Mass. kills East Coast natural gas ban

By David Iaconangelo | 07/24/2020 07:20 AM EDT

Massachusetts Attorney General Maura Healey (D) struck down what would have been the East Coast’s first ban on natural gas this week in a victory for fossil fuel groups and other opponents of the regulation.

The office of Massachusetts Attorney General Maura Healey (D) has shot down the first ban on gas heat to be passed outside of California.

The office of Massachusetts Attorney General Maura Healey (D) has shot down the first ban on gas heat to be passed outside of California. Healey/Facebook

Massachusetts Attorney General Maura Healey (D) struck down what would have been the East Coast’s first ban on natural gas this week in a victory for fossil fuel groups and other opponents of the regulation.

The ban, passed last fall in the Boston suburb of Brookline as a town bylaw, would have prohibited new residences from installing gas infrastructure for space heating and hot water.

Inspired by similar legislation in Berkeley, Calif., the bylaw was the first and only gas ban to be approved outside the Golden State. Its backers overcame a last-minute campaign by oil and gas interests, which sent representatives to Brookline town meetings and sought to rally local officials against the measure.


But on Tuesday, Healey concluded that the gas ban conflicts with existing state laws, effectively killing it.

Healey, a staunch anti-fossil fuel crusader, wrote that although her office sympathizes with Brookline’s intentions, the ban is at odds with three state laws.

"The Attorney General agrees with the policy goals behind the Town’s attempt to reduce the use of fossil fuels within the Town," wrote Healey in her decision. "However, the Legislature (and the courts) have made plain that the Town cannot utilize the method it selected to achieve those goals."

Jesse Gray, a Harvard University geneticist and Brookline official who was a lead sponsor of the bylaw, said the town had no plans to appeal the ruling.

"This wasn’t a door being closed gently in one’s face. This was a door being slammed shut — because we’d have to overcome three separate objections," he said.

Gray said local officials would still explore ways to rewrite the ban, or alternative policies that would achieve the same end.

The decision could discourage other Boston-area towns and cities from pursuing their own bans for fear of having them defeated by legal challenges.

"It kills it for any town in the commonwealth," said Gray.

‘A totally different world’

Brookline’s ban had drawn opposition from groups including utilities, labor unions, oil and gas associations, builders, real estate interests and restaurateurs. Critics of the bylaw applauded Healey’s decision.

The Home Builders and Remodelers Association of Massachusetts called it a "major victory" and said it "should discourage cities from adopting similar bans as they would likely fall to a court challenge."

Paul Afonso, a former Massachusetts utilities regulator and senior vice president at the American Petroleum Institute, said that promoting alternatives to natural gas heating "could have dire consequences for senior citizens, working families and low-income communities" across the country.

"Government should not be in the business of denying citizens access to affordable, reliable and clean fuel sources like natural gas," he said.

Jake Rubin, senior director of public relations at the American Gas Association, said gas bans "will not accomplish our shared goal of reducing emissions" and said electrifying space heat and other building operations would result in spiking energy costs.

A spokesperson for National Grid PLC, one of the largest utilities in Massachusetts, lauded Healey’s office for preventing "an inconsistent patchwork of local rules and regulations, many of which would have negatively impacted customer choice, affordability and progress" toward the state’s climate goals. Those include a law calling for an 80% reduction of greenhouse gas emissions below 1990 levels by 2050 as well as a less binding goal, set by Republican Gov. Charlie Baker in January, of net-zero emissions by that same date.

The statements of opposition mirror a national wave of legislation promoted by business chambers, fossil fuel interests and other groups seeking to enshrine the role of natural gas as a fuel source for space heat and appliances.

In the past year, at least four states — Arizona, Louisiana, Oklahoma and Tennessee — have passed legislation that prevents towns from enacting restrictions on natural gas in buildings. Meanwhile, bans have spread across dozens of cities in California, where building codes give municipalities leeway to enforce greater gas restrictions than the state’s own standards. The California Energy Commission is also weighing a requirement for all new buildings to avoid gas infrastructure in favor of electric heat pumps and induction stoves, which do not burn fossil fuels.

In Massachusetts, however, Healey’s office cited the state’s building code in its decision, saying it preempted local rules.

The decision also said that in creating "a new reason to deny a gas permit," Brookline’s bylaw conflicted with the state’s gas code as well as the authority of the utility regulator, which oversees the sale and distribution of natural gas.

Some legal scholars say the fight in Massachusetts could play out in other states outside California, as cities review ways to slash greenhouse gas emissions from what is often their largest urban source: buildings.

"There is clearly momentum in cities and states to require increasingly electric new buildings, but it remains an open question how far this movement will spread," Caitlin McCoy, a staff attorney at Harvard Law School who has researched gas bans nationally, wrote in a June paper.

In an interview earlier this month, McCoy had predicted that the attorney general’s office could shoot down the bylaw, noting that in neighboring Cambridge, the city’s top attorney had already concluded that state law would probably preempt a ban.

"Once you go beyond California, you’re in a totally different world," she said.

‘Now, I’m angry’

Jacob Stern, deputy director at the Massachusetts chapter of the Sierra Club, which had filed a brief in support of Brookline’s ban, said state legislators should respond by altering the building code to give towns more flexibility.

"The simplest answer is to modify the state building code … to give communities the option to adopt a zero-emission building standard," he wrote in an email to E&E News.

The attorney general’s conclusions didn’t come as a shock to Gray, the sponsor of the ban.

"We always knew there was a risk they would make this determination," he said.

But it may surprise other observers, given how Healey’s office has sought to stake out an activist position on fossil fuels. Last year, Healey joined other Democratic attorneys general in suing Exxon Mobil Corp., alleging that the company had misrepresented the risks of climate change to shareholders. This week, Massachusetts filed a lawsuit with 19 other states against the Trump administration for abandoning Obama-era limits on power plant emissions (Greenwire, July 21).

Healey’s office has also requested that the Massachusetts Department of Public Utilities open a wide-ranging review into the future of natural gas in the state, including a look at how utilities could transition their business models away from gas in order to maintain progress toward the 2050 climate goal (Energywire, June 8).

The municipal law unit within Healey’s office was responsible for the decision to scrap Brookline’s ban, said Gray, and based its conclusions on what would hold up in court. "They call balls and strikes. They’re a very professional unit," he said.

But Massachusetts has so far put in place few of the necessary mechanisms to reach its climate goals while shooting down local efforts, Gray added.

"They set big-picture goals without actually putting in place the mechanisms to achieve them," he said. "Right now, I’m angry at the commonwealth of Massachusetts. I’m angry at the governor. I’m angry at the state Legislature."