May 11, 1983 Number 12

May 11, 1983 Number 12. Paul Levy, Chairman Department of Public Utilities 1210 Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mr. Levy: Your predecessor requested my opinion on several questions relating to recent efforts by some Massachusetts municipalities to restrict the use of herbicides on utility company rights of way in their communities through regulations promul- gated by municipal boards of health or similar local agencies. The first question posed by your predecessor is whether such local regulations are preempted by the Massachusetts Pesticide Control Act, G.L. c. 132B. In the event that such local herbicide control regulations are not preempted by the provisions of G.L. c. 132B, your predecessor asked whether G.L. c. 166, § 27, gives the Department of Pub- lic Utilities (DPU) authority to approve or disapprove local regulations that re- strict the use of herbicides along the rights of way of utility companies and, if so, whether such local regulations may be enforced by municipalities prior to being reviewed and approved by the DPU. Finally, if the DPU has authority under G.L. c. 166, § 27, to review and approve or disapprove such local regulations govern- ing the use of herbicides, your predecessor asked for guidance concerning the interplay between the DPU, the Pesticide Board and the Department of Enviromen- tal Quality Engineering regarding each agency's authority to regulate the use of herbicides by utilities along their rights of way. For the reasons set forth in the balance of this opinion, I must respectfully decline to answer the first and last questions. My response to the second and third questions General Laws chapter 23. section 3, provides in perlinenl part: The commissioner shall be the executive and administrative head of the department. Except as otherwise provided. he shall have charge of the administration and enforcement of all laws and mav assign the officers and employees of the department to the several divisions thereof ^ General Laws chapter 23. section 4. provides in pertinent part: The commissioner may employ, for periods not exceeding ninety days, such experts as may be nccessarv to assist the department In the performance of any duty imposed upon It by law .... 118 P.D. 12 is that the DPU has no authority under G.L. c. 166, § 27, to approve or disapprove local board of health regulations affecting utility company rights of way and that such regulations may therefore be enforced by municipalities without DPU approval. I must decline to answer the first question — whether local regulations restrict- ing the use of herbicides on utility company rights of way are preempted by the Massachusetts Pesticide Control Act — for several reasons. First, under the standards set forth by the Supreme Judicial Court, the question of whether local regulations are preempted by state law' involves a determination of whether the regulations in question actually conflict with state law or, rather, are consistent with, although possibly more stringent than, state law. See, e.g. Lovequist v. Con- servation Commission ofDennis, 379 Mass. 7, 15 (1979); Beard v. Salisbury 378 Mass. 435, 440 (1979); fi/oomv. Worcester, 363 Mass. 136, 155-156 (1973).'Such a determination must be made on a case-by-case basis depending on the particular subject matter, scope, and effect of the regulation in question. Since the regula- tions promulgated by various cities and towns may differ in those respects, I am unable to render a general pronouncement on the issue of preemption. A second reason why I must decline to answer the first question is that it relates more to the authority of municipal officials than to your own official duties. The Attorney General is authorized by G.L. c. 12, § 3, to render opinions to state offi- cials only on "matters relating to their official duties. ' ' It would therefore be beyond the scope of my authority to issue an opinion on this issue. Third, it is my understanding that the issues raised by the first question are cur- rently the subject of litigation in the state courts. In such circumstances, the Attor- ney General traditionally declines to issue opinions but rather defers to judicial resolution of such matters. The second question raised by your predecessor is whether G.L. c. 166, § 27,- gives the DPU authority to approve or disapprove regulations prohibiting or re- stricting herbicide use along utility company rights of way. For the following rea- sons, I conclude that G.L. c. 166, § 27, empowers the DPU to review only regulations adopted by local authorities pursuant to G.L. c. 166, § 25.^ The outer limits of the DPU's authority to review local regulations affecting the "erection, maintenance or operation of a line for the transmission of electricity" were demarcated by the Supreme Judicial Court in Boston Edision Co. v. Sud- bury, 356 Mass. 406, 418-20 (1969). In that case, the court was asked to deter- mine whether certain local building code by-laws applied to the construction of Yi)ur predecessor did nol ask and I express no opinion as to whether such regulalions arc preenipled by federal law. in parlicular Ihe Federal Insecticide. Fungicide, and Rodenlicide Act (FIFRA). 7U.S-C, «)!) 1 .16 </ .i<(/. The Attorney General traditionally declines to render opinions on the issue of federal preemption ot stale or local law but rather advises state officials of their duly to enforce and comply with slate statutes until such lime as such statutes are held to be preempted by a court of competent lurisdiction. Sec 1979- 1980 Op. Ally. Gen. No. 10. Rep AG,. Pub. Doc, No, 12 at 119 n 6(19X0). 197K 1979 0p Ally Gen, No 6. Rep A.G . Pub, Doc, No, 12 at 109. II 1 (1979) General Laws chapter 166. section 27. provides; No ordinance or regulation of a city of town, or regulation or reslnclion imposed m a grant of location, affecting the erection, maintenance or operation of a line for the transmission of electricity lor light, heal or power extending or intended to extend from some point in one city or lown through or to some point in another city or town, shall lake effect until approsed h\ the department ol public utilities. The selectmen may, within their towns, permit telegraph, telephone or television lines to be laid under any public way or place and may establish reasonable regulalions for Ihe erection and maintenance of all lines for Ihe transmission of inlelligenee by telegraph, telephone or television, or for Ihe transmission of elcelricily for light, or for heal or power except for the use of street railway companies, by every person having authority to place such structures in or under public ways or places, including all lines owned or used by said towns Regulations established by a city hereunder shall be made by ordinance. P.D. 12 119 a proposed electrical transmission line through Sudbury and several neighboring communities. Before reaching its conclusion that the local building code by-laws at issue did not apply to the proposed construction of an electrical transmission line, the court made a preliminary determination that the DPU lacked authority under G.L. c. 166, § 27, to review and approve or disapprove a building code by-law even if such by-law could have some application to the erection or main- tenance of electrical transmission lines. The court observed that G.L. c. 166, § 25, empowers town selectmen to establish "reasonable regulations for the erec- tion and maintenance of all lines ... for the transmission of electricity." Boston Edison Co. v. Sudbury, 356 Mass at 419. The statute also directs that similar regu- lations may be established by cities as ordinances. The court then noted that sec- tions 25 and 27 had "originally appeared in one section as St. 1914, c. 742, § 132. The sections, without explanation, were separated in the 1921 recodification of the General Laws." Boston Edison Co. v. Sudbury, 356 Mass. at 419. This inti- mate alignment of sections 25 and 27 led the court to conclude that: the word "ordinance" in the first line of § 27, in the light of the lan- guage of § 25 (originally the first sentence of the 1914 statute, § 132), can refer only to action by a city under § 25, that ' 'regulation ' ' in that line refers only to regulations ofselectmen made under § 25, and that the word "regulation" and the word "ordinance" in § 27 are not broad enough to include a town building by-law which must be adopted by the town in meeting and not merely by the selectmen. Boston Edison Co. v. Sudbury, 356 Mass. at 419 (emphasis added). The Supreme Judicial Court's decision in the Sudbury case delimits the DPU's authority under section 27. When a city or town acts under section 25 to regulate "the erection and maintenance of all lines for the transmission . . . of electricity," it must obtain approval from the DPU in accordance with section 27 before the regulation may become effective. If, however, the city or town issues ordinances or regulations under authority granted to it by the Legislature in provisions other than section 25, such ordinances or regulations become effective without the prior approval of the DPU even if the local measures may have some indirect applica- tion to the property or rights of way of utility companies located in the commu- nity. Therefore, only when municipal officials adopt regulations pursuant to their authority under section 25 is the DPU empowered by section 27 to review and approve or disapprove local regulations. Applying these principles to the particular regulations that have been adopted by the boards of health of the towns of Brewster, Wellfleet, and Barnstable (copies of which were attached to your predecessor's request), I conclude that since those regulations were established by boards of health rather than by the town select- men, they do not fall within the scope of G.L. c. 166, § 25, and therefore not sub- ject to review and approval or disapproval by the DPU pursuant to G.L. c. 166, §27. The answer to your predecessor's third question — whether local regulations governing the use of herbicides on utility company rights of way may be enforced prior to DPU approval — also follows directly from the language of G.L. c. 166, § 27, as construed by the Supreme Judicial Court in the Sudbury case. Section 27 expressly provides that "tn]o ordinance or regulation of a city or town . . . affecting 120 P.D. 12 the erection, maintenance or operation of [an electrical transmission] line . . . shall take effect until approved by the department of public utilities." Since the words "ordinance" and "regulation" have been construed to apply only to ordinances or regulations established pursuant to section 25, Boston Edison Co. v. Sudbury, 356 Mass. at 419, it follows that local regulations enacted pursuant to section 25 may not be enforced prior to DPU approval. If, however, local regulations or ordinances are not adopted under the authority granted to local governments by section 25, such regulations may become effective without the prior approval of the DPU despite any indirect effect the regulations may have on utility company property or rights of way.'* I must decline to provide the guidance requested in the fourth question, con- cerning the interplay among the DPU, the State Pesticide Board, and the Depart- ment of Enviromental Quality Engineering with respect to herbicide regulation, for several reasons. First, your predecessor has not alluded to any actual conflict among these agencies with respect to herbicide regulation; and, moreover, although municipalities may be subject to regulation by all three agencies, it does not neces- sarily follow that a conflict would arise. Therefore, this question is too specula- tive to form the basis for an opinion at this time. Second, if such an administrative dispute among state agencies should arise, it would be more appropriately resolved by the Governor, pursuant to G.L. c. 30, § 5, than by an opinion of the Attorney General. Very truly yours, FRANCIS X. BELLOTTI Attorney General