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Mass. gas ban backers press ahead after state strikes down 1st East Coast bylaw

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Mass. gas ban backers press ahead after state strikes down 1st East Coast bylaw

Boston-area lawmakers intend to continue pursuing building electrification ordinances, but they acknowledged their path forward is uncertain after Massachusetts Attorney General Maura Healey struck down the commonwealth's first building gas ban.

Healey's decision undermines the effort to ban natural gas in new construction and renovations in Arlington, Cambridge and Newton — all of which modeled their legislation after the rejected bylaw in neighboring Brookline, Mass.

The finding that state laws preempt the bylaw makes similar legislation highly vulnerable to lawsuits, challenging lawmakers and climate activists to create new strategies and accelerate their plans to pursue change at the state level.

The outcome also has implications for the national building electrification movement. The Boston area emerged as the most active adopter of an ordinance pioneered in Berkeley, Calif., with Brookline passing the first East Coast gas ban in November 2019.

"This situation demonstrates the challenge of exporting these ordinances limiting natural gas use outside of California," said Caitlin McCoy, a staff attorney at Harvard Law School's Environmental and Energy Law Program who has studied the legal dynamics around limiting gas use in buildings.

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McCoy noted that California energy standards afford a clear path for local governments to adopt more stringent standards, such as building electrification requirements, through so-called stretch codes. That framework has allowed dozens of measures to pass in California. Meanwhile, Massachusetts laws do not allow communities to apply higher standards through stretch codes, according to Healey's decision.

Ruling leaves few legal options for adopting gas bans

Among the three other communities actively developing gas ban measures, the clearest impact will be felt in Arlington, Mass. Since Arlington is also a town, it's bylaw amendments are subject to automatic review by the attorney general. Still, Town Manager Adam Chapdelaine said he expects Arlington to continue developing a building electrification warrant article for consideration in its legislative body, known as Town Meeting.

"I think right from the start we had concerns about whether or not the nature of the ban that Brookline passed, and that we were pursing, would cut legal muster," Chapdelaine said. "We now know the way not to do it if we want to be successful, so maybe it will give us time to consider our legal options."

But McCoy sees few if any options for communities like Arlington. In her view, Healey's determination made it clear that local bylaws cannot interfere with statewide standards and established that the Massachusetts Department of Public Utilities has sole authority to regulate gas distribution.

Healey's assertion that the state Board of Building Regulations and Standards has exclusive control over granting building and occupancy permits also leaves local lawmakers without a mechanism to ban gas use in buildings. The Brookline bylaw would have denied a building permit to buildings that include fossil-fuel piping.

"Even if a local government comes up with a new type of permitting scheme, I have a hard time imagining they will avoid the determination that it is an illegal 'additional layer of regulation,' as the [attorney general] characterizes the Brookline bylaw in several places," McCoy said.

Cities consider other options

City ordinances in Cambridge and Newton do not face automatic review, but Cambridge City Councilmember Quinton Zondervan acknowledged that opponents will likely hold the finding against lawmakers in a bid to dissuade them from passing legislation. If they proceed, the ordinances will be subject to a court challenge based on the finding in Brookline, he added.

"I don't think it changes our plan, which is to continue pushing this ban in Cambridge and as many other municipalities as we can in the commonwealth to create the steady drumbeat of pressure to address the state regulations. Because we can't continue to just burn gas. That's just not an acceptable outcome," said Zondervan, who has spearheaded the Cambridge gas ban legislation.

Brookline has the option of appealing Healey's decision to determine whether the courts agree with her office's finding, McCoy said. Arlington, Cambridge and Newton would have the option to join the case, she added.

The towns and cities could also collaborate with state lawmakers to amend the relevant state laws to allow gas bans. California's experience shows that giving local governments leeway to innovate policy can open the door to state policies, according to McCoy.

Newton City Councilmember Emily Norton is skeptical. "I would like to think our legislature would act to change the law so that cities and towns can take this important step to transition away from fossil fuels, but unfortunately their track record in the last few years has been inaction and kowtowing to fracked gas interests," Norton said.

Without state action, Norton believes the only remaining option is to submit a home rule petition — a process of petitioning the state legislature for authority to implement a law not currently granted to local government. While Norton believes Newton should forge ahead with its ordinance, she will also advocate for filing a home rule petition. Newton has already requested a meeting with its state delegation, the first step in the process.

Zondervan does not currently plan to pursue a home rule petition, saying he does not want individual exceptions for towns and cities, but a statewide pathway to building electrification.

Climate activists seek state-level change

The Board of Building Regulations and Standards — the state agency that Healey argued has exclusive control over building permits — is one potential avenue, Zondervan said. The board regularly updates the state building code and could include a stretch code that allows towns and cities to require certain buildings be fossil fuel free. Bay State climate activists are already pushing for a stretch code allowing net-zero building energy requirements.

Brookline and environmental groups have already called for state-level action in light of Healey's decision, in which the attorney general expressed support for the policy of limiting gas use.

"The attorney general's opinion makes clear that the state does have the authority to stop this fracked gas infrastructure if it wants," Massachusetts Sierra Club Chapter Director Deb Pasternak said in a statement. "The fact is that we need an equitable statewide plan here in Massachusetts to close down the fracked gas energy system."

The Sierra Club, along with ratepayer advocates and other climate activists, have recently presented regulators with plans for building electrification proceedings and gas distribution system phase-outs.

Healey herself has petitioned the DPU to open a proceeding to overhaul gas infrastructure planning in Massachusetts, with a goal of aligning the regulatory framework with state climate goals and transitioning away from fossil fuels.

As part of the state's settlement with NiSource Inc. and its subsidiary Columbia Gas of Massachusetts over the Merrimack Valley disaster, Healey committed Eversource Energy to carrying out aspects of her proposed overhaul once it acquires Columbia Gas. That includes outlining decarbonization strategies for its gas distribution business and funding heat pump pilot programs.