. These areas are important feeding grounds for the species because of the unusually dense concentrations of zooplankton.” NHESP notes that “North Atlantic Right Whales are occasionally observed from the beaches of Cape Cod in the spring, where they generally feed on zooplankton, including copepods, euphausiids, and cyprids.”69
NHESP describes the North Atlantic Right Whale population: “It is believed that the western North Atlantic Right Whale population now includes about 450 individuals.”70 According to an April 2nd, 2023, story by Emma Bowman of National Public Radio, approximately 70 Right Whales were observed last spring in Cape Cod Bay, constituting about one fifth of the total population of the species.71 The National Marine Fisheries Service (NOAA Fisheries) designates Cape Cod Bay and adjacent waters as Critical Habitat for Right Whales, as shown in the map below, and as described in a December, 2015 source document. Cape Cod Bay is particularly important as a feeding ground in the late winter and early spring, according to this document: “In New England, peak abundance of feeding right whales occurs in Cape Cod Bay, usually beginning in late winter: “In New England, peak abundance of feeding right whales occurs in Cape Cod Bay, usually beginning in late winter. In early spring (May), peak right whale abundance occurs in Wilkinson Basin to the Great South Channel (Kenney et al. 1995). In late June and July, right whale distribution gradually shifts to the Northern Edge of Georges Bank. In summer and fall, much of the population is found in the Bay of Fundy and around Roseway Basin (Winn et al. 1986, Kenney et al. 1995, Kenney et al. 2001).”72
The document further describes the importance of Cape Cod Bay as habitat for the North Atlantic Right Whale: “Within the geographical area occupied by the species, the specific area on which are found the combination of physical and biological features of foraging habitat that are essential to the conservation of North Atlantic right whales encompasses a large area within the Gulf of Maine-Georges Bank region, including the large embayments of Cape Cod Bay and Massachusetts Bay and deep underwater basins. This area incorporates state waters from Maine through Massachusetts, as well as federal waters.”73
NOAA Fisheries provides the following map of designated critical habitat for North Atlantic Right Whales, including Cape Cod Bay.
(North Atlantic Right Whale Critical Habitat Northeastern US Foraging Area Unit 1, via NOAA Fisheries: https://www.fisheries.noaa.gov/resource/map/north-atlantic-right-whale-critical-habitat-map-and-gis-data74 )
As with both Piping Plovers under M.G.L. c. 131A below, and as with the Crimes Against Public Health Act below, there is an issue of fundamental fairness and of equal treatment under the law here. Both fishermen and state and federal regulators have made great effort — and it should be noted, often under contentious conditions — to balance the continued operation and existence of the Massachusetts fishing and seafood industry with the requirements of state and federal laws and regulations with respect to Atlantic Right Whale Habitat.75 It is fundamentally and flagrantly unfair that these efforts should be required of these parties, while Holtec seeks to openly violate the laws with what it presumes to be impunity. But the laws do apply to Holtec, and they must comply with them, just as every other inhabitant of the Commonwealth and the United States must. Holtec is not entitled to ignore the laws simply because it is a multi-billion dollar corporation.
The Humpback Whale (Megaptera novaeangliae) is listed as Endangered at 321 CMR 10.90, and is found in the waters of Cape Cod Bay, though not in the same numbers and magnitude as the North Atlantic Right Whale. Nevertheless, as shown in a July, 2022, story in The Boston Globe, humpback whales do in fact venture into the waters of Cape Cod Bay for the purposes of feeding:
“According to Chisholm and the Whale and Dolphin Conservation, a Plymouth-based nonprofit, humpback whales have been coming close to shore off Manomet Point to feed on an abundance of bait fish.
“Although not commonly seen this close to shore, humpback whales will follow their food to shallower waters,” the conservation group said.76
According to Massachusetts NHESP, “Humpbacks can be found feeding in the Massachusetts area from spring through fall. Common feeding grounds for these whales include Jeffery's Ledge, Stellwag[e]n Bank, and waters off the coasts of Maine, New Hampshire, Cape Ann, and Cape Cod in the months of April through October. Northern whales bring their calves here to feed.”77
The Piping Plover is listed as Threatened at 321 CMR 10.90. Critical habitat for Piping Plovers occurs throughout coastal Massachusetts, including the many sandy beaches surrounding Cape Cod Bay. NHESP describes Piping Plover (Charadrius melodus) habitat thus: “Piping Plovers in Massachusetts nest on sandy coastal beaches and dunes, which are relatively flat and free of vegetation. Piping Plovers often build their nests in a narrow area of land between the high tide line and the foot of the coastal dunes; they also nest in Least Tern colonies. Nesting may also occur on vegetated dunes and in eroded areas behind dunes.”78 According to NHESP, “Massachusetts has the largest breeding population of Piping Plovers along the Atlantic Coast.”79
In the Massachusetts Piping Plover Habitat Conservation Plan, priority habitat for piping plovers is shown by Figures 2-3, 2-5, and 2-6 – on the western, eastern, and southern shores of Cape Cod Bay, respectively:
(Figure 2-3 from the 2015 Mass. Piping Plover Habitat Conservation Plan, showing Piping Plover Priority Habitat on the western shore of Cape Cod Bay, including Duxbury, Kingston and Plymouth Bays, as well as Ellisville Harbor, a Massachusetts Area of Critical Environmental Concern.80)
(Figure 2-5 from 2015 Mass. Piping Plover Habitat Conservation Plan, showing the eastern shore of Cape Cod Bay, including the Wellfleet Harbor Area of Critical Environmental Concern.81)
(Figure 2-6 from the 2015 Mass. Piping Plover Habitat Conservation Plan, showing Piping Plover Priority Habitat on the southern shore of Cape Cod Bay, including the Sand Neck Barrier Beach System ACEC.82)
The preservation of Piping Plover populations under both the U.S. and Massachusetts Endangered Species Acts has been a source of considerable controversy and heated comment in recent decades in the Towns of Plymouth County. The Federal and state governments, the governments of the several Towns, non-profit environmental and conservation organizations, and the citizens of the Commonwealth have struggled to balance established use rights with the strictures of both the US and Massachusetts Endangered Species Acts and attendant regulations. Great and significant efforts have thus been made by a number of local actors to preserve this species. This burden has been significant, and has been the source of considerable rancor in our Towns.83 Holtec is not exempt from the same standards with respect to Piping Plovers which apply to the several Towns and everyday beachgoers on the shores of Cape Cod Bay.
As with Atlantic Right Whales above, and as with the Crimes Against Public Health Act below, we approach here an issue of fundamental fairness and equality of treatment under the law. Holtec is not entitled to ignore the law simply because it is economically powerful, and simply because it believes laws ought not and therefore do not apply to it. They do apply to Holtec, and Holtec must respect the US and Massachusetts Endangered Species Acts in precisely the same ways the several Towns and environmental/conservation non-profit organizations, and the people of the Commonwealth must with respect to Piping Plover habitat.
The Roseate Tern is listed as Endangered at 321 CMR 10.90. NHESP notes that “In a sense, the Roseate Tern is emblematic of the Commonwealth, because for the past century, about half the northeastern population has nested in Buzzards Bay and outer Cape Cod.” However, recent population trends are cause for concern: The Roseate is now considered an Endangered Species. The population, which increased from the 1980s through 2000, is now in decline. Several projects are in progress to restore the Roseate to historical breeding locations in Massachusetts.”84
According to NHESP, there are three nesting Roseate Tern colonies located on Cape Cod Bay: one in the vicinity of Wellfleet Harbor, one in the vicinity of Barnstable Harbor, and one in the vicinity of Plymouth-Kingston-Duxbury Bays. The former two colonies were established prior to 1997; the latter colony was established after 1997.85
With respect to the petitioner’s proposed discharge into Cape Cod Bay, MassDEP should apply in this instance the reasoning laid out by Justice Stevens in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, that merely modifying a listed species’ habitat constitutes a take under the U.S. Endangered Species Act (16 U.S.C. §1531 et seq.); precisely the same logic applies to the Massachusetts Endangered Species Act. Justice Stevens, writing for the Court, stated:
“The [United States] Secretary [of the Interior], on the other hand, submits that the § 9 prohibition on takings, which Congress defined to include "harm," places on respondents a duty to avoid harm that habitat alteration will cause the birds unless respondents first obtain a permit pursuant to § 10.
The text of the Act provides three reasons for concluding that the Secretary's interpretation is reasonable. First, an ordinary understanding of the word "harm" supports it. The dictionary definition of the verb form of "harm" is "to cause hurt or damage to: injure." Webster's Third New International Dictionary 1034 (1966). In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.
Respondents argue that the Secretary should have limited the purview of "harm" to direct applications of force against protected species, but the dictionary definition does not include the word "directly" or suggest in any way that only direct or willful action that leads to injury constitutes "harm."[10] Moreover, unless the statutory term "harm" encompasses indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that § 3 uses to define "take." A reluctance to treat statutory terms as surplusage supports the reasonableness of the Secretary's interpretation. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988).[11]
Second, the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid. In TVA v. Hill, 437 U. S. 153 (1978), we described the Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Id., at 180. Whereas predecessor statutes enacted in 1966 and 1969 had not contained any sweeping prohibition against the taking of endangered species except on federal lands, see id., at 175, the 1973 Act applied to all land in the United States and to the Nation's territorial seas. As stated in § 2 of the Act, among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . ." 16 U. S. C. § 1531(b).”86
Given the language of c.131A, as well as the regulations at 321 CMR 10; and given the biological and ecological evidence regarding the importance of Cape Cod Bay for listed Endangered and Threatened Species, and interpreting these facts in light of Justice Stevens’ decision above in Babbitt v. Sweet Home, we are impelled to the conclusion that the discharge of 1.1 million gallons of radioactively and chemically contaminated wastewater would modify the critical breeding and offspring-raising habitat of Cape Cod Bay for the Right Whale, the Roseate Tern, and the Piping Plover. It would therefore constitute a “take” under the Massachusetts Endangered Species Act, as well as under the United States Endangered Species Act.
There are at least two further Massachusetts statutes which prohibit the discharge proposed by Holtec, and therefore impel the conclusion that MassDEP must deny Holtec’s permit modification application.
The Mass. Oil and Hazardous Material Release Prevention Act, M.G.L. c. 21E, is likewise relevant here – it prohibits the proposed discharge, and therefore provides further reason that MassDEP should deny Holtec’s permit modification request. The industrial wastewater in question plainly falls under the definition of “hazardous material” under the Act (M.G.L. c. 21E Sec. 2): “Hazardous material” is defined as “material including but not limited to, any material, in whatever form, which, because of its quantity, concentration, chemical, corrosive, flammable, reactive, toxic, infectious or radioactive characteristics, either separately or in combination with any substance or substances, constitutes a present or potential threat to human health, safety, welfare, or to the environment, when improperly stored, treated, transported, disposed of, used, or otherwise managed.”87
Again at Section 2, the Act defines “waters of the commonwealth” as “all waters within the jurisdiction of the commonwealth, including, without limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, coastal waters and groundwaters. The term shall not include impoundments of chemical wastes.”88
“Response action” is defined as “assess, assessment, contain, containment, remove and removal.”89
Section 4 of Chapter 21E seems relevant to the present situation with Holtec’s industrial wastewater and MassDEP’s authority to prevent the release of hazardous material:
“The department, whenever it has reason to believe that oil or hazardous material has been released or that there is a threat of release of oil or hazardous material, is authorized to take or arrange for such response actions as it reasonably deems necessary.”90
In addition, MassDEP is authorized at Section 6 of the Act to prevent the release of hazardous material:
“The department may specify reasonable requirements, applicable to sites and vessels where releases of hazardous material or oil might occur and to activities which might cause, contribute to, or exacerbate a release of hazardous material or oil, to prevent and control, and to counter the effects of, such releases.”91
The Crimes Against Public Health Act, M.G.L. c. 270 Sec. 16, is also relevant here. This section states that “Whoever places, throws, deposits or discharges or whoever causes to be placed, thrown, deposited or discharged, trash, bottles or cans, refuse, rubbish, garbage, debris, scrap, waste or other material of any kind on a public highway or within 20 yards of a public highway, or on any other public land, or in or upon coastal or inland waters, as defined in section 1 of chapter 131, or within 20 yards of such waters, or on property of another, or on lands dedicated for open space purposes, including lands subject to conservation restrictions and agricultural preservation restrictions as defined in chapter 184, shall be punished by a fine of not more than $5,500 for the first offense and a fine not to exceed $15,000 for each subsequent offense….”92
Particularly relevant here is an issue of fundamental fairness: the other economic actors who operate in and around Cape Cod Bay are all under obligations to follow the sections strictures against the discharge of waste into waters of the Commonwealth. Holtec is no different. Simply because a company has significant financial resources does not mean that it is entitled to any kind of special treatment; rather, it must obey the same laws as everyone else in the Commonwealth.
VII. Massachusetts Regulatory Law
Under MassDEP’s regulations, the Department must deny Holtec’s application to modify its permit, because the application fails to meet the requirements laid out by those regulations. MassDEP’s own regulations with respect to antidegradation standards likewise prohibit the proposed discharge. Discharge into Outstanding Resource Waters, such as the waters off the Cape Cod National Seashore, is simply prohibited.93 Moreover, discharge into High Quality Waters, which I understand the Department presumes the majority of Cape Cod Bay to be, is allowed only if “the discharge is necessary to accommodate important economic or social development in the area in which the waters are located.”94
But the opposite is the case: the only thing the proposed discharge will “accommodate” is Holtec’s bottom line; in fact, the discharge precisely threatens “important economic and social development” in our area. Cape Cod Bay is home to a Blue Economy — including fishing, marine transport, recreation, marine science, and marine infrastructure — that is worth at least $1.78 billion, and probably considerably more (see below). These would not be “accommodated” by discharge — indeed, the opposite is the case.
VIII. Scientific Evidence
The weight of scientific evidence likewise stands counter to Holtec’s proposed permit modification.
The National Academies of Science Biological Effects of Ionizing Radiation VII Report notes that even low levels of radiation can produce effects at the level of the basic genetic code of biological cells:
“At low doses, damage is caused by the passage of single particles that can produce multiple, locally damaged sites leading to DNA double-strand breaks (DSBs).”95
A paper by Clapp and Cobb, in its abstract, describes its findings with respect to leukemia, other cancers, and birth defects in the Plymouth area. “We investigated the patterns of leukemia, other cancers, and adverse birth outcomes in the communities surrounding the Pilgrim Nuclear Power Plant in Plymouth, Massachusetts. Data were taken from state vital records and cancer registry files. Information about coastal meteorologic conditions was used to estimate the population exposed to radioactive emissions in the mid-1970s. The temporal relationships of infant mortality, leukemia, thyroid cancer, and other diseases suggest that residents of local communities around and to the north of the power plant are at increased risk of health effects resulting from exposure to ionizing radiation. Leukemia (excluding chronic lymphocytic leukemia), in particular, was approximately 75% more frequent in 1982-1984 in the Plymouth area compared to the rest of the State.”96
It is worthwhile to examine the likely flow patterns of the wastewater in question. Dr. Irina Rypina, a physical oceanographer, is the lead author on a paper that was published last year in the Journal of Environmental Radioactivity. The authors describe the study thusly:
“Near-surface drifter observations were used to study the spreading pathways in and around the Cape Cod Bay from a source region located just offshore of the Pilgrim Nuclear Power Station. The study was motivated by the recent closing of the power plant and a possible release of accumulated wastewater. The investigation applies several different techniques to the drifter data set to estimate and quantify various aspects of the circulation and spreading…. . Our analysis suggests weaker spreading of the wastewater plume inside the Bay than outside, and sensitivity of the advection pathways to the location of the release. Statistical techniques predicted that part of the plume would likely be advected cyclonically around the inner coastline of the Bay towards the more quiescent eastern regions, while another part of the plume would likely pass close to the tip of Cape Cod and the beaches of the Outer Cape.”97
According to Dr. Rypina, “The southward flowing component makes its way into the southeastern bay in approximately 7–10 days; the offshore flowing portion reaches Race Point in 3–6 days, hugs the tip of Cape Cod and merges with the coastal current along the Outer Cape; and the northward-flowing component proceeds north for about 1 day before turning to the southeast and heading towards Race Point to join the current flowing southward along the Outer Cape. The probability map shows a distinct location of higher accumulation (yellow/orange) in the Bay near 70.2◦W, as well as elevated probability in the vicinity of Race Point and near the Outer Cape beaches.”98
(Rypina et al., “Fig. 3. Evolution of the wastewater plume computed using the transit matrix approach. (a–f) Percentage (P in %) of the initial wastewater concentration per bin after 0.5, 1, 3, 5, 10, and 15 days since release. Black rectangle around PNPS (black diamond) shows the release domain.”99)
Cape Cod Bay already faces a number of environmental and ecological threats. Adding radioactively and chemically contaminated wastewater to it will emphatically not be to its betterment, but to its detriment.
The Bay has been plagued by incidents of hypoxia in recent years. According to the Division of Marine Fisheries, “During late summer 2019 and 2020, bottom waters in southern Cape Cod Bay (CCB) became depleted of dissolved oxygen (DO). Bottom DO levels became severely hypoxic (<2mg/L) in water depths from 10 to 25 m (~30–80 ft) from west of the Cape Cod Canal east to Barnstable Harbor. In mid-September 2019, there were numerous reports of dead lobsters and scallops from the local fishing community indicating that DO levels had dropped to lethal levels in this region. In response to this unprecedented event, DMF began working with other scientists and the local lobster fleet to begin to understand what was driving hypoxia in southern CCB.”100
Notably, this is the same region of the bay in which Dr. Rypina’s research indicates there will likely be significant lingering of the contaminated industrial wastewater in question.
Eel grass die-off is a significant concern in regional waters, including in Duxbury, Kingston, and Plymouth Bays, arms of Cape Cod Bay and included in a protected ocean sanctuary per the Ocean Sanctuaries Act. According to a May, 2016, paper by Kathryn Ford and Jillian Carr on behalf of the Massachusetts Division of Marine Fisheries, looking at data extending back to 1951, the Duxbury-Kingston-Plymouth embayment had also experienced significant and disturbing losses in eel grass cover:
“DMF [Division of Marine Fisheries] remapping of DEP [Dept. of Environmental Protection] aerial photographs has confirmed large losses of eelgrass in DKP [Duxbury-Kingston-Plymouth Bays]. The embayment has lost as much as 71% of its eelgrass between 1951 and 2014, with many beds shrinking and some disappearing altogether,” wrote Ford and Carr.101
“The median loss rate is 27 [acres per] year and the loss rate dramatically accelerated between 2012 and 2014. The loss is characterized by dense beds thinning over time and eventually disappearing. All areas of DKP are affected and losses are occurring at a variety of water depths. The loss is likely caused primarily by degrading environmental conditions due to water quality impairments from runoff and wastewater, the effects of which are exacerbated by temperature increase. Once stressed and impaired in such a way, eelgrass is more vulnerable to weather and hydrodynamic related impacts,” wrote Ford and Carr.102
(Shrinking eelgrass beds over time in Duxbury, Kingston, and Plymouth Bays; photo credit — Ford and Carr for the MA Division of Marine Fisheries, 2016.103)
Nutrient loading also poses a threat to our bays. A paper by Dr. Matthew H. Long, a coastal geochemist at the Woods Hole Oceanographic Institution (WHOI), and Jordan W. Mora, a restoration ecologist at the Association to Preserve Cape Cod (APCC), demonstrates that human-associated activities, particularly eutrophication, or nutrient-loading, primarily from runoff, and climate change, have played a significant role in fundamentally changing the ecology of Waquoit Bay, on the southern shore of Cape Cod and forming part of the boundary between the Towns of Falmouth and Mashpee. Though Waquoit Bay is not an arm of Cape Cod Bay, the physical processes observed by Long and Mora apply to all shallow coastal estuaries and embayments, including those in Cape Cod Bay, such as Wellfleet Harbor, Barnstable Harbor, Ellisville Harbor, and Duxbury-Kingston-Plymouth Bays.104
IX. Economic Threats Posed by Discharge: The Blue Economy, Recreation and Tourism, and Real Estate
The economic consequences of discharge could prove extremely grave. As the present experience of Japanese fishermen demonstrates, perception of radioactive contamination alone — irrespective of the many serious biological and health concerns associated with the proposed discharge — is enough to seriously damage and render unmarketable a once-thriving fishing industry. This summer, in response to the decision by the Government of Japan and TEPCO to discharge radioactive wastewater into the North Pacific Ocean, China banned seafood from Japan, according to an August 24th story in The Los Angeles Times:
“People inside and outside the country protested the wastewater release, with Japanese fishing groups fearing it will further damage the reputation of their seafood and groups in China and South Korea raising concerns, making it a political and diplomatic issue.
In response to the wastewater release, Chinese customs authorities banned seafood from Japan, customs authorities announced Thursday. The ban started immediately and will affect all imports of ‘aquatic products’ including seafood, according to the notice. Chinese authorities said they would ‘dynamically adjust relevant regulatory measures as appropriate to prevent the risks of nuclear-contaminated water discharge to the health and food safety of our country.’”105
This serves as a cautionary note for the Cape Cod Bay region and for the Commonwealth and the United States as a whole.
The larger Blue Economy in Massachusetts as a whole, and the greater Cape Cod Bay regions, including the South Shore (Plymouth County), Cape Cod (Barnstable County), and the Islands (Nantucket and Dukes County) is of great significance.
According to the 2016 Cape Cod Blue Economy Project Implementation Plan, the Blue Economy can be defined as the larger economic complex made up by the following eight sectors: Tourism and Recreation; Ship and Boat-Building; Renewable Living Resources; Marine Transportation; Marine Construction and Facilities; Physical Resource Extraction; Marine Technology; and Research, Education, Advocacy & SupportServices. Taken together, the Blue Economy on Cape Cod (Barnstable County), southern Plymouth County (Plymouth and Wareham), and the Islands (Dukes and Nantucket Counties) totaled $1.4 billion in 2016.106 Given inflation, that is equivalent to approximately $1.78 billion in 2023 dollars, according to the Bureau of Labor Statistics’ inflation calculator.107
A critical source in the characterization of the local economic impacts of any potential discharge comes from a May 31, 2023, letter from my friends and colleagues Mary and James Lampert, writing as individuals to MassDEP, requesting a classification change for Cape Cod Bay in terms of antidegradation standards. In the course of that letter, Mr. and Mrs. Lampert, who are members of the Town of Duxbury Nuclear Advisory Committee (Mrs. Lampert is chair), sit on the Massachusetts Nuclear Decommissioning Citizens Advisory Panel (NDCAP), and are, like me, members of the grassroots Save Our Bay MA coalition, describe sectors of the economy that are threatened by Holtec’s proposed discharge.108
Dozens of shellfish farms, including the globally recognized Island Creek Oysters, are located and grow and harvest seafood in Duxbury, Kingston, and Plymouth Bays, providing hundreds of both permanent and seasonal jobs and providing an important boost to the local economy. Across Cape Cod Bay, Wellfleet Harbor likewise hosts a thriving shellfishing and aquacultural economy.
According to a 2017 report from the UMass Dartmouth Public Policy center entitled Navigating the Global Economy: A Comprehensive Analysis of the Massachusetts Maritime Economy, “aquaculture in Massachusetts is dominated by shellfish, with more than 85 percent of the state’s aquaculture operations farming oysters and clams. In 2015, the Massachusetts Division of Marine Fisheries issued shellfish propagation permits to 331 private aquaculture growers cultivating over 1,100 acres in 30 municipalities throughout the Commonwealth. These operations landed over 37 million American oysters with a value of $21.5 million, while more than 6.5 quahog pieces were landed for a total value of 1.4 million. The number of oysters landed increased by over 25 million from 2004 to 2014.”109
Recreation and Tourism constitute a vital sector of the economy of the Cape Cod Bay region. In October, 2000 — over 2 decades ago — the Cape Cod Commission estimated the region saw 5.23 million tourists annually; with population growth, that number has surely increased.110 In 2020, according to the National Park Service, there were over 4 million visitors to just the Cape Cod National Seashore111 — which touches Cape Cod Bay in Provincetown and Wellfleet, and includes its eastern bounds, Race Point.
According to Mr. and Mrs. Lampert’s May 31st letter to the Department, the value of direct domestic tourism spending in Barnstable County was approximately $1.37 billion.112
Evidence of the effect of the present public controversy on the local real estate sector, to say nothing of the effects of the actual discharge itself were it to occur, were provided by Plymouth Realtor and Save Our Bay MA Member Christine Silva to the July 25th, 2022, meeting of NDCAP:
“Currently we are now experiencing the impact of the proposed plan within our markets. Clients are losing interest in our area due to the concerns about pollution, negative health impacts, and long term value loss. The numbers correlate with our observations with fewer sales, lower prices, as compared to our statewide averages. The average Single Family home sale from Jan-April 2022, home to the Pilgrim Nuclear Power Plant was 12% lower than statewide averages. Meanwhile the number of homes sold dropped across the South Shore, a decrease of 50% more than statewide averages. This data comes from the Massachusetts Association of Realtors.
Just last week I overheard a woman telling her daughter not to order oysters in a local restaurant, exclaiming that the plant is probably dumping now.
There are alternatives to dumping even if those alternatives are expensive. Considerable financial resources have already [been] provided to Holtec by the taxpayers.”113
Taken as a whole, it is safe the economic value of the maritime economy, recreation and tourism, and real estate in the Cape Cod Bay region reaches into the billions of dollars. It is gravely threatened by the proposed discharge of industrial wastewater into Cape Cod Bay, as the deeply concerning example of the recent wastewater release from Fukushima in Japan, and the subsequent Chinese banning of Japanese seafood, demonstrates. Perception and reputation are real economic factors, and Holtec must not be allowed to threaten a multi-billion-dollar regional economy in order to save a miniscule portion of its already massive profit margins.
X. Environmental Justice and Environmental Justice Populations
The Department must take cognizance of those neighborhoods and populations in the Commonwealth which it designates as Environmental Justice Populations. According to MassDEP, “In Massachusetts, an environmental justice population is a neighborhood where one or more of the following criteria are true:
the annual median household income is 65 percent or less of the statewide annual median household income
minorities make up 40 percent or more of the population
25 percent or more of households identify as speaking English less than "very well"
minorities make up 25 percent or more of the population and the annual median household income of the municipality in which the neighborhood is located does not exceed 150 percent of the statewide annual median household income.
The Executive Office of Energy and Environmental Affairs (EEA) uses data from the 2019 American Community Survey to identify environmental justice population areas in Massachusetts.”114
In our region, the following Towns on or near Cape Cod Bay are home to environmental justice populations: Marshfield, Halifax, Plymouth, Carver, Wareham, Bourne, Sandwich, Mashpee, Falmouth, Barnstable, Yarmouth, Dennis, Brewster, Orleans, Eastham, Truro, and Provincetown.
Surely any genuine and universally applied concern for the requirements of environmental justice would include these populations here in Plymouth and Barnstable Counties, and not just those in (some, but not other) faraway places.
The Department and the Executive Office of Energy and Environmental Affairs, for their part, must likewise take cognizance of these populations, and guard their rights in this matter.
(Environmental Justice Populations in the Cape Cod Region, via MassDEP.115)
XI. The Department’s Duty to Steward and Guard Public Lands and Waters
Cape Cod Bay is lined with public lands and waters. They are owned by, variously, the United States via the Federal Government, the Commonwealth of Massachusetts, and the several Towns of the region. In addition, as noted elsewhere, numerous private non-profit organizations also hold land that, though not public per se, are put to public use.
There is, as with public waters, a clause of Magna Carta, Clause 47, which provides ancient precedent for the Commonwealth’s just powers to preserve common lands and adjacent waters. Clause 47 of the 1215 Magna Carta, concerning the placing of afforested (meaning royally-enclosed land rather than woodland ecosystems per se; “disafforested” below means, somewhat counter-intuitively, placing the enclosed land back into common possession) land back into the common sphere of the realm, directly concerns the common natural resources of England:
“All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly."116
The Charter of the Forests made actual, with respect to the commons of the realm, what Magna Carta had guaranteed more broadly. It was the fulfillment of the promises contained in Magna Carta.117
The commons tradition from the colonial and early republican era in Massachusetts have been dealt with above, when the Towns took an overwhelming preeminence of position in the regulation of the commons. In the 19th and 20th centuries, in the period subsequent to the industrial revolution, the Commonwealth played an increasingly important role in the preservation of lands and waters.118 In the years after the Second World War, especially with the creation of the Cape Cod National Seashore in 1961, the Federal Government came to play an increasingly important role in the regulation of the commons of the region.119
A listing of both public lands and waters — municipal, state, and federal — as well as a number of quasi-public open spaces held by non-profits, either adjacent to the Bay and its arms and tributaries, or directly abutting it, is illustrative.
The following are owned either by individual Towns, or by conservation non-profits and devoted to their preservation and public enjoyment; this list is a sampling, and non-exhaustive; the owners are in parentheses: in Marshfield, Wharf Creek-Estes Woods (Town of Marshfield) and adjacent Daniel Webster Wildlife Sanctuary (Massachusetts Audubon Society), on Green Harbor River, which empties into the Bay; in Duxbury, Common Island (Town of Duxbury) on Duxbury Bay, and Duxbury Beach (Duxbury Beach Reservation), dividing Duxbury Bay from Cape Cod Bay; in Kingston, Grays Beach Park (Town of Kingston), on Kingston Bay; in Plymouth, Holmes Field (The Trustees of Reservations), and adjacent Nelson Memorial Park (Town of Plymouth), above the mouth of Plymouth Harbor; in Bourne, The Strand (Town of Bourne), on Cape Cod Bay; in Sandwich, Town Neck Beach (Town of Sandwich), on Cape Cod Bay; in Barnstable, Great Marshes Conservation Area (Town of Barnstable), on Barnstable Harbor; in Yarmouth, Lonetree Creek Conservation Area (Town of Yarmouth), at the mouth of Barnstable Harbor; in Dennis, The George H. Chapin Memorial Beach (Town of Dennis), on Cape Cod Bay; Saint’s Landing (Town of Brewster), in Brewster, on Cape Cod Bay; Skaket Beach (Town of Orleans), on Cape Cod Bay in Orleans; Hatch Beach (Town of Eastham), on Cape Cod Bay, in Eastham; in Wellfleet, Mayo Beach, on We (Town of Wellfleet); Fisher Beach (Town of Truro), separating Pamet Harbor from Cape Cod Bay, and across the harbor, Little Island Meadow (Truro Conservation Trust); and in Provincetown, MacMillan Wharf (Town of Provincetown), on Provincetown Harbor.120
These public lands constitute an essential resource of the Commonwealth, in ecological, economic, recreational, aesthetic, and spiritual terms, and the Department should protect them by denying Holtec’s permit application.
XII. Arguments from Self-Determination: The Democratic Will of the Several Towns
The proposed discharge by Holtec of the industrial wastewater in question has galvanized a remarkable mass movement across the Cape Cod Bay region, garnering overwhelming support at the level of Town Meetings, ballot questions, and the continually expressed and eloquent support of the local State and Federal legislative delegations. This coalition has been extremely broad, uniting people of widely disparate views and diverse backgrounds; indeed, there are few matters besides the manifest illegality, injustice, and imprudence of Holtec’s proposed dumping, and this coalition has achieved remarkable majorities locally. Taken together, these provide one of the most compelling arguments to deny Holtec’s application to modify its permit: that dumping stands contrary to the manifest democratic will of the several Towns surrounding Cape Cod Bay.
Every Town on Cape Cod, as well as on Martha’s Vineyard, and in Plymouth County, Duxbury and Scituate, has either passed an article at Town Meeting, or approved ballot questions expressing opposition to and disapproval of dumping.
The Plymouth Select Board has been unanimous and outspoken in its opposition to Holtec’s proposed discharge. It has been joined in this by the Select Boards of her sister towns, including Duxbury, Scituate, and Wareham.
The democratic will of the people of the several Towns surrounding Cape Cod Bay is clear, it is opposed to dumping, and the Department must take cognizance of this democratic right to self-determination when rendering its decision.
XIII. Refuting Holtec and Supporter’s Arguments
Before closing, it is necessary to refute some of the arguments that have been made by Holtec and their allies and supporters in favor of their application to modify their permit. These arguments are of varying degrees of seriousness. Some are simply logical non sequiturs: whether or not nuclear power is good or bad, whether or not a particular individual has a positive or a negative view of wind energy are irrelevant to the question before the Department: which is, should Holtec’s application to modify its permit be granted or denied, based upon relevant legal and factual criteria; this paper has argued that the weight of evidence clearly impels the conclusion that it must be denied.
Nevertheless, it is important to rebut several arguments that were made at the August 24th public hearing held at Plymouth Town Hall.
The first of these is that the discharge is not in fact new. But the discharge is in fact new, and we know it is new because Holtec tells us it is new in its application, repeatedly: (“This application for modification of NPDES Permit No. MA0003557 to authorize discharge of a new source of industrial wastewater”, at Section E; “The industrial wastewater proposed for discharge is a New Source,” at Section F).
One former Holtec employee, who sits on NDCAP, has made the specious and pettifogging assertion that the industrial wastewater which Holtec seeks to discharge is not actually “waste.” However, this is contradicted by Holtec’s own application, which refers on multiple occasions to the water in question as “industrial wastewater” (“This application for modification of NPDES Permit No. MA0003557 to authorize discharge of a new source of industrial wastewater”, at Section E; “The industrial wastewater proposed for discharge is a New Source,” at Section F.)
In addition, the industrial wastewater in question is “waste” under the plain meaning of the Ocean Sanctuaries act under the definition given at 301 CMR 27.02: “Wastes means any unwanted, discarded, or environmentally harmful solid, liquid, or gaseous materials resulting from commercial, municipal, domestic, or industrial Activities, including, but not limited to garbage, snow, thermal discharges, saline discharges, and sewage. Waste does not include approved and licensed dredge spoils, approved and licensed stormwater discharges, or snow disposal consistent with Department guidance.”121 The water is quite clearly “unwanted,” since Holtec wishes to dump it into the bay; it is “environmentally harmful,” containing both radionuclides and chemical pollutants, including heavy metals; it is “liquid”; and it is quite clearly “resulting from industrial Activities.” It is therefore a “waste” under the Act; simply because the petitioner and its allies and former employees may not like this definition does not make it any less binding as a legal definition. We do not get to pick and choose which laws we would like to follow, and which we would not; rather, we are required to follow them all or face sanction, either civil, criminal, or both.
Nor is the proposed discharge covered under any of the exemptions listed in Section 16 of the Ocean Sanctuaries Act. The plant no longer produces electricity. This is relevant because Section 16 states, in part, that the Act does not apply to “the planning, construction, reconstruction, operation and maintenance of industrial liquid coolant discharge and intake systems and all other activities, uses and facilities associated with the generation, transmission, and distribution of electrical power, provided that all certificates, licenses, permits and approvals required by law are obtained therefor, and provided, further, that such activities, uses and facilities shall not be undertaken or located except in compliance with any applicable general or special statutes, rules, regulations or orders lawfully promulgated; the operation and maintenance of existing municipal, commercial or industrial facilities and discharges where such discharges or facilities have been approved and licensed by appropriate federal and state agencies….”122
Pilgrim did not begin commercial operation until December 1, 1972.
The original Ocean Sanctuaries Act was enacted in 1970.123 The Cape Cod Bay Ocean Sanctuary was established through an Act of the Legislature on September 9th, 1971.124
Pilgrim was not an operating power plant on Sept. 9th, 1971, and therefore was not an “existing” industrial use under the meaning of Section 16 of the Act. Nor is the plant presently engaged in the “the generation, transmission, and distribution of electrical power.”
This argument therefore fails on these grounds. It fails additionally to meet the requirements laid out in Section 16, namely, compliance with relevant laws, such as the Massachusetts Ocean Sanctuaries Act, the Massachusetts Endangered Species Act, the Massachusetts Oil and Hazardous Materials Act, and the Crimes Against Public Health Act, and as shown above, the application fails to meet the standards laid out under Massachusetts regulatory law, particularly antidegradation standards laid out at 314 CMR 4.
On the whole, the arguments made by Holtec and its allies fail to meet muster, and must be rejected.
To rebut a frequent assertion of Holtec and its erstwhile allies: the industrial wastewater in question is not “ours” — it is Holtec’s — Holtec bought it, and Holtec owns it. Conversely, the logic of this tendentious and frankly post facto argument is such that it holds to have validity in perpetuity a decision made five decades ago, upon partial information, and the terms of which one party is seeking to change (the agreement was to host a nuclear power plant – not to consent to violation of environmental and human health laws and regulation), and further that this decision is thereby fixed immutably and forever, binding future generations, to be inherited by their heirs and assigns forever, like some radiological Mark of Cain.
This is not supportable. If the unwisdom of prior generations must override any democratic will expressed by a present generation, then we should be in a situation where we have a House of Lords and not a Senate, a King and not a President. That is not the situation, obviously, because that entire logic is contrary to not only the American historical experience, but even to attempts to ameliorate and improve social and economic conditions more generally.
XIV. Conclusion
The Department was correct in its July 24th tentative determination. Holtec’s proposed discharge is illegal in a number of ways, being contrary to precedent extending back to Magna Carta, and contrary as well to statutes, regulations, and contractual agreements alike. It stands contrary to a vast corpus of historical precedent and tradition which it is the Department’s sacred duty to guard and continue, including the stewardship of public lands and waters under New England’s Commons Tradition. Strong scientific and economic evidence argues against Holtec’s permit modification, and the company’s proposed actions possess no democratic legitimacy. Considerations of environmental justice, including the numerous environmental justice populations in the Towns surrounding and nearby Cape Cod Bay, also argue against the granting of Holtec’s application to modify its permit. The arguments relied upon by Holtec and its supporters are erroneous, and fundamentally are incapable of rebutting the factual record laid out above. From an early date, the life of the law has recognized that common rights and liberties supersede any particular private interest with respect to the sea and to navigable waters more generally. Following Hale, the sea is in the Commonwealth of Massachusetts and the United States for the nation, and the public common of piscary is held by the people of Massachusetts and the United States, and it is indefeasible.
For all of the foregoing reasons, MassDEP must deny Holtec’s application to modify its permit.
Holtec Decommissioning International, LLC, APPLICATION FOR MODIFICATION TO NPDES PERMIT NO. MA0003557, https://www.mass.gov/doc/holtec-wm07-application-for-a-swd-permit-modification/download, Section D, Description of Proposed Modification.
Ibid., Section E – Regulation of Spent Fuel Pool.
Ibid., Section F - Effluent Limit Guidelines.
See correspondence between Holtec and the EPA:
a) Holtec Information Sheet, Jan. 27, 2022:
b) EPA Reply to Holtec, Feb. 17, 2022.
Letter from EPA to Holtec Decommissioning International, February 17, 2022.
c) Holtec reply to EPA, May 24, 2022.
Letter from Holtec Decommissioning International to EPA, May 24, 2022.
d) EPA to Holtec, June 17, 2022.
Letter from EPA to Holtec Decommissioning International, June 17, 2022.
e) EPA Enforcement Warning Letter to Holtec, Dec. 5, 2022.
Letter from EPA to Holtec Decommissioning International, December 5, 2022.
f) Holtec response to EPA Enforcement Warning Letter, Dec. 19, 2022.
Letter from Holtec Decommissioning International to EPA, December 19, 2022;
g). Holtec Permit Modification Application, March 31, 2023.
The Code of Justinian, Book II (I)(1), https://thelatinlibrary.com/law/institutes.html
The 1215 Magna Carta: Clause 33', The Magna Carta Project, trans. H. Summerson et al. [http://magnacartaresearch.org/read/magna_carta_1215/Clause_33 accessed 07 July 2023].
Nicholas Vincent, “The Clauses of Magna Carta,” March 13th, 2015; https://www.bl.uk/magna-carta/articles/the-clauses-of-magna-carta
https://statutes.org.uk/site/the-statutes/thirteenth-century/1297-25-edward-1-c-1-confirmation-of-the-charters/;
See also Confirmation by Kings and Parliament - Magna Carta: Muse and Mentor | Exhibitions - Library of Congress (loc.gov).
Lord Chief Justice of the King’s Bench Matthew Hale, De Jure Maris, cap. 3, 8-9; Francis Hargrave, editor, A Collection of Tracts Relative to thje Law of England from Manuscripts, Vol. I, 1786. (Abingdon, England: Professional Books, Ltd.), 19. Hale refers here to the 1225 Magna Carta, in which Cap. 23, rather than Cap. 33 as in the 1215 Magna Carta, relates to public waters.
Lord Hale, De Jure Maris, Pars Prima, Cap. IV.
Indeed, Holtec’s arguments – such as they are – in favor of their application are essentially aristocratic ones — that they, rather than what Herman Melville called “the kingly commoners” — possess a propriety over the entirety of the sea, contrary to Magna Carta and descending precedents.
Justice Best, in Blundell v. Catterall, 5 B. Al. 268, quoted by Justice Doe, Concord Co. v. Robertson, 66 N.H., 11 (N.H. 1889).
Martin v. Waddell, 41 U.S. 367-68 (1842).
Martin v. Waddell, 41 U.S. 368 (1842).
Martin v. Waddell, 41 U.S. 368 (1842).
Martin v. Waddell, 41 U.S. 412-413 (1842).
Shively v. Bowlby, 152 U.S. 11 (1894).
Boston Waterfront Development Corp. v. Commonwealth, 393 NE 2d 356 (1979), 632.
Alfred, Lord Tennyson, sings a paean that can be applied to all common law jurisdictions:
“You ask me, why, tho' ill at ease,
Within this region I subsist,
Whose spirits falter in the mist,
And languish for the purple seas.
It is the land that freemen till,
That sober-suited Freedom chose,
The land, where girt with friends or foes
A man may speak the thing he will;
A land of settled government,
A land of just and old renown,
Where Freedom slowly broadens down
From precedent to precedent….”
https://www.poetryfoundation.org/poems/45393/you-ask-me-why-tho-ill-at-ease
Concord Co. v. Robertson, 66 N.H. 1, 4 (N.H. 1889), 4.
Concord Manufacturing Co. v. Robinson, 5.
The Right to Privacy — Louis D. Brandeis School of Law Library (louisville.edu)
Concord Co. v. Robertson, 66 N.H. 1, 4 (N.H. 1889), 24.
Concord Co. v. Robertson, 25-26.
Constitution of Massachusetts, Article XCVII. https://malegislature.gov/Laws/Constitution.
Constitution of Massachusetts, Note. https://malegislature.gov/Laws/Constitution.
David Pulsifer, Editor. Records of the Colony of New Plymouth in New England, Printed by Order of the Legislature of the Commonwealth of Massachusetts. Laws 1623-1682. (Boston, William White, Publisher to the Commonwealth, 1861), 5.
The Massachusetts Body of Liberties, Article 16. https://history.hanover.edu/texts/masslib.html
The Charter of Massachusetts Bay — 1691. https://avalon.law.yale.edu/17th_century/mass07.asp.
Ibid.
William T. Davis, Records of the Town of Plymouth (Plymouth: Avery & Doten, 1889), Vol. I, 131-32.
William T. Davis, Records of the Town of Plymouth (Plymouth: Avery & Doten, 1889), Vol. II, 257.
George Etheridge, copyist. Copy of the Old Records of the Town of Duxbury, From 1642 to 1770, Made in the Year 1892. (Plymouth, Mass.: Avery and Doten, Book and Job Printers, 1893), 183-4.
Evelyn Strawn, “Herring return to Plymouth,” The Old Colony Memorial, April 16, 2022. https://www.wickedlocal.com/story/old-colony-memorial/2022/04/16/herring-return-plymouth/7270198001/
Wareham Town Meeting, March 20, 1775, in Wareham Town Book. The only extant copy of the great majority of the town records, made by hand around the turn of the 20th century from the disintegrating originals, is located at the Wareham Free Library, 59 Marion Road, Wareham MA 02571.
Wareham Town Meeting, July 26th, 1813, adjourned to August 3rd, when the members of the committee concerning shellfish were chosen.
The Massachusetts Body of Liberties, Article 16. https://history.hanover.edu/texts/masslib.html
“An Act to Prevent the Destruction of the Fish Called Alewives,” (1735); https://archives.lib.state.ma.us/handle/2452/117878.
1836 Chap. 0056 An Act To Regulate The Alewive Fishery In The Town Of Wellfleet, Sec. 1. https://archives.lib.state.ma.us/bitstream/handle/2452/106983/1836acts0056.pdf?sequence=4&isAllowed=y
Ibid., Sec. 3.
1933 Chap. 0118. An Act Prohibiting The Taking Of Certain Herring Or Alewives From The Waters Of Plymouth Harbor, Kingston Bay, Duxbury Bay And Certain Waters Of Plymouth Bay. https://archives.lib.state.ma.us/bitstream/handle/2452/63064/1933acts0118.pdf?sequence=3&isAllowed=y
My thinking here follows Robert McCullough, The Landscape of Community: A History of Communal Forests in New England (Hanover, NH: University Press of New England, 1995).
Concord Co. v. Robertson, 66 N.H. 1, 4 (N.H. 1889). For an examination of New England Common Law, see Lincoln Smith, “The Great Pond Ordinance - Collectivism in Northern New England,” 30 B.U. L. Rev. 178 (1950).
Pew Research Center 2014 Religious Landscape Survey (RLS-II)
Topline, June 4-September 30, 2014, N=35,071. https://assets.pewresearch.org/wp-content/uploads/sites/12/2016/02/topline-RLS-environment-regs-by-state-NUM-CHECKED-2-18-16.pdf
The argument that nuclear energy is somehow carbon neutral and even a force for climate justice recalls lines from Act I, Scene 3, of William Shakespeare’s Othello: “twas strange, 'twas passing strange,/ 'Twas pitiful, 'twas wondrous pitiful.”
This viewpoint neglects to factor into the equation the fact that the mining and processing of uranium are carbon-intensive activities. As Ann Wills, of London, United Kingdom, wrote in a letter published in New Scientist, on September 27, 2017, “Eric Kvaalen points out that nuclear energy production isn't green because no way has been found to deal with the problem of nuclear waste (Letters, 2 September). Nuclear power is being “sold” to the public by saying it doesn't emit carbon dioxide. Though nuclear reactors emit little CO2 at the point of generation, they are just a small part of the nuclear fuel cycle.
Uranium mining, milling the ore, converting it to uranium hexafluoride, enriching that and fabricating fuel rods all emit large amounts of CO2. Much energy is also used in the treatment, conditioning, transport and disposal of nuclear products.
Jan Willem Storm van Leeuwen and Philip Smith found that nuclear generation produces a third as much CO2 per unit of electricity generated as conventional, mid sized, gas-fired electricity generation – and more if lower-grade ores have to be mined. Decommissioning old radioactive nuclear power stations also consumes energy.”
https://www.newscientist.com/letter/mg23531450-700-7-generating-nuclear-power-also-emits-carbon/
Moreover, while advocates of a putatively “green” nuclear energy frequently point to industrialized countries like France and its reliance on nuclear energy as its primary source of power. What they do not mention is that in order to obtain the requisite uranium for its nuclear energy production, France has relied on an extension of its old colonial empire in West Africa, known to observers as Francafrique, an informal system of neocolonial economic and military control, to provide uranium for its nuclear industry. The Coup in Niger in the summer of 2023 has taken place in a place where France is deeply concerned to control supplies of uranium: https://www.theguardian.com/commentisfree/2023/aug/05/niger-crisis-france-empire-africa-coup-colony
I would posit that neocolonial mining operations across the Sahel are not the shining example of social justice that some of our interlocutors appear to believe them to be.
This is to say nothing of the environmental consequences of radioactive waste produced by the mining of uranium – which surely should enter the calculus of any voices which profess concern for climate justice. Interestingly, as we shall note below in the section discussing Massachusetts Environmental Justice populations, those voices which argue, tendentiously, for Holtec’s discharge on the grounds of a blanched and attenuated vision of environmental justice, somehow never seem to take the view that principles of environmental justice apply not just in distant locales, but in their own and neighboring Towns, as well. Principles of environmental justice apply universally – to environmental justice populations in Plymouth and Barnstable Counties, Massachusetts, as well as to populations in counties where licensed radioactive waste facilities are located.
Yet, tendentious arguers for pro-nuclear industry policies on spurious grounds of environmental justice rarely seek to apply these principles locally – only in far away places, and only in far away places where uranium is not mined (for some reason, these locales, too, are granted an exception). Query why that is.
Indeed, the notion that the nuclear industry is a force for environmental justice is frankly either jejunely naive, highly partial, materially interested, or some combination of the three.
The proper answer of the Commonwealth to the climate crisis must be a continuation of our commons tradition, both de jure and de facto. That emphatically does not include allowing private corporation’s to treat public waters as the dumping ground for industrial waste. Prudential considerations and the experience of nuclear accidents in the United States, USSR, and Japan militate against accepting any form of energy with such a grievously dangerous tail-end risk.
Settlement Agreement III (10) (l), https://www.nrc.gov/docs/ML2109/ML21096A083.pdf, 14.
Settlement Agreement III (16), https://www.nrc.gov/docs/ML2109/ML21096A083.pdf, 17-18.
Settlement Agreement VI (48), https://www.nrc.gov/docs/ML2109/ML21096A083.pdf, 29.
Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 US 225 (1983).
English v. General Electric Co., 496 U.S. 85 (1990).
M.G.L. c.132A Sec. 13(b).
M.G.L. 132A § 14.
M.G.L. 132A § 15(4).
M.G.L. 132A § 18.
Holtec application, https://www.mass.gov/doc/holtec-wm07-application-for-a-swd-permit-modification/download, Section G.
Ibid.
301 CMR 27.02.
M.G.L. c.131A Sec. 2.
Ibid.
M.G.L. c.131A Sec. 1.
321 CMR 10.02
M.G.L. c.131A Sec. 1.
Ibid.
Ibid.
321 CMR 10.01(02).
321 CMR 10.90.
50 CFR § 17.11. https://www.law.cornell.edu/cfr/text/50/17.11.
See https://www.fisheries.noaa.gov/species/humpback-whale#overview
Natural Heritage and Endangered Species Program, Mass. Division of Fisheries & Wildlife, “The North Atlantic Right Whale, Eubalaena glacialis,” https://www.mass.gov/doc/north-atlantic-right-whale/download, 1.
Ibid, 2.
Emma Bowman, “Up to 70 North Atlantic right whales were spotted in Cape Cod Bay,” NPR, April 2, 2023, https://www.npr.org/2023/04/02/1167631441/north-atlantic-right-whale-cape-cod-tangled.
NOAA Fisheries, North Atlantic Right Whale (Eubalaena glacialis)
Source Document for the Critical Habitat Designation: A review of information pertaining to the definition of “critical habitat”, December 2015.https://media.fisheries.noaa.gov/dam-migration/16narwchbiologicalsourcedocument122115-508.pdf, 13.
Ibid., 73.
See, for example, Mary Whitfill, “Lobster closure extended; Massachusetts fishermen prepare for shortened season,” The Patriot Ledger, May 3, 2022.
Shannon Lawson, “They take up every parking space’: Whale watchers have been flocking to this spot in Plymouth; Humpbacks have been putting on a show off Manomet Point. But officials and business owners are asking people to be respectful of the area,” The Boston Globe, July 22, 2022. https://www.bostonglobe.com/2022/07/22/metro/they-take-up-every-parking-space-whale-watchers-have-been-flocking-this-spot-plymouth/
NHESP Fact Sheet, Humpback Whale, Megaptera novaeangliae, https://www.mass.gov/doc/humpback-whale/download, 1.
NHESP Fact Sheet, Piping Plover, Charadrius melodus.
https://www.mass.gov/files/documents/2016/08/rp/charadrius-melodus.pdf, 1.
Ibid., 2.
https://www.mass.gov/doc/piping-plover-habitat-conservation-plan/download; on Ellisville Harbor ACEC, see https://www.mass.gov/info-details/ellisville-harbor-acec.
https://www.mass.gov/doc/piping-plover-habitat-conservation-plan/download; on Wellfleet Harbor ACEC, see https://www.mass.gov/info-details/wellfleet-harbor-acec.
https://www.mass.gov/doc/piping-plover-habitat-conservation-plan/download; on Sandy Neck Barrier Beach System ACEC, see https://www.mass.gov/info-details/sandy-neck-barrier-beach-system-acec.
See, e.g., Matthew Nadler, “Beachside Back and Forth,” The Duxbury Clipper, August 16, 2023. https://www.duxburyclipper.com/articles/beachside-back-and-forth/.
NHESP Fact Sheet, “Roseate Tern Sterna dougallii,” https://www.mass.gov/files/documents/2016/08/wh/roseate-tern.pdf, 1.
Ibid., 1.
Babbitt, Secretary of Interior, et al. v. Sweet Home Chapter of Communities For a Great Oregon et al. 515 U.S. 687 (1995), 697-698.
M.G.L. c.21E Sec. 2.
Ibid.
Ibid.
M.G.L. c. 21E Sec. 4.
M.G.L. c. 21E Sec. 6.
M.G.L. c.270 Sec. 16.
314 CMR 4.04(3)(b)(1).
314 CMR 4.05(a)(1).
National Academies of Sciences, Engineering, and Medicine. 2006. Health Risks from Exposure to Low Levels of Ionizing Radiation: BEIR VII Phase 2. Washington, DC: The National Academies Press. https://doi.org/10.17226/11340, 313.
Clapp, R W, & Cobb, S. Leukemia and other health outcomes in the vicinity of the Pilgrim Nuclear Power Station, Plymouth, MA. United States. Archives of Environmental Health. Delivered at a conference held in Upton, NY, Sept. 13-15, 1989.
Irina Rypina, et al.Spreading pathways of Pilgrim Nuclear Power Station wastewater in and around Cape Cod Bay: Estimates from ocean drifter observations. Journal of Environmental Radioactivity 255 (2022) 10703, 1. https://www.sciencedirect.com/journal/journal-of-environmental-radioactivity/vol/255/suppl/C
Rypina et al., 6.
Rypina et al., Figure 3, p. 6.
https://www.mass.gov/news/monitoring-and-understanding-low-dissolved-oxygen-in-cape-cod-bay.
Kathryn Ford and Jillian Carr, for Mass. Division of Marine Fisheries, Eelgrass loss over time in Duxbury, Kingston, and Plymouth Bays, Massachusetts Final Report, May 9th, 201,
https://www.mass.gov/files/2017-08/2015%20DuxburyKingstonPlymouth%20Eelgrass.pdf, 30.
Ibid., 30-31.
Map found in Ford and Carr, 16.
Long, M.H., Mora, J.W. Deoxygenation, Acidification and Warming in Waquoit Bay, USA, and a Shift to Pelagic Dominance. Estuaries and Coasts (2023). https://doi.org/10.1007/s12237-022-01166-7.
Mari Yamiguchi, The Associated Press, “China bans seafood from Japan after Fukushima nuclear plant begins releasing wastewater,” The Los Angeles Times, August 24, 2023; https://www.latimes.com/world-nation/story/2023-08-24/china-bans-japan-seafood-fukushima-nuclear-plant-wastewater.
Leslie-Ann McGee et al., Cape Cod Blue Economy Project A Call to Action, https://www.bluecapecod.org/wp-content/uploads/2019/07/Cape-Cod-Blue-Economy-Project-Implementation-Plan-012219.pdf, 11.
https://www.bls.gov/data/inflation_calculator.htm.
Mary and James Lampert to MassDEP, DESIGNATE CAPE COD BAY, AND ASSOCIATED EMBAYMENTS, ORWS AND REQUIRE TIER 2 ½ REVIEW - RATIONALE, May 31, 2023.
David Borges et al. for the Public Policy Center at UMass Dartmouth, Navigating the Global Economy: A Comprehensive Analysis of the Massachusetts Maritime Economy, 2017, https://www.mass.gov/files/documents/2018/01/24/Maritime_Economy.pdf, 23.
Cape Cod Commission, “Help! Wanted Cape Cod’s Seasonal Workforce, Oct. 2000. https://archives.lib.state.ma.us/bitstream/handle/2452/202400/ocn182755979.pdf?sequence=1&isAllowed=y.
https://www.nps.gov/caco/learn/news/cape-cod-national-seashore-among-top-20-national-park-areas-for-visitation-in-2021.htm
Mary and James Lampert to MassDEP, May 31, 2023, 7.
Christine Silva to NDCAP, July 25, 2022, quoted in Lampert and Lampert to MassDEP, 8-9.
https://www.mass.gov/info-details/environmental-justice-populations-in-massachusetts.
https://www.mass.gov/info-details/environmental-justice-populations-in-massachusetts#interactive-maps-about-environmental-justice-populations-
Magna Carta, Clause 47, via the British Library: https://www.bl.uk/magna-carta/articles/magna-carta-english-translation, taking as its source G.R.C. Davis, Magna Carta (London: British Museum, 1963), pp. 23–33.
The Charter of the Forests made actual, with respect to the commons of the realm, what Magna Carta had guaranteed more broadly. It was the fulfillment of the promises contained in Magna Carta.
A look at some of the specific measures of the Charter of the Forests is illuminating.
Chapter I of the Charter of the Forests relates to the disafforestation mentioned in Magna Carta:
“We will, that all Forests, which King Henry our Grandfather afforested, shall be view'd by good and lawfull men; and if he hath afforested any other Wood, more than his own Demesne, by which the Owner of the Wood hath dammage, it shall be forthwith disafforested; and if he hath afforested his own Wood, then it shall remain Forest: saving the Common of Herbage, and of other things in the same Forest, to them who before were accustomed to have the same.” (UMich Version 1680)
Chapter XVII contains a critically significant passage: “These liberties concerning the forests we have granted to everybody, saving to archbishops, bishops, abbots, priors, earls, barons, knights, and other persons, ecclesiastical and secular, Templars and Hospitallers, the liberties and free customs, in forests and outside, in warrens [a type of hunting ground - Ed.] and other things, which they had previously,” it states.
Note that the Charter does not trample on the legitimate rights of private property – indeed, certain liberties are preserved to their existing owners.
“All these aforesaid customs and liberties which we have granted to be observed in our kingdom as far as it pertains to us towards our men, all of our kingdom, clerks as well as laymen, shall observe as far as it pertains to them towards their men.”
In a medieval age, marked by a vast distinction between clergy and laity, the fact that these laws apply to “all of our kingdom, clerks as well as laymen,” was of great import, and real significance (the struggle between Church Law and the law of the civil state and authorities was a lengthy one in European history).
The language of the Charter of the Forests thus not only preserves a commons tradition, it does so in a fashion that encompassed the entirety of the English kingdom.
See McCullough, Landscapes of Community, 166, for the prominent role of state foresters in New England communal forestry.
See, e.g., Master Plan, Cape Cod National Seashore (1974), http://npshistory.com/publications/caco/mp-1974.pdf.
Via MassMapper, https://maps.massgis.digital.mass.gov/MassMapper/MassMapper.html.
301 CMR 27.02.
https://www.eia.gov/nuclear/state/archive/2010/massachusetts/.