Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board

In 2005, the Energy Facilities Siting Board (siting board), acting pursuant to G. L. c. 164, § 69J (§ 69J), approved the petition of Cape Wind Associates, LLC (Cape Wind), to build and operate two 115 kilovolt underground and undersea electric transmission cables or lines (transmission project, or transmission Unes) that would connect Cape Wind’s proposed offshore wind-powered energy generating facility (wind farm) to the regional electric power grid. This court affirmed the siting board’s decision. Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities *666Siting Bd., 448 Mass. 45, 56 (2006) (Alliance I). Actual construction of the transmission lines, however, requires additional permits, licenses, and approvals from a number of different State and local authorities.

In 2007, the Cape Cod Commission (commission) denied Cape Wind’s proposed development of regional impact (DRI); approval of the DRI by the commission was one of the required “approvals” for the transmission project. Soon thereafter, Cape Wind applied to the siting board pursuant to G. L. c. 164, § 69K (§ 69K), for a “certificate of environmental impact and public interest” (certificate, or § 69K certificate) that would constitute a “composite” of the “individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation” of the transmission project. Id. After conducting an adjudicatory proceeding, the siting board granted the requested certificate in May, 2009. Three of the interveners in the certificate proceeding appeal from the siting board’s decision pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5: the Alliance to Protect Nantucket Sound (Alliance), the commission, and the town of Barnstable (Barnstable) (collectively, petitioners). They seek reversal of the decision, and also request that we declare invalid a regulation of the Department of Environmental Protection (DEP). We affirm the decision of the siting board and conclude that the challenged regulation is valid.

Background.5 Cape Wind plans to construct a wind farm consisting of 130 wind turbine generators, each 440 feet tall, on Horseshoe Shoal in Nantucket Sound, a location that is more than three miles from any Commonwealth coast and entirely in Federal waters. As a result, the wind farm itself requires only Federal permits. However, the transmission lines at issue in this case, which Cape Wind proposes to build to connect the wind farm to the regional power grid, will pass under Massachusetts territorial waters in Lewis Bay and Nantucket Sound for approximately six miles and therefore require State and local permits, licenses, and approvals for their construction and operation. The *667transmission lines — two cables, each comprised of three copper conductors and one fiber optic cable bundled together — will carry electricity across an approximately 18.4 mile route, running under the seabed through Nantucket Sound and Lewis Bay for 12.5 miles, coming ashore in the town of Yarmouth (Yarmouth), and continuing underground for 5.9 miles through Yarmouth and Barnstable to an existing switching station in Barnstable.

Cape Wind’s efforts to secure the necessary Federal and, of greater significance here, State and local regulatory approvals for its wind farm and transmission project have a lengthy history. In November, 2001, Cape Wind began to seek the permits required for the transmission project by fifing an expanded environmental notification form (ENF) with the Executive Office of Energy and Environmental Affairs (EOEEA). The filing set in motion a joint review by the EOEEA under the Massachusetts Environmental Protection Act (MEPA),6 and by the commission under § 12 (i) of St. 1989, c. 716, “An Act establishing the Cape Cod commission” (Cape Cod Act). Cape Wind stated in the ENF that it sought a DRI approval from the commission. After holding a public hearing, the Secretary of the EOEEA determined that the transmission project would require Cape Wind to file an environmental impact report (EIR) in order to comply with MEPA, and outlined *668the scope of the joint DRI-EER review. Pursuant to a memorandum of understanding with the EOEEA, the commission held public hearings and submitted comment letters to provide input for the MEPA review.

*667“Because MEPA (like the Cape Cod Commission Act) is the product of state law, not federal law, MEPA review (and by extension Cape Cod Commission review) applies only to those portions of the project that are located within Massachusetts, including its territorial waters (generally within three nautical miles of the low water mark of the shore). The proposed [wind farm] is located outside of Massachusetts and, therefore, is not subject to state regulatory requirements. There is one notable exception . . . federal law (pursuant to the Coastal Zone Management Act) specifically delegates review authority over projects in federal waters to the Coastal Zone Management Office of the adjacent coastal state . . . .”

*668In 2002, Cape Wind sought permission from the siting board pursuant to § 69J, to construct the transmission lines.7’8 “The approval of the [siting] board is required prior to the commencement of construction of any ‘facility’[9] ... in the Commonwealth, and no State agency may issue a construction permit for any such facility unless the petition to construct the facility has already received approval from the [siting] board.” Alliance I, 448 Mass, at 46-47, citing § 69J. Following a three-year review, the siting board approved construction of the transmission line facility under § 69J in 2005,10 a decision this court affirmed in 2006. See id. at 56.

*669In March, 2007, the Secretary of the EOEEA issued a final environmental impact report, finding the transmission project in compliance with MEPA. Cape Wind then renewed its efforts to obtain DRI approval from the commission. In deciding whether to grant such approval under the Cape Cod Act, St. 1989, c. 716, the commission assesses whether a project complies with minimum performance standards (MPS) set forth in its regional policy plan (RPP), a county ordinance enacted under the Barn-stable County Home Rule Charter. St. 1988, c. 163.

In its review of Cape Wind’s DRI application, the commission first deemed it incomplete for failure to include certain engineering plans and proof of control of the property along the transmission line route. Nevertheless, the commission held three days of public hearings in May, 2007, and after receiving additional information from Cape Wind, found the application complete as of August 3, 2007. The commission closed public hearings on August 8, 2007, triggering, under § 13 (a) of the Cape Cod Act, a sixty-day period for the commission to make a decision, in the absence of which Cape Wind’s DRI application would receive constructive approval. The commission held additional public hearings in September, 2007, and sought still more information. At the commission’s request, on September 11, 2007, Cape Wind agreed to extend the decision deadline to October 21, 2007, and provided responses to the specific information requests. On October 18, 2007, the commission denied the DRI application “without prejudice” on grounds that Cape Wind had not submitted the full body of information that it had sought and that Cape Wind would not agree to another extension of the decision deadline.11-12

Cape Wind did not appeal from the DRI decision, but in November, 2007, filed an initial petition with the siting board *670to obtain a § 69K certificate.13 See 980 Code Mass. Regs. § 6.00 (1993). As previously indicated, such a certificate, if issued, serves as “a composite of all individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation of the facility.” G. L. c. 164, § 69K. Cape Wind requested that the certificate include the equivalent of the necessary DRI approval by the commission, and eight additional State and local permits. Among the eight was a tidelands license under G. L. c. 91 (c. 91); tidelands licenses are generally within the regulatory jurisdiction of DER See c. 91, § 14.14

In December, 2007, Cape Wind filed a formal certificate application, which the siting board consolidated with Cape Wind’s initial petition. See G. L. c. 164, § 69L; 980 Code Mass. Regs. §§ 6.02, 6.03. The siting board granted intervener status to the five government entities with permits at issue — Barnstable, Yarmouth, DEP, the Executive Office of Transportation and Public Works, and the commission; and to three nonprofit *671organizations — Conservation Law Foundation, Clean Power Now, Inc., and the Alliance. See G. L. c. 164, § 69N.15 From August through October, 2008, the parties conducted written discovery. Cape Wind, the commission, and DEP each submitted prefiled testimony of witnesses. Also before the siting board were 330 exhibits, consisting mainly of responses to information requests.16 The siting board’s presiding officer held two days of hearings, during which witnesses whose direct testimony had been prefiled were subject to cross-examination. The siting board issued a tentative decision on May 11, 2009, and then a final decision granting the certificate on May 21, 2009.

Each of the petitioners filed an appeal from the siting board’s decision in the county court pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5. A single justice consolidated the petitioners’ appeals, consolidated with them Barnstable’s and the commission’s appeal in an action Barnstable and the commission had brought against the siting board in the Superior Court,17 and reserved and reported these appeals to this court, along with stipulations concerning claims for declaratory relief brought by the Alliance and Barnstable.18 We refer to additional facts from the siting board’s administrative record where pertinent to the discussion that follows.

*672Discussion. Each of the petitioners challenges the siting board’s decision on several grounds, and the Alliance and Barn-stable separately challenge the validity of a DEP regulation relevant to that decision, 310 Code Mass. Regs. § 9.12(2)(b)(10) (2008). We discuss first the challenges that may be described loosely as claims concerning aspects of the siting board’s jurisdictional authority in this case; we then review the challenges that go to the validity of the siting board’s decision. Finally, we consider the challenge to the DEP regulation.19

A. Jurisdictional authority claims. 1. Authority to override a DRI decision by the commission. The petitioners assert that the siting board had no jurisdiction under § 69K to grant the equivalent of an approval of Cape Wind’s DRI, and thereby to override the commission’s denial. We consider each of their arguments, and conclude that none has merit.

a. Cape Cod Act. Section 17 (b) of the Cape Cod Act states that “[a]ny party aggrieved by a commission decision on a [DRI] may appeal the commission’s decision to the Barnstable county superior court or the land court”; § 17 (d), in turn, provides that “[t]he foregoing remedy shall be exclusive.” The petitioners take the position that the Cape Cod Act, enacted in 1989, controls as more specific and more recent legislation than the siting board’s enabling statute, G. L. c. 164, §§ 69G-69Q (siting board statute), originally enacted in 1973. Accordingly, in their view, § 17 (d) of the Cape Cod Act provides Cape Wind’s exclusive avenue to challenge the commission’s DRI denial.

*673We presume that the Legislature acts with full knowledge of existing laws. Suliveres v. Commonwealth, 449 Mass. 112, 116 (2007). Commonwealth v. Callahan, 440 Mass. 436, 440-441 (2003). Thus, “[w]hen construing two or more statutes together, ‘[w]e are loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication.’ Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, [382 Mass. 580, 585 (1981)]. ‘The longstanding test for the principle of implied repeal is whether the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand. Only then is the former statute repealed.’ Commonwealth v. Graham, 388 Mass. 115, 125 (1983).” Dedham Water Co. v. Dedham, 395 Mass. 510, 518 (1985).

Applying these principles here, we find no disabling inconsistency between the siting board statute and the Cape Cod Act. Rather, as the facts of these cases illustrate, the two statutes can be read together, giving meaning and purpose to both.20 See Commonwealth v. Harris, 443 Mass. 714, 725 (2005) (“Rather than mechanically applying the concept that the more ‘recent’ or more ‘specific’ statute . . . trumps the other, we should endeavor to harmonize the two statutes so that the policies underlying both may be honored”). Under § 69L (A) (4) of the siting board statute, an applicant for a certificate must first try to obtain the necessary regulatory approvals from the relevant permitting agencies. Cape Wind followed this course with respect to its DRI, seeking the commission’s approval in the first instance. Accordingly, the commission had the opportunity to review the transmission project under the relevant provisions of the Cape Cod Act and the commission’s implementing regulations. When the commission exercised its authority to deny the DRI, the petitioners are correct that Cape Wind could have appealed under § 17 of the Cape Cod Act. However, the denial also triggered Cape Wind’s independent right to seek a certificate from the siting board under § 69K,21 a course that Cape Wind pursued. *674And § 69K directs that when the siting board issues a certificate, ‘ ‘ [n] otwithstanding the provisions of any other law to the contrary . . .no state agency or local government shall impose or enforce any law, ordinance, by-law, rule or regulation nor take any action . . . which would delay or prevent the construction, operation or maintenance of such facility” (emphasis added).

As this review indicates, the two statutes can operate harmoniously together. The fact that § 69K authorizes the siting board to issue a certificate for a particular project that supersedes a commission decision under the Cape Cod Act does not thereby make the statutes inconsistent.22 The commission’s construction of the two statutes would have § 69K, and the siting board statute generally, apply everywhere in the Commonwealth except Barnstable County, a reading inconsistent with the siting board’s responsibility “to provide a reliable energy supply for the commonwealth'’'’ (emphasis added). G. L. c. 164, § 69H. See City Council of Agawam v. Energy Facilities Siting Bd., 437 Mass. 821, 828 (2002) (City Council of Agawam) (“the intent and purpose of the [siting board] statute ... is in part to ensure that local boards do not use their power over licenses and permits to thwart the needs of the broader community for a reliable, affordable, and environmentally sound energy supply”).23

b. The commission as local agency or body. The first paragraph *675of § 69K authorizes an electric company to seek a certificate from the siting board if its proposed “facility cannot be constructed due to any disapprovals, conditions or denials by a state or local agency or body (emphasis added); the phrase “local agency or body” is not defined. The section also uses the term “local government,” which is defined in G. L. c. 164, § 69G, to mean, “any political subdivision of the commonwealth, including any county, city, town, district agency or regional agency.” The Cape Cod Act, in turn, states that the commission “shall be the regional planning agency for Cape Cod” and that it “shall be an agency within the structure of [the] Barnstable county government.” St. 1989, c. 716, § 3 (a). The petitioners contend that as defined or described in the Cape Cod Act, the commission qualifies as a “local government,” but not as a “local agency or body” for purposes of § 69K. Accordingly, they claim, the commission’s denial of a DRI cannot properly serve as the basis for a petition to the siting board for a certificate. The argument fails. We agree with the siting board that when one reads § 69K as a whole, it is clear that the Legislature has used the term “local government,” “local agency,” and “local agency or body” interchangeably.24 And as we discuss later in connection with *676another provision in § 69K, the siting board’s interpretation is entitled to respect and deference. See City Council of Agawam, 437 Mass, at 828. Moreover, the commission is defined in § 3 (a) of the Cape Cod Act as a “regional” agency within the structure of “county government.” As such, the commission is clearly a local (as opposed to State) agency, and therefore it qualifies as a “local agency or body” within the meaning of § 69K in any event.

2. Authority to include the equivalent of a c. 91 tidelands license in a § 69K certificate. The Alliance, joined by Barn-stable, claims that § 69K does not authorize the siting board to include in a certificate granted under that section any type of license relating to the Commonwealth’s tidelands.25 The argument is that these tidelands are both owned and held in trust by the Commonwealth to protect the public’s rights in them, and that no one — including a State agency such as the siting board — may claim authority to act in connection with the tidelands unless granted express legislative authority to do so. The Alliance contends that § 69K contains no language of delegation or even mention of the tidelands or the public trust with which they are imbued, and therefore, the siting board cannot grant a certificate that incorporates, in effect, a c. 91 tidelands license.

The public trust doctrine expresses the government’s longstanding and firmly established obligation to protect the public’s interest in the tidelands and, in particular, to protect the public’s right to use the tidelands “for, traditionally, fishing, fowling, and navigation.” Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007) (Moot I). See Trio Algarvio, Inc. v. Commissioner of the Dep’t of Envtl. Protection, 440 Mass. 94, *67797 (2003); Fafard v. Conservation Comm’n of Barnstable, 432 Mass. 194, 198 (2000) (Fafard); Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 632 (1979). There is no question that the Commonwealth tidelands through which Cape Wind’s transmission lines will pass are held in the public trust to which the Alliance refers. We also agree with the Alliance that under the public trust doctrine, “only the Commonwealth, or an entity to which the Legislature properly has delegated authority, may administer public trust rights.” Fafard, supra at 199. See id. at 196. See also Commonwealth v. Charlestown, 1 Pick. 180, 184-185 (1822). The question, then, is whether the Legislature in § 69K “properly has delegated authority,” Fafard, supra at 199, to the siting board to exercise public trust rights. The answer requires examination of c. 91, the waterways statute administered by DEP, § 69K, and the statutory scheme of which § 69K is a part.

The Legislature has delegated to DEP the authority to license “structures” in the Commonwealth’s tidelands, provided that they “serve a proper public purpose and that said purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands.” G. L. c. 91, § 14. See id. at § 18. In doing so, DEP is to “protect the interests of the Commonwealth” in the tidelands. Id. at § 2. Section 69K, in turn, grants authority to the siting board to issue a certificate in accordance with §§ 69K-690, which

“shall be in the form of a composite of all individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation of the facility[26] and that portion of the certificate which relates to subject matters within the jurisdiction of a state or local agency shall be enforced by said agency under the applicable laws of the commonwealth as if it had been directly granted by the said agency” (emphasis added).

*678We read the quoted provision in § 69K as an express legislative directive to the siting board to stand in the shoes of any and all State and local agencies with permitting authority over a proposed “facility” — that is, a directive to assume all the powers and obligations of such an agency with respect to the decision whether to grant the authorization that is within the agency’s jurisdiction, with regulatory enforcement thereafter returned to that agency. DEP, as a State agency, is by definition included within the broad coverage of § 69K. There is no mention of public trust rights or obligations in § 69K, but there does not need to be. The Legislature has designated DEP as the agency charged with responsibility for protecting public trust rights in tidelands through the c. 91 licensing program, and where a tidelands license is necessary for a proposed facility, the Legislature has, in § 69K, expressly vested authority in the siting board to act in DEP’s stead with respect to the initial permitting decision. Accordingly, an evaluation of § 69K’s relationship to the public trust doctrine must take into account the fact that in a case such as this, § 69K operates as an overlay of c. 91.

Other sections of the siting board statute support our reading of § 69K, most significantly, G. L. c. 164, § 690 (§ 690). That section specifies the issues on which the siting board must make findings in its decision whether or not to grant a § 69K certificate, and provides that the siting board must take into account whether the facility seeking the certificate will conform to the various laws, ordinances, and regulations that would otherwise govern it in the absence of a § 69K certificate. G. L. c. 164, § 690 (3). See note 36, infra, where § 690 is quoted in full. One set of such laws is c. 91, §§ 2, 14 and 18, with their requirement that DEP protect the public’s interest in tidelands in issuing any license or permit pursuant to c. 91. Because § 69K delegates to the siting board both the power and the obligation to stand in the shoes of DEP, if DEP had not made the findings that the siting board adopted here,27 the siting board would have had to undertake the same reviewing process that *679DEP did in evaluating Cape Wind’s c. 91 tidelands license application.28

In sum, we find in § 69K a sufficiently articulated legislative delegation of authority to the siting board to act in the place of DEP, and to administer the public trust rights within DEP’s jurisdiction in the limited context of deciding whether to approve the equivalent of a c. 91 tidelands license.29 Contrast *680Fafard, 432 Mass, at 198-199, 207 (where there was no grant of authority by Legislature, local conservation commission could not exercise public trust rights, and bylaw purporting to do so was invalid). Contrast also Moot I, 448 Mass, at 347-353.30 Accordingly, the siting board in this case did not exceed its *681authority by including the equivalent of a c. 91 tidelands license in the certificate it granted Cape Wind.

In reaching this conclusion, we also reject the alternative argument advanced by the Alliance that focuses on the following language in the final clause of § 69K’s first paragraph:

“The [siting] board shall consider [a] petition providing: . . . the facility cannot be constructed due to any disapprovals, conditions or denials by a state or local agency or body, except with respect to any lands or interests therein, excluding public ways, owned or managed by any state agency or local government” (emphasis added).

According to the Alliance, the quoted “except” clause means that the siting board has no power whatsoever to take action with respect to a license or permit that an agency has disapproved, conditioned or denied if that license or permit pertains to “public” lands — that is, lands owned or managed by any State or local agency — including tidelands managed by DEP under c. 91. The siting board considered but disagreed with the Alliance’s argument, concluding:

“Read in context, the [‘except’ clause] in [the first paragraph of § ] 69K means that a petitioner may not rely upon a state agency or local government refusal with respect to public lands as a basis to file an initial petition. However, this language does not govern the scope of the Certificate, which is addressed in the [fifth] paragraph of [§ ] 69K, and which states that a Certificate takes the place of ‘all’ state or local permits” (emphasis in original).

We accord substantial discretion to an agency to interpret the statute it is charged with enforcing, especially where, as here, see § 69H (1), the Legislature has authorized the agency to promulgate regulations. City Council of Agawam, 437 Mass. at 828. See Middleborough v. Housing Appeals Comm., 449 Mass. *682514, 523 (2007) (Middleborough). The siting board’s interpretation of the “except” clause treats it as limiting only the types of permit denials that can serve as a basis for a company to petition for a § 69K certificate, but not as a limitation on the siting board’s authority to review and potentially override that permit denial, if the company has an independent basis on which to file a certificate petition. As the siting board stated, the structure of § 69K supports this interpretation. The first paragraph of the section in which the “except” clause appears is devoted to listing the specific alternative bases that would justify the filing of a certificate petition, but does not discuss the scope or contents of the certificate itself. The fifth paragraph, however, does focus on contents, and describes the certificate as a “composite of all individual permits” otherwise required. While the meaning of the “except” clause is not entirely clear, the siting board’s construction is reasonable, and we defer to it. See Alliance I, 448 Mass, at 50-51 n.6 (“the substantial deference owed to an agency’s interpretation of a statute it is charged to enforce includes approving an interpretation of statutory language that may be read in two ways”). See also Middleborough, 449 Mass, at 523, and cases cited (“Where the statutory language is not without ambiguity . . . , our deference to the agency’s interpretation of the governing statute is highest”). Accordingly, we conclude that the except clause did not prohibit the siting board from considering and acting on Cape Wind’s request for the equivalent of a c. 91 tideland license.

3. Jurisdiction to consider “in-State impacts” of the wind farm. In its decision, the siting board adopted the presiding officer’s determination that it lacked jurisdiction to consider the “in-State impacts” of the wind farm itself due to the location of the wind farm in Federal waters, and therefore that the scope of the certificate proceeding would be limited to the transmission lines only and evidence concerning the wind farms’s impacts would be excluded. See note 14, supra. The petitioners assert that no such jurisdictional limitation exists, and the siting board was obliged to assess the in-State impacts of the entire wind farm project in making its § 69K certificate decision.31

There is no dispute that the wind farm, located entirely in *683Federal waters, will lie outside the jurisdiction of the siting board as well as the State and local permitting agencies with permits at issue in the siting board’s § 69K proceeding. See Alliance I, 448 Mass, at 48 (“The area in which the wind farm itself is proposed to be built is located in Federal waters and, thus, falls beyond the scope of the [siting] board’s jurisdiction”). The petitioners assert, however, that whether as a matter of making the findings required by § 690 or of complying with public trust doctrine obligations, the siting board had the power and the duty to consider the potential effects of the wind farm on the Commonwealth. The thrust of their claim appears to be that as a general tenet of environmental and perhaps all regulation of private development projects, regulatory agencies consider — and must consider — all direct and indirect impacts of the entire project; and because Cape Wind’s transmission lines will connect directly to and service the wind farm, evaluation of the impacts of the wind farm itself was a mandatory part of the siting board’s review of the transmission project. The claim fails for two reasons.

First, the siting board statute generally, and §§ 69J, 69K, and 690 in particular, state with unmistakable clarity that the siting board’s regulatory point of focus at all times is to be on the proposed “facility.” The petitioners do not, and could not, dispute that Cape Wind’s two new 115 kilovolt electric transmission lines constitute the only “facility” subject to the siting board’s review in this case. Accordingly, insofar as § 690 (2) directs the siting board to make findings relating to “considerations of environmental protection, public health and public safety,” those findings are solely to concern “the compatibility of the facility” with such considerations (emphasis added).32 Cf. Villages Dev. Co. v. Secretary of the Executive Office of Envtl. *684Affairs, 410 Mass. 100, 112-115 & n.13 (1991) (where Secretary of [then] EOEA had jurisdiction under MEPA to review private development project based on one necessary State “permit” [grant of easement over bicycle path to construct bridge], MEPA review statutorily restricted to direct and indirect environmental impacts related to easement itself, not impacts of entire development project, even if bridge necessary for entire project to go forward).

The second reason the petitioners’ bid for review of the wind farm’s impacts fails is the one the siting board cites: the wind farm itself will be within Federal jurisdiction, and Federal jurisdiction in this area is paramount. See United States v. Maine, 420 U.S. 515, 522, 524 (1975) (“control and disposition [of all lands underlying sea] in the first instance are the business of the Federal Government rather than the States”; “paramount rights to the offshore seabed inhere in the Federal Government as an incident of national sovereignty”); Ten Taxpayer Citizens Group v. Cape Wind Assocs., LLC, 373 F.3d 183, 196-197 (1st Cir. 2004), cert, denied, 543 U.S. 1121 (2005) (Ten Taxpayer Citizens) (by enacting Outer Continental Shelf Lands Act of 1953 [OCSLA], 43 U.S.C. §§ 1331 et seq., “Congress retained for the federal government the exclusive power to authorize or prohibit specific uses of the seabed beyond three miles from shore”); Alliance to Protect Nantucket Sound, Inc. v. Department of the Army, 398 F.3d 105, 107-108 (1st Cir. 2005).33 Contrary to the Alliance’s claim, the express assertion of exclusive Federal power and control over the outer continental shelf (defined in OCSLA as all submerged lands lying in navigable *685waters beyond three miles from shore, see 43 U.S.C. § 1331[a]), serves to preempt any attempt by the Commonwealth or its agencies to regulate structures or facilities placed in that area. See Ten Taxpayer Citizens, supra at 197 (“If adopted and enforced on the outer Continental Shelf, statutes like [c.] 91 . . . which require[s] the approval of state agencies prior to construction, would effectively grant state governments a veto power over the disposition of the national seabed,” a result “fundamentally inconsistent with the OSCLA”).

If the siting board were to assert authority to consider the impacts of the wind farm itself, as the petitioners argue that it should, presumably that authority would encompass the power to deny or condition Cape Wind’s requested certificate on account of such impacts. But a denial of the certificate on that ground, or even conditioning, would be tantamount to a denial of the wind farm project itself, because, as the siting board found in its § 69J decision approving construction of the transmission project in 2005, the transmission lines are necessary for the wind farm’s operation. See Alliance I, 448 Mass, at 49-50, 55-56. The siting board does not have authority to do indirectly what it cannot do directly. See Ten Taxpayer Citizens, supra. Cf. New England Legal Found, v. Massachusetts Port Auth., 883 F.2d 157, 174 (1st Cir. 1989) (holding defendant authority’s landing fee regulations invalid under Federal law; fee regulations “appear to be an attempt to modify conduct [e.g., control air traffic] rather than to recover operational cost, and are thus an incursion into an area of regulation preempted by [Federal law], [The authority] cannot do indirectly what it is forbidden to do directly”). Contrast Leisure Time Cruise Corp. v. Barnstable, 62 F. Supp. 2d 202, 208-209 (D. Mass. 1999) (where local and regional authorities sought to regulate aspects of actual docking of plaintiff’s boat in Hyannis Harbor, this regulation was “ancillary to Leisure Time’s operation of its gambling cruise” in Federal waters, and not preempted under applicable Federal law). Contrast also North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 436-438 (1981) (language of subdivision control statute, G. L. c. 41, § 81M, was clear in authorizing planning board to evaluate adequacy of public way outside proposed subdivision in ruling on subdivision plan); Dupont v. Dracut, 41 Mass. App. Ct. 293, 295 (1996) (under established principles of zoning law, defendant town of Dracut *686could prohibit plaintiff from using portion of single lot located partly in Dracut and partly in Lowell for use not permitted in Dracut zoning district but permitted in Lowell: “Whether in the same or two different municipalities, if a lot is located in two different zoning districts, a town may prohibit the portion in one district from being used for an accessory use to serve a principal use not allowed in that district”).34

We emphasize that the siting board properly could, and did, consider the in-State impacts of the entire length of Cape Wind’s transmission lines even though the lines will lie in part in Federal waters because those impacts relate directly to the “facility” over which the siting board has jurisdiction. See Leisure Time Cruise Corp. v. Barnstable, supra. In doing so, the siting board met its public trust obligations arising from the fact that the facility under review is located in Commonwealth tidelands. Here, the siting board, through the presiding officer, allowed the testimony of the petitioners’ witnesses so far as it pertained to the transmission project; the testimony deemed inadmissible related solely to the claimed impacts of the wind farm’s turbines. See note 16, supra. The siting board’s presiding officer did not abuse her discretion or commit other error of law by ruling that evidence related to general in-State impacts of the wind turbines, unconnected to the transmission project, was inadmissible.

The wind farm, including its in-State impacts, has undergone extensive scrutiny by Federal and State agencies. In addition to the National Environmental Policy Act review by the Minerals Management Service, see note 6, supra, the Coastal Zone Management Office (CZM) has certified to Federal permitting authorities that Cape Wind’s entire project, including the wind farm, will be consistent with CZM policies.35 Moreover, the siting board has conditioned the certificate it granted Cape Wind *687for the transmission project on Cape Wind’s receipt of all necessary Federal and State permits for the wind farm. In reviewing the siting board’s decision under § 69J to authorize Cape Wind’s construction of the transmission lines, this court approved of the siting board’s determination that it was required to defer to Federal review. See Alliance I, 448 Mass, at 53-54. We do so again here.

4. Cape Wind’s organizational status. Section 69K provides that “[a]ny electric . . . company which proposes to construct or operate facilities in the commonwealth may petition the siting board for a certificate.” The term “electric company” is defined in G. L. c. 164, § 1, as “a corporation organized under the laws of the commonwealth for the purpose of making . . . selling, transmitting, distributing, transmitting and selling, or distributing and selling, electricity within the commonwealth.” The commission argues that because a limited liability company is not a corporation, see G. L. c. 156C, § 2 (5); CFM Buckley7 North, LLC v. Assessors of Greenfield, 453 Mass. 404, 407 (2009), Cape Wind does not qualify as an electric company as defined by § 1, and, thus, the siting board had no jurisdiction to entertain its certificate petition under § 69K. While questions of subject matter jurisdiction may be raised at any time, Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003); Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981), the commission has waived the issue by failing to raise it before the siting board. “The question at the heart of subject matter jurisdiction is, ‘Has the Legislature empowered the [agency] to hear cases of a certain genre?’ ” Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., ante 53, 56-57 (2010) (Doe No. 3974), quoting Wachovia Bank, Nat’l Ass’n v. Schmidt, 546 U.S. 303, 316 (2006). See Middleborough, 449 Mass, at 520, quoting Black’s Law Dictionary 870 (8th ed. 2004) (“Subject matter jurisdiction is ‘jurisdiction over the nature of the case and the type of relief sought’ ”). The Legislature has designated the siting board as the administrative authority empowered to hear and grant petitions for certificates or composite *688permits sought by entities who claim that actions by other permitting agencies are preventing or delaying their ability to move forward with energy projects. Whether a petitioning entity has a permissible organizational form is not a question of siting board subject matter jurisdiction but one that concerns a substantive element of the entity’s prima facie case for relief. See Middle-borough, supra at 520-521. See also Doe No. 3974, supra at 57. Cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (employer discrimination case under Title VII of Civil Rights Act of 1964; after judgment entered in plaintiff’s favor, employer moved to dismiss for want of Federal subject matter jurisdiction, asserting for first time insufficient number of employees to be subject to Act; court rejected argument: “the threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue”). Because the com