In a move widely seen as a setback for cities and towns hoping to accelerate their climate efforts, Attorney General Maura Healey on Friday ruled that the Town of Brookline’s efforts to use zoning bylaws to stop fossil fuels in new buildings violated state law.
This is the second time that Healey’s office has ruled against Brookline’s attempts to stop fossil fuels, and the latest stumbling block has climate advocates wondering: If this can’t happen here, in progressive Massachusetts, where a strong climate law is on the books, will it be able to happen at a fast enough pace anywhere to stave off the worst of climate change?
“When you say that local governments aren’t allowed to try these novel but fully lawful approaches to reducing greenhouse gases, you’re not only preventing the local government from responding to the direct needs of their residents but also from perhaps developing a new model for their neighbors to start adopting as well,” said Amy Turner, a senior fellow for the Cities Climate Law Initiative at Columbia University’s Sabin Center.
This years-long effort by Brookline has been watched all over the country, and particularly in Massachusetts, as cities and towns try to step up the pace of climate action on a local level, even as states lag behind.
In Brookline, the decision felt devastating to the town meeting members behind the effort, which had been approved at a Town Meeting in July by a margin of 206 to 6.
“It feels like I’m a child whose parents have gone out of their way not to give me permission to clean my own room,” said Jesse Gray, one of the petitioners behind Brookline’s efforts. “We need to do this to meet the state’s own climate goals, but what they have made abundantly clear is that they are not going to allow any municipality to do this, even though it’s a basic and necessary and urgent climate step.”
The decision from Healey’s office in many ways echoed what the residents of Brookline — and the many other cities and towns hoping to follow in its footsteps — have heard before: that while the office agrees with the principal of what Brookline wants to do, state law won’t allow it.
Noting that her office has “prioritized the state’s transition away from polluting fossil fuels and towards a clean energy future,” Healey said in a statement her hands were tied by state law.
Healey’s office pointed to another process underway — the development of a new opt-in, net-zero building code that could allow for towns like Brookline to functionally ban fossil fuels from new buildings or gut rehabs. The state is obligated by last year’s climate law to enact such a code. But when it unveiled the first draft of that code earlier this month, advocates were dismayed to see that it still allowed for some fossil fuels, albeit with requirements for solar panels and energy efficient building measures.
That code will be the subject of ongoing public meetings and input, and advocates say they hope to see it better aligned with a net-zero by 2050 climate goal. But in the meantime, advocates in Brookline say they feel like they’re running out of options.
“We really don’t have authority in any way to actually control our climate future,” said Lisa Cunningham, another co-petitioner of the Brookline bylaws. “It’s very simple. Our climate crisis is being caused by fossil fuels, and if we can’t even stop building new buildings with fossil fuels, we are heading in the wrong direction.”
Brookline’s efforts have been opposed by several entities, including utilities, the Massachusetts Energy Marketers Association, and the state Department of Public Utilities, which said that the town’s efforts to reduce greenhouse gases were laudable but that “because they restrict the sale of natural gas to new and certain existing customers” they were in direct conflict with state law.
Tamara Small, the chief executive of NAIOP Massachusetts, a lobbyist for developers and building owners, said her organization was pleased with the attorney general’s decision. “While NAIOP supports efforts to reduce carbon emissions, given current technology, natural gas bans are detrimental to the vitality and continued growth of the Commonwealth’s economy,” she said in a statement.
When the town of Brookline first proposed to ban fossil fuels from new development in 2019, towns and cities around the country took note, said Amar Shah, a manager on the Carbon-Free Building Team of the Rocky Mountain Institute, a nonprofit organization of experts across disciplines working to accelerate the clean energy transition.
Until then, the movement had been confined to California, where moderate temperatures made banning fossil fuel heat less daunting. Brookline’s proposal was seen as making a case that even in a cold climate, buildings could go fossil fuel-free.
That effort hit a roadblock with Healey’s 2020 ruling that Brookline’s proposal violated state law. But in the time since, momentum has been building, culminating most recently with New York City passing a bill that phases out fossil fuels in new construction — the first major, cold-climate city in the country to do so. Meanwhile, as the list of Massachusetts towns wanting to ban fossil fuels in new buildings has grown, so far, none has found a pathway to make it happen.
“There is a cost to waiting,” said Shah, who has been coordinating the effort among Massachusetts towns hoping to ban fossil fuels. The more fossil fuel systems that get installed into new buildings, he said, the greater the risk that those buildings will require a costly retrofit down the road, and the greater the dependency of the community on a fuel that must — according to the state’s own law — be phased out in the coming decades.
There are now 30 Massachusetts towns that—like Brookline—have said they want to ban fossil fuels. While Friday’s decision represents a set back for them, a few other avenues remain. Currently, Brookline and four other communities (Acton, Arlington, Concord, and Lexington) have home rule petitions being considered by the legislature, which—if passed—would allow the towns to pass fossil fuel bans for new construction.
“When you’re in a hole, the first thing to do is stop digging,” said state Representative Tommy Vitolo of Brookline. “We must find other policy mechanisms to prevent us from digging ourselves a climate change hole from which we can’t escape.”