Massachusetts Attorney General Strikes Down First Municipal Fossil Fuel Ban

Just over a year ago, the city of Berkeley, California, became the first City in the United States to ban natural gas hookups in new buildings.  The trend of municipalities enacting fossil fuel bans, driven by a desire to reduce greenhouse gas emissions and combat climate change, has spread across California and a few other states and has now reached the east coast.  Yesterday, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such municipal fossil fuel ban to come across its desk as inconsistent with the general laws of the Commonwealth.

In November 2019, Brookline, Massachusetts, approved a by-law that would prohibit the installation of oil and gas heating systems in new construction starting in 2021.  The bylaw would require heat, hot water, and appliances installed during new construction and major renovation to be all-electric, with certain exemptions.

The Attorney General found the bylaw to be in direct conflict with three uniform statewide regulatory schemes; the State Building Code; the Gas Code; and the Department of Public Utilities’ powers to comprehensively regulate the sale and distribution of natural gas in the Commonwealth.  (Full disclosure: my colleagues at Foley Hoag prepared a legal memo for submission to the Attorney General’s Office in support of preemption.)  The Attorney General found that both the Building Code and the Gas Code had express statutory goals of uniformity, while there was a fundamental state policy of ensuring uniform utility services to the public under G.L. c.164.  The Attorney General pointed to the example of identical projects proposed in Brookline and a neighboring municipality, each otherwise compliant with zoning and each proposing on-site fossil fuel infrastructure.  The project in the neighboring municipality would be entitled to a building permit, while the project in Brookline would not.

The Attorney General took care to distinguish the legal validity of the by-law from the laudable policy goals it sought to further.

If we were permitted to base our determination on policy considerations, we would approve the by-law. Much of the work of this Office reflects the Attorney General’s commitment to reducing greenhouse gas emissions and other dangerous pollution from fossil fuels, in the Commonwealth and beyond.

So, will this California trend fizzle and fade (like the pet rock) or be with us for the long haul (like blue jeans)?  Other municipalities in Massachusetts, including Cambridge and Newton, have been considering similar actions.  While the Attorney General’s Municipal Law Unit review is applicable only to by-laws enacted by towns (and not ordinances enacted by cities), the Attorney General’s decision would certainly make it harder for cities to defend such ordinances in court.  In Massachusetts, the answer for now seems to be that the legislature must move first.  Don’t be surprised if the next big piece of climate legislation to come out of the Massachusetts State House addresses the issue of municipal authority in this area – if it doesn’t directly impose statewide restrictions.