Editor’s Note: A divided Massachusetts Supreme Judicial Court this week ruled, four to two, that the State Energy Facilities Siting Board had the power to overrule the Cape Cod Commission and grant a so-called super permit to the developers of the controversial Cape Wind project. Chief Justice Margaret H. Marshall wrote a dissenting opinion, alongside Associate Justice Francis X. Spina. What follows is an excerpted text of the dissent by Chief Justice Marshall. A longtime seasonal resdent of West Tisbury, the chief justice will retire this fall.

The development of clean energy resources is an important national and state policy. The offshore wind-powered energy generating facility (wind farm) that Cape Wind proposes to construct in Nantucket Sound may further that policy by providing clean energy for the commonwealth. It is not our role, however, to evaluate whether as a matter of sound policy the project should be constructed. Rather, we must determine whether the approval process of the Cape Wind project comports with the laws of the commonwealth. It does not. Today’s decision that the certificate . . . . issued by the Energy Facilities Siting Board was proper is contrary to existing law and seriously undermines the public trust doctrine, which for centuries has protected the rights of the people of Massachusetts in commonwealth tidelands.

The court concludes that the commonwealth has fulfilled its fiduciary obligation to the people of Massachusetts because the siting board has issued a certificate to Cape Wind . . . authorizing transmission cables to traverse commonwealth tidelands . . . The siting board, however, does not have, and was not intended by the legislature to have, the right to act as fiduciary on behalf of the people with regard to commonwealth tidelands or to approve energy projects up and down the coastline of Massachusetts in commonwealth tidelands. It may be that the legislature or the legislature’s expressly authorized designee, exercising its responsibility as fiduciary, would conclude that transmission cables stretching across commonwealth tidelands from the shore to the commonwealth’s seaward boundary should be approved. But that authorization has not occurred. The court’s ruling to the contrary establishes a dangerous and unwise precedent, which has far-reaching consequences. A wind farm today may be a drilling rig or nuclear power plant tomorrow.

The court also concludes that the siting board acted appropriately by granting the certificate without considering any of the in-state impacts of the wind farm. Centuries of legislation and jurisprudence concerning the paramount rights of the people of the commonwealth to the use of the sea and shore lead me to disagree. The stakes are high. As we have recently seen in the Gulf of Mexico, the failure to take into account in-state consequences of federally authorized energy projects in federal waters can have catastrophic effects on state tidelands and coastal areas, and on all who depend on them.

The public trust doctrine stands as a covenant between the people of the commonwealth and their government, a covenant to safeguard our tidelands for all generations for the use of the people, traditionally for fishing, fowling, and navigation . . . The doctrine, and with it the public’s trust in government, once undermined is not easily restored. The court’s judgment, I fear, is a step in the wrong direction. I respectfully dissent.

The court acknowledges, as it must, that only the commonwealth, or an entity to which the legislature “properly has delegated authority,” may administer public trust rights. I cannot agree with the court’s conclusion that the legislature has delegated such authority to the siting board . . . only the commonwealth or an “entity to which the commonwealth has delegated authority expressly may administer public trust rights . . . The siting board’s enabling legislation provides for no such express delegation.

The requirement that any delegation by the legislature of authority to administer public trust rights be “express” is rooted in the “history of the origins of the commonwealth’s public trust obligations and authority, as well as jurisprudence and legislation spanning two centuries.” That history, jurisprudence and legislation has been recounted frequently and at length elsewhere . . . Briefly, as protector of the public trust, the commonwealth sits “in a fiduciary relation” to the people. Commonwealth tidelands are “impressed with a public trust, which gives the public’s representatives an interest and responsibility” in their development.

The commonwealth may delegate, and of course has delegated, the responsibility, or some of it, to administer its tidelands to a state agency. As noted, that delegation, when it occurs, must be explicit. Thus . . . the Department of Environmental Protection (DEP) may issue licenses for the construction of structures “in or over tide water” or cables “under tide water.” The legislature has been unmistakably clear . . .

The court reasons that . . . the siting board [has the authority] to “stand in the shoes” of DEP . . . I cannot agree. The siting board cannot “stand in the shoes” of DEP with respect to the administration of public trust rights unless the legislature has expressly authorized it to do so.

The court supports its conclusion by pointing to language . . . authorizing the siting board, in certain circumstances, to issue a certificate with respect to a proposed energy facility that “shall be in the form of a composite of all individual permits, approvals or authorizations which would otherwise be necessary for the construction or operation of the facility.” That language . . . makes no reference to tidelands and lacks any recognition of public trust rights, and, contrary to the court’s conclusion, the legislature has not “expressly vested authority” in the siting board to act with respect to public trust rights. The court cites no precedent supporting its “reading” of the statute, and there is none.

. . . Were the siting board statute itself and the case law not sufficiently clear to require a different outcome of this case, and they are, the legislative history of the creation of the siting board confirms that the legislature did not in fact delegate authority to the siting board to administer public trust rights. In 1971, in the face of a looming energy crisis of proportion equal to any today, the legislature created an Electric Power Plant Siting Commission . . . to make “an investigation and study of the regulatory procedures employed by the commonwealth and by its political subdivisions relative to the location and operation of electric utility generation and transmission facilities.” The legislature directed the commission to consider “the adequacy of existing state and municipal regulatory procedures to permit the furnishing of a sufficient supply of electric energy while, at the same time, preserving and protecting land, air and water resources” . . . In particular, the commission was directed to consider the “feasibility of a comprehensive state regulatory jurisdiction over the siting of electric generating plants and routing of major transmission facilities” . . . Nowhere in the commission’s charge did the legislature address expressly, or by implication, public trust rights in the commonwealth’s tidelands.

. . . The commission’s reports make clear that, in creating the siting board, the legislature’s intent was to ensure that “state and municipal regulatory procedures” balance the need for sufficient electric energy with “environmental protection, public health and public safety.” . . . The extensive legislative history, including three commission reports, multiple drafts of the legislation, amendments in both houses, and memoranda to the governor from various executive agencies, contains no reference to tidelands, tidewaters, tidal flats, land under coastal waters, the public trust, or the traditional rights of navigation, fishing, and fowling. The silence is deafening.

The legislature’s decision expressly to exempt issues concerning “offshore energy resources activities and offshore facilities” from its expansion of the commission’s scope of study reflects an understanding within the legislature that concerns relating to offshore facilities were not part of the commission’s scope of inquiry. This singular indication of the legislature’s consideration of issues potentially relevant to public trust rights in relation to the creation of the siting board suggests that the legislature understood that the creation of the siting board would not implicate those rights.

The siting board’s authority to grant a composite certificate is broad, but nothing in the statutory language, or its legislative history, indicates that such authority encompasses the power to act with respect to public trust rights. I would reverse on this ground alone.

The siting board’s lack of any authority to act with respect to public trust rights is sufficient to overrule its decision to grant the certificate to proceed with the transmission cables in the absence of final approval from DEP. I also dissent for a second, and independent, reason. Even if the siting board had the authority to act with respect to public trust rights, which I do not accept, the siting board’s position that it was under no obligation to consider — and indeed could not consider — any in-state impacts of the operation of the wind farm is untenable. What is the role of a state agency if not to safeguard in-state interests?

. . . Procedure does not determine outcome. As noted, no fiduciary acting on behalf of the people could or would ignore the potential impact on the public’s rights that might flow from the construction and operation of the wind farm. The court condones the disregard of those fiduciary obligations by concluding that consideration of the in-state impacts would necessarily result in a denial or contingent approval for the transmission cables (and thereby the wind farm). I cannot accept that reasoning. Our role is not to assume the outcome but to ensure that the proper process has been followed.

. . . The question here is whether the commonwealth is required to consider the potential impacts on the commonwealth and its people were it to allow use of its tidelands for the transmission cables. How the siting board or DEP ultimately would respond after considering such impacts is not before us. I am not willing to assume, as the court does, that any action that could possibly result from such consideration would necessarily be preempted by federal law. Nor am I willing to assume that the results of any evaluation of the in-state impact of the wind farm would never be taken into consideration by federal authorities. Comity within our federal system has more meaning than the court’s crabbed approach.

. . . The public trust doctrine and government energy policy are not at odds. Indeed, they are complementary. Both express the people’s paramount interest in the wise and fruitful use of natural resources. Today’s opinion, however, casts these two allies in opposition, and exalts regulatory expediency at the cost of fiduciary obligation.

By issuing a certificate . . . which purports to include the “equivalent” of a . . . tidelands license, the siting board has purported to act as the protector of the public’s long-standing rights under the public trust doctrine without the necessary express legislative authority to do so. Its usurpation of the commonwealth’s fiduciary responsibility to the people, and DEP’s complicit agreement with that usurpation, should not be condoned. Moreover, even if the siting board had the authority to act, it has failed to exercise its role of fiduciary on behalf of the public because it failed to consider the in-state impacts of the wind farm.

For these reasons, I respectfully dissent.