The Push and Pull of Municipal Fossil Fuel Bans in Massachusetts
In 2019, Brookline, Massachusetts became the first municipality outside of California to ban fossil fuels in new construction. The move was part of a growing movement among cities and towns to ban fossil fuel infrastructure, such as hookups for oil or natural gas use, in newly constructed buildings. Fossil fuel bans of this nature typically aim to curb emissions from energy use in buildings, which in many municipalities is the leading source of emissions, through electrification. Electricity use in buildings produces less carbon emissions than burning oil and gas directly and those emissions will continue to decrease as more renewable resources are added to the electricity grid.
Unfortunately for Brookline, the Attorney General’s Municipal Law Unit disapproved of Brookline’s fossil fuel ban in 2020, finding that the ban was preempted by state law. Not easily deterred, Brookline passed a new set of by-laws in 2021. These by-laws were worded differently than the first attempt, framed as requirements for building permits rather than an outright ban. However, these by-laws fared no better than the first ban, and the Attorney General issued a decision in 2022 once again disapproving of the by-law amendments because they were preempted by Chapter 40A (regulating municipal zoning), Chapter 164 (regulating natural gas), and the State Building Code.
Meanwhile, in the time between when Brookline passed its first fossil fuel ban and when the Attorney General issued its decision about the legality of the second ban, dozens of other Massachusetts municipalities became interested in enacting fossil fuel bans of their own. Some of these municipalities submitted home rule petitions to the Massachusetts legislature, asking the legislature to grant their individual municipalities the authority to ban fossil fuel infrastructure on a case-by-case basis. State Representative Tami Gouveia and State Senator Jamie Eldridge of Acton also introduced a bill during the 2021–2022 session that would have granted every municipality in the commonwealth the power to adopt a requirement for all-electric construction without passing and submitting a home rule petition.
The result was a compromise: The legislature passed An Act Driving Clean Energy and Offshore Wind in August of 2022. The law, among other things, authorized a pilot program enabling up to ten cities and towns to adopt and amend ordinances or by-laws to require new building construction or major renovation projects to be fossil fuel-free. The Massachusetts Department of Energy Resources (DOER) was tasked with developing the pilot program and deciding which municipalities would participate. Among requirements for cities and towns seeking to join the pilot program for fossil fuel bans is having a minimum of ten percent affordable housing.
DOER has already received more than ten applications from Massachusetts cities and towns wishing to join the pilot program, but under the draft regulations DOER published in February of this year, municipalities would have to wait until early 2024 at the earliest to implement their bans. This long period for implementation has disturbed members of the legislature who championed and passed the pilot program into law. Senator Michael Barrett, the Senate Chair of the Joint Committee on Telecommunications, Utilities and Energy recently told GBH News that the proposal would “delay the entire process much longer than the Legislature ever imagined.” Pressure from both the legislature and the municipalities seeking to join the pilot program will likely continue to mount as the group of cities and towns now includes the City of Boston, the largest city in the commonwealth. With advocacy groups concerned that the delay combined with limiting the pilot program to ten municipalities will hold the commonwealth back from meeting its goal of reaching net zero carbon emissions by 2050, legislators may be reconsidering the more conservative approach they took by passing the pilot program rather than blanket approval for cities and towns to enact fossil fuel bans.
Opponents and those concerned about the impacts of fossil fuel bans, however, may be heartened by the delay. Governor Charlie Baker considered vetoing the energy bill because of the fossil fuel ban pilot program because of the possibility that banning fossil fuels in new construction might make it more difficult to build affordable housing. In a state experiencing what many characterize as an affordable housing crisis, this concern is not uncommon, the thought process being that if there is inconsistency in requirements for developers between municipalities, developers, especially developers of affordable housing, will prioritize projects in communities with fewer or less expensive requirements. Many of the cities and towns that have already stepped forward to join the pilot program are fairly wealthy and may not be as concerned with the affect of a fossil fuel ban on the costs of housing development.
Yet, there may still be reason for optimism. As an example of what may be possible in a future that includes municipal fossil fuel bans, the Town of Brookline recently approved an affordable housing project that will be powered exclusively by electricity. In addition, Boston Mayor Michelle Wu recently signed an executive order that bans fossil fuel use in new city-owned buildings and in major renovations of municipal buildings. Even without municipal fossil fuel bans in place, some developers, including affordable housing developers, in Massachusetts communities are choosing to build fossil fuel-free.
The future of fossil fuel-free building in Massachusetts is uncertain. The legislature may choose to take a more aggressive approach than it did during the last session, or it may wait to see how DOER’s implementation of the pilot program goes, leaving Massachusetts cities and towns and developers to continue to innovate on their own. States are often called “laboratories of democracy,” but when it comes to issues like climate change, where municipalities acting individually may be able to make a large impact, that label may better suit cities and towns as they try again and again to form creative solutions where their state legislatures fall short.
Hayley Kallfelz graduated with a juris doctor from Boston University School of Law in May 2023.
