Reexamining the Massachusetts Nondelegation Doctrine: Is the Areas of Critical Environmental Concern Program an Unconstitutional Delegation of Legislative Authority?

Abstract

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