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Mass. gas bans unlikely to survive legal challenge, solicitors warn

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Mass. gas bans unlikely to survive legal challenge, solicitors warn

Boston-area lawmakers are forging ahead with legislation prohibiting natural gas in new buildings despite legal opinions that the ordinances will probably not survive widely anticipated lawsuits.

City solicitors have warned lawmakers in Cambridge and Newton, Mass., that courts are likely to determine that the gas bans are preempted by state law, which broadly protects consumer access to gas and electric power. In light of the analysis, lawmakers have begun to coalesce around a strategy: advance the legislation and fight the legal battle when it comes.

"Even if we lose, it will be well worth the fight, and it will force the state to grapple with this issue," said Quinton Zondervan, a Cambridge city councilman who introduced gas ban legislation modeled after a pioneering ordinance in Berkeley, Calif.

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The legal analysis illustrated how differences in state law could make gas bans more difficult to pass in Massachusetts than in California, where about two dozen local governments have passed such measures this year. The California Energy Commission issued its first approvals to five of the building electrification codes on Dec. 11.

The same day, Cambridge City Solicitor Nancy Glowa delivered her opinion that local lawmakers likely lack the authority to ban natural gas in new buildings. This is because the state of Massachusetts regulates public utilities and the state's building code governs permits for gas infrastructure inside homes and businesses, according to Glowa. Cities typically cannot interfere with the provision of services when the utilities providing the service are regulated by the state, she explained.

Zondervan's proposal, like a recently passed measure in Brookline, Mass., seeks to work within the scope of state utility law by strictly banning gas hookups inside buildings and not the infrastructure that runs through city property, such as distribution lines.

However, any approach that attempts to restrict a property occupant's ability to use gas would likely run into the same problem of state preemption, Glowa said. The Cambridge City Council Ordinance Committee advanced the legislation to the full council despite Glowa's analysis.

The assistant city solicitor for Newton, Mass., came to a similar conclusion in a memo to city councilors in October. The solicitor, Andrew Lee, said Massachusetts courts "have consistently held that Chapter 164 [of state law] has the effect of preempting municipalities from regulating" the manufacture and sale of gas.

Cambridge and Newton lawmakers could pursue a home rule petition, a process of seeking new, specific authority from state lawmakers. But both Zondervan and his counterparts in Newton have ruled out that option.

One reason is practical — home rule petitions can languish on state lawmakers' desks — but another is strategic. By petitioning the state, Cambridge and Newton would essentially be admitting that they do not have the authority to implement gas bans, said Newton Councilwoman Emily Norton.

"We don't know that we don't have authority, and it may be better that we just go ahead and pass something and then, if someone doesn't like it, they can sue us," Norton said.

The lawmakers fear a home rule petition could undermine the Brookline ban, which passed as an amendment to town bylaws. The Massachusetts attorney general reviews all changes to town bylaws, and supporters do not want to imply Brookline lacked authority to adopt the measure before the office makes its determination.

Zondervan also stressed that gas ban backers could prevail in a court battle. "There is a possibility that the state says, well, there is a climate emergency and municipalities are well within their rights to say we don't want any more gas," he said.