Whether the Town of Boxford may sue to enjoin the Mass. Department of Transportation from operating a road salt storage facility.

The Mass. Department of Transportation (“DOT”) maintains a road salt storage facility in the Town of Boxford, which it uses to de-ice major highways. Salt has contaminated the groundwater near the facility, affecting at least thirty local residents. DOT rejected Boxford’s own attempts to regulate the facility or cleanup efforts, and the Department of Environmental Protection (“DEP”) rejected Boxford’s requests that DEP regulate the facility.

Boxford filed claims for violation of its own public health regulations issued under G.L. c. 111, § 33 and 122; for public nuisance; and for mandamus against DEP, to compel it to regulate. The trial judge granted a preliminary injunction against operation of the facility, and DOT and DEP appealed from denial of a motion to dismiss. The SJC transferred the case sua sponte from the Appeals Court.

1. Sovereign immunity. DOT argues that sovereign immunity bars any action against the Commonwealth, absent explicit waiver by statute. Boxford responds, as the judge found, that municipalities may regulate state-created entities “where that regulation serves an important purpose and either would have no effect at all or a merely negligible effect on the entity’s ability to fulfil[l] its essential government function,” Mass. Bay Trans. Auth. v. Somerville, 451 Mass. 80, 85-86 (2008).
2. Interference with essential government functions. DOT argues that, even if the MBTA case applied, it is clear from the face of the complaint that closing its salt facility interferes with its essential government function to maintain the roads. The trial judge found that such a question was inappropriate for a motion to dismiss, depending on factual questions such as whether another facility might serve equally well.
3. Public nuisance. The judge read Hull v. Mass. Port Auth., 441 Mass. 508. 517 (2004), to say that public nuisance liability may be imposed on a state agency that exceeds its governmental authority. DOT argues that the case instead rejects all public nuisance liability against state agencies.
4. Mandamus relief. DEP argues that it cannot be compelled to regulate DOT under G.L. c. 85, § 7A, which states that it “may issue regulations” as to salt storage. The judge concluded that, while regulation was discretionary, investigation of whether regulation was necessary was not discretionary.

1. Sovereign immunity. The cases cited by each party are ships passing in the night; the Court has apparently never resolved the relationship between sovereign immunity and the limited regulation permitted under the essential government functions doctrine, or even discussed them in the same case. If the Court reaches the question, it will have to untangle the two doctrines.
2. Interference with essential government functions. The Court may avoid the sovereign immunity question, because the trial judge seems to have read too much power into the essential government functions doctrine by assuming that a requirement to use a different facility or repair the existing facility could be a “negligible effect.” The cases seem to suggest that any intrusion on how DOT chooses to accomplish its core function will be more than negligible.
3. Public nuisance. DOT seems to have the better reading of Hull; the case does not support a public nuisance claim against a state agency.
4. Mandamus relief. The judge’s suggestion that an agency can be compelled to formally consider issuing regulations which the statute says it “may issue” seems untenable.