SJC ponders environmental justice, East Boston substation

A PROPOSED ELECTRICITY substation in East Boston has become a test case for how much energy infrastructure an environmental justice community should be forced to accept.

The Eagle Hill community in East Boston certainly meets the definition of an environmental justice community. Its median household income is 44 percent of the state’s median, 43 percent of the households lack English language proficiency, and minorities comprise 74 percent of the population. The neighborhood also has less open space and fewer trees than the rest of Boston.

The neighborhood is also burdened environmentally by the harbor tunnel that comes up above ground in East Boston, noise and air pollution from Logan International Airport, traffic congestion, jet fuel tanks, and piles of road salt and sand along Chelsea Creek.

Citing a 2021 law, which for the first time defined environmental justice populations in state statute and required regulators and state agencies to take into account environmental burden when making decisions, the Conservation Law Foundation and the neighborhood group Greenroots filed suit, challenging a decision by the Energy Facilities Siting Board granting a series of permits that had been stymied at the local level.

At a hearing on the case Monday before the Supreme Judicial Court, the justices asked tough questions of both sides, but the prevailing sentiment was that a community’s environmental burden doesn’t necessarily trump the community’s need for energy. The case comes at a time when the Healey administration is trying to bolster the power of the Energy Facilities Siting Board to more swiftly make decisions on energy infrastructure projects.

The East Boston substation has been on the drawing boards for years. The Energy Facilities Siting Board initially approved it in 2017. In 2021, the board approved a request to reposition it slightly, a decision that was affirmed the following year by the Supreme Judicial Court. The latest case arose from the board’s decision to step in and approve local and state permits needed to move forward with construction.

Justice Scott Kafker wanted to know why the issue was back before the court. “A lot of this seems to be rehash,” he said, referring to the 2022 decision.

Phelps Turner, an attorney with the Conservation Law Foundation, said the Energy Facilities Siting Board failed to heed the environmental justice and environmental burden provisions contained in the 2021 law. He said the board devoted only one sentence in its decision to the environmental burden East Boston is facing.

Kafker wasn’t having it. “It’s not one sentence on burdens,” he said. “It’s painfully detailed.”

Justice Gabrielle Wolohojian went to the heart of the matter, suggesting the law’s mandate to consider the environmental burden on environmental justice communities is not absolute.

“It’s a mandate to consider,” she said. “It’s not a mandate that overrides all other considerations.”

Adam Ramos, an attorney representing the attorney general’s office, said the Energy Facilities Siting Board had to take the energy needs of the community into account in making its decision.

Justice Dalila Wendlandt wasn’t convinced. “It does seem to me that East Boston, at least at a superficial level, bears a disproportionate share of the cost and environmental burdens of energy,” she said. “I’m wondering how this decision, which I understand is just about getting the certificates in place, isn’t more of what your opposing counsel said — business as usual. How is siting this substation in East Boston that already bears a disproportionate share of these burdens consistent with equal justice mandates of the new law?”

Ramos noted East Boston is the only section of Boston without an electricity substation. He said the siting board considered all the benefits and burdens of a substation and concluded the benefits outweighed the burdens.

“It’s across the street from a playground, right?” Wendlandt asked.

Ramos acknowledged that was the case, but said the siting board takes very seriously the environmental burden of a community.

She asked whether a community’s existing environmental burden was considered in the siting board’s decision to approve the substation.

“It definitely weighs into the calculation,” Ramos said.

Wendlandt asked where, specifically, in the decision that existing burden is referenced. Kafker jumped in to say it’s the trigger point for much of the analysis.

“You wouldn’t do the environmental analysis if this was Wellesley,” he said. “You do it because it’s East Boston.”