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<\/a>Unfortunately for Brookline, the Attorney General\u2019s Municipal Law Unit disapproved of Brookline\u2019s fossil fuel ban in 2020, finding that the ban was preempted by state law.\u00a0 Not easily deterred, Brookline passed a new set of by-laws in 2021.\u00a0 These by-laws were worded differently than the first attempt, framed as requirements for building permits rather than an outright ban.\u00a0 However, these by-laws fared no better than the first ban, and the Attorney General issued a decision<\/a> 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.<\/p>\nMeanwhile, 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.\u00a0 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.\u00a0 State Representative Tami Gouveia and State Senator Jamie Eldridge of Acton also introduced a bill<\/a> during the 2021\u20132022 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.<\/p>\n The result was a compromise: The legislature passed An Act Driving Clean Energy and Offshore Wind<\/a> in August of 2022.\u00a0 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.\u00a0 The Massachusetts Department of Energy Resources (DOER) was tasked with developing the pilot program and deciding which municipalities would participate.\u00a0 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.<\/p>\n DOER has already received more than ten applications from Massachusetts cities and towns wishing to join the pilot program, but under the draft regulations<\/a> DOER published in February of this year, municipalities would have to wait until early 2024 at the earliest to implement their bans.\u00a0 This long period for implementation has disturbed members of the legislature who championed and passed the pilot program into law.\u00a0 Senator Michael Barrett, the Senate Chair of the Joint Committee on Telecommunications, Utilities and Energy recently told GBH News<\/a> that the proposal would \u201cdelay the entire process much longer than the Legislature ever imagined.\u201d\u00a0 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<\/a>, the largest city in the commonwealth.\u00a0 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.<\/p>\n Opponents and those concerned about the impacts of fossil fuel bans, however, may be heartened by the delay.\u00a0 Governor Charlie Baker considered vetoing<\/a> 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.\u00a0 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.\u00a0 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.<\/p>\n The future of fossil fuel-free building in Massachusetts is uncertain.\u00a0 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\u2019s implementation of the pilot program goes, leaving Massachusetts cities and towns and developers to continue to innovate on their own.\u00a0 States are often called \u201claboratories of democracy,\u201d 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.<\/p>\n![\"\"](\"\/dome\/files\/2023\/08\/images-1.jpg\")
<\/a>Yet, there may still be reason for optimism.\u00a0 As an example of what may be possible in a future that includes municipal fossil fuel bans, the Town of Brookline recently approved<\/a> an affordable housing project that will be powered exclusively by electricity.\u00a0 In addition, Boston Mayor Michelle Wu recently signed an executive order<\/a> that bans fossil fuel use in new city-owned buildings and in major renovations of municipal buildings.\u00a0 <\/span>Even without municipal fossil fuel bans in place, some developers, including affordable housing developers, in Massachusetts communities are choosing to build fossil fuel-free.<\/p>\n
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<\/a>Hayley Kallfelz<\/strong> graduated with a juris doctor<\/em> from Boston University School of Law in May 2023.<\/p>\n","protected":false},"excerpt":{"rendered":"