MA Attorney General Strikes Down Brookline Ban On Fossil Fuels

BROOKLINE, MA — Massachusetts Attorney General Tuesday struck down a Brookline bylaw that would prohibit new construction in town from having oil and gas heating. The Town bylaw — the first of its kind in the state — conflicts with state building and gas codes, she said.

"If we were permitted to base our determination on policy considerations, we would approve the by-law," AG Maura Healey wrote in the decision. "Much of the work of this Office reflects th Attorney General's commitment to reducing greenhouse gas emissions and other dangerous pollution from fossil fuels, in the Commonwealth and beyond. The Brookline by-law is clearly consistent with this policy goal."

The determination impacts Brookline and a number of other communities across Massachusetts that were eying similar environmentally-friendly policies.

With little opposition, Brookline's legislative body of some 211 representatives voted last fall to ban fossil fuels —or oil and gas piping — from most new construction. Only three people voted against the move. The new bylaw would have prohibited the installation of new gas or oil piping in new developments and major building renovations or additions. It would mean developers could no longer install boilers or furnaces that relied on fossil fuels in gut renovations, too.

The bylaw had a number of exemptions, like gas piping for backup electric generators, propane for outdoor heating and cooking, and lines for gas meters and places where commercial cooking is done. Instead of gas or oil, buildings would be required to use electricity for heat and hot water. (The first proposed bylaw included stovetops, but that was reworked after pushback). There was just one catch: The Attorney General's Office needed to verify it didn't violate state or federal law and approve it, as with all local bylaws that the Town Meeting approves.

Brookline and a number of communities saw this as a possible way to enact environmental-friendly policy in their own municipalities.

As Brookline waited for the attorney general to approve it, a number of developers, from those who worked on the Driscoll School renovation to the developer working on the senior care facility on Fisher Hill agreed to build in accordance with the bylaw vision.

But, the attorney general's office said that Brookline's bylaw conflicted with state laws in three ways; First, the state building code, which establishes statewide building construction standards preempts local law. Second, state Gas Code also preempts any locality from imposing requirements that are not in line with the state plumbing board. And third, the Massachusetts Department of Public Utilities, which regulates the sale and distribution of natural gas preempts local law from enacting an ordinance that effectively crimps "uniform" utility services to the public.

The ruling effectively means if you are a developer building by right, you don't have to comply with the vision warrant article.

The Attorney General did, however, seem to leave open the possibility that Brookline's aim could be accomplished another way.

"The Attorney General agrees with the policy goals behind the Town's attempt to reduce the use of fossil fuels within the Town," said Healey in her 17 page decision. "However, the Legislature (and the courts) have made plain that the Town cannot utilize the method it selected to achieve those goals. The Town cannot add an additional layer of reguulation to the comprehensive scope of regulation in the State Building Code, State Gas Code and Chapter 164. This is true no matter how well-intentioned the Town's action, and no matter how strong the Town's belief that its favored option best serves the public health of its residents."

Rep. Tommy Vitolo helped write Brookline’s warrant article 21 and has filed related legislation at the State House, requiring something similar with clean heating and cooling in new state-funded construction.

Vitolo said one path forward is for state legislators like himself, Sen. Cindy Creem, Rep. Mike Moran, Rep. Nike Elugardo and Rep. Ed Coppinger to take up the possibility of amending state law.

"While the ruling itself is a disappointment it presents an opportunity, not just to focus on one town, but on 351 cities and towns in Massachusetts," he said. "That's important."

Vitolo said he hasn't had a chance to meet with his colleagues in the state legislature about something like that, but it's coming.

Vitolo said the work that went into the original warrant article, which was adjusted to accommodate technology restrictions and allow for cook tops can give state policy makers a blueprint.

"I think it's fair to ask all of us to help," he said."When Brookline passed Warrant Article 21, every single Town Meeting Member recognized there's more work to do in Brookline and there's more work to do everywhere outside Brookline... If the State Legislature makes this only legal in Brookline, have we achieved what we wanted to achieve? It does not."

Read the full decision here:

Previously:

Brookline Bans Fossil Fuels (November 2019)

Misconceptions In Brookline's Fossil Free By-Law (Dec. 2019)

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