Coming soon to Massachusetts cities and towns: all electric buildings

As we’ve discussed before, multiple cities and towns in the Commonwealth of Massachusetts have tried to ban fossil fuel hookups for new buildings by zoning or other ordinance over the past few years.  But in July 2020, the Massachusetts Attorney General’s Municipal Law Unit struck down the first such ban that came across its desk as inconsistent with other state law.  As we noted then, in order for municipalities to restrict or ban fossil fuel connections,

[T]he 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.

It looks like our crystal ball was working!  While last week’s climate bill signed into law by Governor Baker did not impose statewide restrictions, it did provide a pathway for up to ten municipalities to ban fossil fuel hookups through zoning or ordinance, under a demonstration project managed by the Department of Energy Resources.

As the legislature, advocates, and the governor’s office weighed in on the scope of the pilot program, two issues generated significant disagreement:  (1) whether this was the right time to implement the program given that the grid is not yet sourced by mostly zero-carbon energy; and (2) how to ensure the program would not discourage the production of housing, including affordable housing.  Baker had pushed to delay implementation until 50% of the Commonwealth’s annual electricity consumption is generated from clean energy sources, and to exclude multi-family housing (along with hospitals, research laboratories, and health care facilities) from the municipal bans.  In the end, most of Baker’s proposed amendments to the program were rejected by the legislature.  But the final version does include certain protections for housing production, including a requirement that municipalities must meet the state’s 10% affordable housing requirements before they can participate in the program.

So what’s next?  Ten municipalities have already filed home rule petitions to enable them to participate in the program, including Brookline, whose first attempt at a fossil fuel ban was the subject of the Attorney General’s ruling two years ago. Yesterday, Boston’s Mayor Wu announced an intent to join the pilot program.  Although late to the game, Boston may be able to participate if the other municipalities are unable to meet the 10% affordability requirement.  The Department of Energy Resources will make the final determination as to which municipalities may participate and will produce an annual report analyzing impacts on emissions, building costs, operating costs, the number of building permits issued, and other matters.  Stay tuned to see what form these municipal bans end up taking and what impact they have.

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