Article 97 of the Amendments to the Massachusetts Constitution, establishes the public’s right to a clean environment and protects public lands designated for conservation, natural resources, or recreational purposes. Currently the Mass Office of Energy and Environmental Affairs is reviewing regulations for "standardizing the process for altering the use of Article 97 lands." Horseneck Beach Reserve is an Article 97 property.

 The proposed Article 97 regulations appear tailor made to enable the State to rapidly advance siting and construction of "green" energy infrastructure. These proposed regulations fit hand-in-glove with the recently passed 2024 Climate Bill, which fast tracks the permitting and development of industrial wind, solar and battery storage, and expropriates the authority of municipalities in zoning and siting these facilities.

Straight out of the gate is the proposal that any "subsurface" easement will be deemed a non-fee simple interest, affecting zero acres—therefore not requiring any replacement land, if the surface is tidied up within 24 months of the initial impact. The “zero acres” clause for subsurface easements (e.g., cabling) is a novel regulatory construct, absent from prior policy. The idea that what is done beneath the ground has no effect on a natural area as long as no one can see it is absurd. 

The State proposes that to "mitigate" the impact of an Article 97 Action, the replacement land shall be in a comparable location to the effected property and of equal or greater "natural resource value," or of equal or greater acreage, or of equal or greater monetary value as the original property. There is no such thing as "replacement land" when a beach or natural area with invaluable coastal ecology, public access, and cultural significance such as Horseneck is severed by extra-high voltage cabling. But then no replacement land is required for a subsurface easement. 

 The State proposes that the monetary value of the Article 97 Interest and the replacement land shall be the fair market value or "value in use," whichever is greater. A monetary payout is peanuts to offshore wind companies or to any big developer—especially with "green siting" already given the green light here in Massachusetts.

Throughout the proposed regulations it is stated that the Energy and Environmental Affairs Secretary "reserves sole discretion to make all manner of judgements about valuing, waivers, and actions." The Secretary's sole discretion is most frequently based on whether "the proposed Article 97 Action serves a significant public interest" or is determined "to provide greater public benefit" than an Article 97 property does in and of itself. Centralizing power in one official—especially one appointed by a governor prioritizing climate goals—raises legitimate risks of bias, particularly if “public benefit” is interpreted to favor renewables over preservation. At no point in the proposed regulations is the option of denying energy infrastructure on Article 97 lands mentioned.

 Constance Gee

Westport