(concurring in part and dissenting in part, with whom Spina, J., joins). 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, LLC (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 of environmental impact and public interest” (certificate), G. L. c. 164, § 69K (§ 69K), issued by the Energy Facilities Siting Board (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.1
The court concludes that the Commonwealth has fulfilled its fiduciary obligation to the people of Massachusetts because the *702siting board has issued a certificate to Cape Wind under § 69K authorizing transmission cables to traverse Commonwealth tidelands. See ante at 679-681. 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. See ante at 686-687. 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. See Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007) (Moot 1); Fafard v. Conservation Comm’n of Barnstable, 432 Mass. 194, 198 (2000) (Fafard), and cases cited. 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.2
*703A
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. Ante at 677, quoting Fafard, supra at 199. I cannot agree with the court’s conclusion that the Legislature has delegated such authority to the siting board. In Fafard, supra at 197, we once again made clear that only the Commonwealth or an “entity to which the Commonwealth has delegated authority expressly” may administer public trust rights (emphasis added). Accord Moot I, supra at 347 (same). See Commonwealth v. Charlestown, 1 Pick. 180, 185 (1822) (Legislature may “delegate” power under public trust doctrine to authorize construction of bridge over navigable waterway, “but, until they have made such delegation in express terms, it is a branch of sovereign power to be exercised by the [L]egislature alone” [emphasis added]). 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.” Fafard, supra at 199. That history, jurisprudence, and legislation has been recounted frequently and at length elsewhere. See, e.g., Arno v. Commonwealth, ante 434, 449-453 (2010) (Amo)\ Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-649 (1979). Briefly, as protector of the public trust, the Commonwealth sits “in a fiduciary relation” to the people. Commonwealth v. Rox-bury, 9 Gray 451, 492 (1857). Commonwealth tidelands are “impressed with a public trust, which gives the public’s representatives an interest and responsibility” in their development. Boston Waterfront Dev. Corp. v. Commonwealth, supra at 649. See Trio Algarvio, Inc. v. Commissioner of the Dep’t of Envtl. Protection, 440 Mass. 94, 97 (2003) (Legislature has “obligation to protect the public’s interest”).
The Commonwealth may delegate, and of course has delegated, the responsibility, or some of it, to administer its tidelands to a State agency. See Moot I, supra, and cases cited. As noted, that delegation, when it occurs, must be explicit. Thus, pursuant to *704G. L. c. 91, the Department of Environmental Protection (DEP) may issue licenses for the construction of structures “in or over tide water” or cables “under tide water.” Id. at § 14. See id. at § 18 (such licenses are “revocable”). The Legislature has been unmistakably clear that in granting such licenses DEP “shall protect the interests of the commonwealth” and its inhabitants in “lands, rights in lands, flats, shores,” “rights in tide waters,” and “tidelands” within the Commonwealth. Id. at § 2. See Moot /, supra at 342-343 (“obligation to preserve the public trust” has been expressly delegated by Legislature to DEP).3
The court reasons that because the Legislature has expressly delegated authority to administer public trust rights to DEP, and because § 69K, in the court’s view, directs the siting board to “stand in the shoes” of DEP, ante at 678, § 69K provides a “sufficiently articulated legislative delegation of authority” to the siting board to administer public trust rights. Ante at 679. 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. Such an express authorization is the only “articulation” that is “sufficient” to delegate fiduciary responsibilities. See Fafard, supra at 198-199 (town may not administer public trust rights in DEP’s place without express delegation of authority).
The court supports its conclusion by pointing to language in § 69K authorizing the siting board, in certain circumstances, to *705issue 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.” Ante at 677. That language, as does the rest of § 69K, 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. Ante at 678. The court cites no precedent supporting its “reading” of the statute, and there is none. See ante at 678-681.4 Rather, the court’s “reading” of the statute is at odds with our prior public trust jurisprudence, both ancient and contemporary.
We recently held that broad language in G. L. c. 185, § 45 (registration act), authorizing the Land Court to issue a judgment after a land registration proceeding that “shall be conclusive upon and against all persons, including the commonwealth” (emphasis added), was not sufficient to constitute “an express delegation” to relinquish the rights of the public held in trust by the Commonwealth. Arno, supra at 451. The registration act in Arno, like the siting board statute, G. L. c. 164, §§ 69G-69Q, makes no reference to tidelands or to the public’s rights therein. It is inconsistent with Amo to reason that an express delegation of authority by the Legislature to DEP to administer public trust *706rights can constitute “express” delegation to the siting board because of broad language in § 69K, which is even less specific than the language at issue in Arno. In Arno, as in Moot I, supra at 351-353, there was a relinquishment or extinguishment of the public’s rights in Commonwealth tidelands, while here there is not. The court correctly notes that the decisions of this court have “recognized a difference” between a legislative delegation of authority to administer public trust rights and duties and a permanent relinquishment of the public’s rights in tidelands. Ante at n.30. But that difference is inconsequential in the context of this case. In either circumstance (delegation of authority to administer the rights or relinquishment of the rights) our jurisprudence has made abundantly clear that the Legislature must act expressly. It has not done so here.5
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 (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” (emphasis added). Res. 1971, c. 78. 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” (emphasis added). Id. In particular, the commission was directed *707to consider the “feasibility of a comprehensive state regulatory jurisdiction over the siting of electric generating plants and routing of major transmission facilities” (emphasis added). Id. Nowhere in the commission’s charge did the Legislature address expressly, or by implication, public trust rights in the Commonwealth’s tidelands.6
The commission filed three reports — 1973 House Doc. No. 5891 (First Report), 1973 House Doc. No. 5892 (Second Report), and 1973 House Doc. No. 6190 (Third Report) — the third of which proposed statutory language that would eventually create the siting board. See Appendix A to Third Report, supra at 31-43. That language, along with other related proposals,7 was considered by the House Committee on Government Regulations (committee). See 1973 House Doc. No. 7634. The committee then drafted a new bill, based in substantial part on the commission’s proposed language, that, after various amendments, was passed by the House. See id.', 1973 House Doc. No. 7768; 1973 House J. 3239, 3259, 4688. The Senate enacted the bill after making additional minor amendments, and the House adopted those amendments. See 1973 House J., supra at 3477, 3492, 4688-4689.
The Governor received memoranda from the Department of Public Utilities, the Department of Natural Resources, and the Executive Office of Environmental Affairs offering advice about the final bill. While the Department of Public Utilities offered no objection, the latter two agencies opposed the passage of the *708bill exclusively on environmental grounds. Nevertheless, the Governor signed the final bill into law as G. L. c. 164, §§ 69G-69R. See St. 1973, c. 1232, § l.8
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” (emphasis added), Res. 1971, c. 78, balance the need for sufficient electric energy with “environmental protection, public health and public safety.” Third Report, supra at 24, 41. See First Report, supra at 8 (discussing need for one agency to have power “to resolve the conflicts, such as between the utilities and environmentalists” and stating “[p]ower plant siting is primarily a question of land-use”). 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. See note 4, supra. The silence is deafening.
The only reference in the legislative history of the siting board that might potentially relate to public trust rights cuts against the court’s conclusion that DEP’s expressly delegated authority to administer public trust rights in Commonwealth tidelands can be exercised by the siting board. In its Second Report, issued in December, 1972, the commission suggested that the Legislature pass a resolution that would, among other things, expand the commission’s scope of study to include “the total energy picture in regards to the long-range planning needs of the commonwealth.” Second Report, supra at 9. In July, 1973, four months after the commission issued its Third Report containing the language that in large part became G. L. c. 164, §§ 69G-69R, the Senate added language to amend the resolution proposed by the commission expanding its scope of investigation to include “the total energy picture in Massachusetts except as it relates to offshore energy resources activities and offshore facilities.'’'’ (language added by Senate italicized). Res. 1973, *709c. 110. See 1973 Senate J. 1977; 1973 House J. 2501.9 The resolution was adopted in August, 1973. Res. 1973, c. 110. Various new drafts of the bill that eventually created G. L. c. 164, §§ 69G-69R, were circulated in the following months. See 1973 House Doc. No. 7634 (filed in Oct. 1973); 1973 House Doc. No. 7768 (filed in Nov. 1973).
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 tmst rights. I would reverse on this ground alone.10
B
The siting board’s lack of any authority to act with respect to *710public 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?
The court acknowledges the petitioners’ argument that if the siting board had the authority to administer public trust rights, as a matter of “complying with public trust doctrine obligations,” the siting board had the “duty” to consider the potential effects of the wind farm on the Commonwealth. Ante at 682-683. It then rejects that claim by recharacterizing it as one based on a “general tenet of environmental and perhaps all regulation of private development projects.” Ante at 683. The court makes but a passing reference to the obligations imposed by the public trust doctrine, see ante at 686, and its rationales for approving the siting board’s refusal to consider the impact of the wind farm on Commonwealth tidelands are unpersuasive.11
First, the court reasons that the siting board’s enabling statute states “with unmistakable clarity” that the siting board’s “regulatory point of focus at all times is to be on the proposed ‘facility,’ ” and the proposed transmission lines constitute the only “facility” subject to the siting board’s review in this case. Ante at 683. That may be so, but it says nothing about the responsibilities the siting board must exercise if it is (as the court concludes) wearing DEP’s fiduciary hat. Rather, the court’s reasoning on this point undermines its own rationale for concluding that the siting board has the authority to act with respect to public trust rights in the first place. The court concludes that the siting board may administer public trust rights because it is authorized *711to “stand in the shoes” of DEP. Ante at 678. The Legislature, of course, has charged DEP with the fiduciary responsibility to “protect the interests of the commonwealth” and its inhabitants, in the “tidelands.” G. L. c. 91, § 2. If, as the court would have it, the siting board may act to affect public trust rights because it may stand in DEP’s shoes, then, as the court explicitly acknowledges, see note 5, supra, the siting board has the obligation to act as fiduciary on behalf of the people of the Commonwealth when reviewing the proposal to construct and operate the transmission cables. No fiduciary — whether DEP or the siting board • — • can (or would) fulfil that fiduciary responsibility while turning a blind eye to the in-State impacts of the wind farm.12 To the contrary, consideration of in-State impacts is integral to a determination whether the public trust has been violated.13
Second, moving beyond the siting board’s enabling statute, the court concludes that neither the siting board, nor DEP, nor any other State entity,14 may consider the in-State impacts of the federally located wind farm because to do so would involve the assertion of authority that “presumably” would encompass the “power to deny or condition” a certificate or license “on account of such impacts.” Ante at 685. Such a denial or conditioning, the court reasons, would be “tantamount to the denial of the wind farm project itself,” which the court says no State entity may do. Ante at 685. The reasoning is flawed.
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 *712the 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 cases on which the court relies for its statement that the siting board “does not have authority to do indirectly what it cannot do directly” are inapposite. Ante at 685, citing Ten Taxpayer Citizens Group v. Cape Wind Assoc., LLC, 373 F.3d 183, 197 (1st Cir. 2004), cert, denied, 543 U.S. 1121 (2005) (Ten Taxpayer Citizens), and New England Legal Found, v. Massachusetts Port Auth., 883 F.2d 157, 174 (1st Cir. 1989) (New England Legal Found.). Each involved Federal and State efforts to regulate the same activity (construction of a data tower in Federal water in the Ten Taxpayer Citizens case; control of air traffic in the New England Legal Found, case). Such an overlap is not at issue here: the Federal government has exclusive jurisdiction to provide approvals necessary for the wind farm to be constructed in Federal waters,15 while the State has exclusive jurisdiction to approve the construction of transmission cables through Commonwealth tidelands. See 43 U.S.C. § 1311(a) (2006) (States have “the right and power to manage, administer, lease, develop, and use” “lands *713beneath navigable waters within the boundaries of the respective States ... in accordance with applicable State law”). No one would suggest — or reasonably could suggest — that a private landowner would be “preempted” from denying permission to run transmission cables across its land to serve a facility built by a second private party on adjacent Federal land merely because the second party’s project had won Federal approval.16
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.17
C
The public trust doctrine and government energy policy are *714not 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 pursuant to G. L. c. 164, § 69K, which purports to include the “equivalent” of a G. L. c. 91 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.
For a description of the terms “tidelands” and “Commonwealth tidelands,” see ante at n.25.
I agree with the court’s resolution of the other issues raised by the petitioners.
The Legislature has also expressly delegated certain aspects of its authority and obligations under the public trust doctrine to the Department of Conservation and Recreation (DCR) (see definition of “Department” in G. L. c. 91, § 1), which shall “have charge of the lands, rights in lands, flats, shores and rights in tide waters belonging to the commonwealth .... In carrying out its duties under the provisions of this chapter, [DCR] shall act to preserve and protect the rights in tidelands of the inhabitants of the commonwealth by ensuring that the tidelands are utilized only for water-dependent uses or otherwise serve a proper public purpose.” G. L. c. 91, § 2.
The express delegations to the Department of Environmental Protection (DEP) and DCR in G. L. c. 91 encompass “at least some” of the Commonwealth’s authority and obligations under the public trust doctrine. Moot v. Department of Envtl. Protection, 448 Mass. 340, 347 (2007) (Moot I). See Fafard v. Conservation Comm’n of Barnstable, 432 Mass. 194, 200 n.ll (2000) (Fafard) (“the Commonwealth’s authority and obligations under [G. L. c. 91] are not precisely coextensive with its authority and obligations under the public trust doctrine”).
At oral argument, the assistant Attorney General, as counsel for the Energy Facilities Siting Board (siting board) and DEP, argued that “a delegation of authority by the Legislature to license facilities in tidelands need not refer to the public trust doctrine to be effective,” pointing to dicta in Fafard, supra at 199 n.10. The court makes essentially the same point, ante at 678, but the point proves nothing. Each statute referenced in the Fafard case, unlike the siting board’s enabling statute, expressly authorizes the issuance of licenses for or regulation of certain uses in or on tidewater, tidelands, or tidal flats, thereby making clear the invocation of the public trust doctrine. See G. L. c. 91, § 1 (definition of “tidelands”); G. L. c. 130, § 57 (issuance of shellfish aquaculture licenses by city or town authorizing activities “in, upon, or from a specific portion of coastal waters of the commonwealth, of tidal flats or land under coastal waters”); G. L. c. 130, § 29 (authorization by city or town of construction of weirs, pound nets, and fish traps “in tidewater in locations where no harbor lines exist and also in locations beyond established harbor lines" within limits of city or town “lying upon coastal waters”); G. L. c. 91, § 10A (authorization by “harbormaster” of “the mooring on a temporary basis of floats or rafts held by anchors or bottom moorings” on “private flats” if not “objected to by the owner of owners thereof”).
Without any support in the text of the statute, the court concludes that G. L. c. 164, § 69K (§ 69K), delegates to the siting board not only the power to administer public trust rights in DEP’s stead but also the “obligation” to protect the interests of the Commonwealth and its inhabitants in doing so. Ante at 678-679. The court’s attempt to mitigate the dangerous implications of the precedent it is setting is laudable. But the utter lack of textual support for the court’s conclusion concerning the siting board’s public trust obligations under § 69K only reinforces the error of the court’s conclusion that the Legislature has expressly delegated to the siting board the power to administer public trust rights.
On creating the Electric Power Plant Siting Commission (commission), the Legislature directed the commission to “study the subject matter” of various bills then pending in the House of Representatives. Res. 1971, c. 78. None of those bills made any reference, express or implicit, to tidelands or the public’s rights therein. See id. (summarizing contents of those bills as follows: 1971 House Doc. No. 939, “directing the department of public utilities to promulgate rules regulating certain expenses of certain utility companies”; 1971 House Doc. No. 1131, “establishing the department of public utilities as the responsible planning agency for proper utility service”; 1971 House Doc. No. 1331, “relative to the hazards, inconveniences and service interruptions of overhead electric power transmission”; 1971 House Doc. No. 1515, “to protect municipal park, forest and conservation lands”; 1971 House Doc. No. 2031, “requiring the installation of electric substations underground by electric companies”; 1971 House Doc. No. 3039, “relating to location of thermal power plants”).
1973 House Doc. No. 3662; 1973 House Doc. No. 5290; 1973 Senate Doc. No. 468; 1973 Senate Doc. No. 500.
General Laws c. 164, §§ 69G-69R, have been amended various times since their original enactment in 1973. None of those amendments bears on the analysis here.
According to the House and Senate Journals, the added language was “except as it relates to all offshore energy resources activities and offshore facilities” (emphasis added). 1973 Senate J. 1977; 1973 House J. 2501. As published, Res. 1973, c. 110, does not include the word “all”; the discrepancy is immaterial.
The court notes that DEP participated as an intervener in the § 69K proceeding concerning the Cape Wind, LLC (Cape Wind), project and that the commissioner of DEP sits on the siting board. Ante at n.29. The court also points out that the siting board incorporated DEP’s findings into its certificate decision without DEP’s objection. Ante at n.27. As the court recognizes, ante at n.30, none of these facts is sufficient to constitute the “express” delegation our cases require. Nevertheless, by approving of the certificate issued by the siting board, the court effectively sanctions DEP’s abdication of DEP’s fiduciary duties. Cape Wind and the Attorney General are simply wrong to assert that the siting board did not “usurp" DEP’s role in deciding whether to issue a G. L. c. 91 tidelands license and that the substantive and procedural requirements of G. L. c. 91 have been satisfied. See ante at n.14 (adjudicatory hearing on DEP draft license stayed pending decision in this case).
The Attorney General asserts that the “only question” here is whether the siting board “reasonably construed its enabling act” when it did not review the in-State impacts of the wind farm. To the contrary, the question is whether any State entity, be it the siting board or DEP, could fulfil its fiduciary obligations under the public trust doctrine by approving the construction and operation of the transmission cables without considering the in-State impact of the wind farm.
The court acknowledges that any in-State impact of the wind farm would flow directly from the approval of the transmission cables. See ante at 685.
The court concludes that the siting board’s presiding officer “did not abuse her discretion or commit other error of law” by ruling that evidence concerning in-State impacts of the wind farm was inadmissible. Ante at 686. To the extent that the court defers to the siting board’s interpretations of its obligations under the public trust doctrine, such deference is inappropriate. Cf. Moot v. Department of Envtl. Protection, 448 Mass. 340, 352 (2007) (deference to DEP insufficient to overcome requirements of G. L. c. 91, which derive from public trust doctrine).
As a single narrow exception, the court recognizes the authority of the Massachusetts Office of Coastal Zone Management to “review and comment on Federal permitting decisions” concerning the wind farm itself. Ante at n.35.
To the extent that the court relies on our decision in Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45 (2006) {Alliance I), see ante at 683, 685, & 687, this reliance is misplaced. There, the plaintiff was seeking review of the siting board’s conditional approval for the building and operation of the transmission lines. See Alliance I, supra at 46. The approval was conditioned on the submission by Cape Wind of all of the necessary Federal, State, and local permits for the construction of the wind farm. Id. We were in that case concerned primarily with the siting board’s determination of “need,” as well as the contingent nature of the siting board’s decision. Id. at 50. We noted that “[t]he 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 and this case.” Id. at 48. As the petitioners suggest, that statement, while true, does not address whether the siting board must consider the in-State impacts of the wind farm when considering whether to approve the construction and operation of the transmission cables. It merely indicates that the siting board’s jurisdiction does not extend to the permitting and approval of the wind farm itself. See id. at 53 (“Federal agencies will be making critical decisions about . . . permitting” of wind farm).
The court’s reliance on Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100 (1991), is unavailing. Ante at 683-684. That case did not involve the public trust doctrine or any similar obligation of a State entity to act as a fiduciary on behalf of the people.
The court references the holding of the United States Supreme Court that “control and disposition” of lands beneath the sea “in the first instance are the business of the Federal Government rather than the States,” United States v. Maine, 420 U.S. 515, 522 (1975), and cases cited, and notes that under Federal law the Commonwealth’s claim to title to the three mile margin of seabed off its seacoast derives from the Submerged Lands Act, 43 U.S.C. §§ 1301 et seq. (2006). See ante at 684 & n.33. The source of the Commonwealth’s current authority over Commonwealth tidelands is immaterial to the scope of responsibility that has long been impressed on the Commonwealth under the public trust doctrine to protect the public’s rights in those tidelands. See 43 U.S.C. § 1311(a) (States have “title to and ownership of the lands beneath navigable waters within the boundaries of the respective States” and “the right and power to manage, administer, lease, develop, and use” such lands “in accordance with applicable State law” [emphasis added]). Cf. Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection, 130 S. Ct. 2592, 2597-2598 (2010) (recognizing Florida’s ownership of permanently submerged lands off its coast “in trust for the public”).