When Massachusetts passed one of the nation’s most ambitious climate laws in 2021, one thing was clear: If the planet-warming emissions from buildings weren’t slashed quickly, the law’s mandates would be impossible to achieve.
In service to that, the state took two big steps: the launch of a pilot program that would allow 10 communities to ban fossil fuels in new buildings, and the creation of new statewide building codes that didn’t outright ban fossil fuels from new buildings, but made it far more expensive to use them.
The moves were designed to push construction design toward more renewable sources of energy, such as solar and wind, to provide heating, cooling, and other electrical needs for buildings. Currently 35 percent of the state’s climate-warming greenhouse gas emissions come from the building sector.
But even as hundreds of cities and towns are adopting the new building codes and the pilot program is launched, a coalition of groups, including the Northeast Hearth, Patio & Barbecue Association and the Propane Gas Association of New England, is considering a lawsuit to overturn them, according to recordings from recent industry meetings that have been heard by the Globe.
No matter the judicial outcome, a lawsuit could spell trouble for state efforts to slash climate-warming emissions from buildings.
Earlier this year, the nation’s first ban of natural gas in new buildings, in Berkeley, Calif., was repealed after a restaurant association argued successfully in the federal Court of Appeals for the Ninth Circuit that limits on its ability to open new restaurants with gas stoves violated federal law that gives the federal Energy Department sole authority to set energy-efficiency standards for appliances.
Lawsuits followed in New York City and New York state, where fossil fuels were banned in new buildings last year, using the same attorney as the Berkeley case, Sarah Jorgensen of Reichman Jorgensen LLP based in Washington, D.C. At a recent event at a hotel conference room in New England, Leslie Anderson, president of the Propane Gas Association of New England, indicated that Massachusetts could be next.
“We’d like to file in Massachusetts so that we have a case in this circuit,” Anderson said at the meeting, according to an audio recording shared with the Globe.
A Massachusetts case would be part of the bigger picture, she explained, because even if it weren’t successful, having split decisions in different federal court circuits could make it ripe for the Supreme Court to take on the issue of gas bans.
“So should we not be successful, it’s not necessarily a bad thing,” Anderson said at the meeting.
Meanwhile, a coalition of gas companies and their supporters is also working to repeal gas bans across the Western United States, using similar legal arguments to the Berkeley case, according to Bloomberg.
What it adds up to, experts and advocates say, is a deliberate attempt to take away one of the key tools being used by states and cities to address the climate crisis.
“Gas industry interests see this as an existential threat,” said Amy Turner, director of the Cities Climate Law Initiative at Columbia University’s Sabin Center for Climate Change Law. And now, with the Ninth Circuit decision in Berkeley, groups associated with the fossil fuel industry “have essentially created a little cottage industry” of taking the fight to states across the nation.
Anderson, from the propane group, confirmed via email that while no decisions about a potential lawsuit in Massachusetts have been made yet, “we are exploring all of our options.”
Karen Arpino, executive director of the Northeast Hearth, Patio & Barbecue Association, which is one of the plaintiffs in the case in New York state, said in an interview that she has been talking with Jorgensen about the potential for a suit in Massachusetts and that her group “would more than likely participate.”
In the past few years, both groups have made their opposition to banning gas clear via public filings while remaining adamant that they support the state’s climate goals. In an interview and via email, both Arpino and Anderson questioned the state’s approach.
Arpino said the policies are changing faster than technology needed to support a fossil-fuel-free future. “We just want a longer runway.”
Both groups also want fuels like “renewable propane” — made from feedstocks like animal fat and vegetable oil — to be incorporated into climate plans.
But advocates say renewable propane, like many other biofuels, is hard to scale and, while it appears to lower greenhouse gas emissions compared to traditional propane, it does not eliminate them. They also point to reports that have found that in Massachusetts, and across the country, fossil-fuel-free buildings have similar or lower construction costs compared to homes using gas, as well as lower operating costs.
Both Anderson’s and Arpino’s groups represent relatively small cohorts in the region. There are just 75 propane companies in Massachusetts, most of which are small family businesses. Those mom-and-pop companies, as well as the roughly 50 vendors in Arpino’s association, could be in danger if the bans go forward, both argue. But it appears that larger, more powerful organizations may be driving the lawsuits across the country.
While the California Restaurant Association, which brought the suit in Berkeley, has not said who paid the legal expenses for that case, the gas utility SoCalGas reported millions of dollars in payments to the law firm Reichman Jorgensen LLP between 2020 and 2022, around the same time that the lawsuit was being brought. SoCalGas also made more than $700,000 in donations to the restaurant association and its foundation, according to reporting by CityLimits.
And a 2022 tax filing by the American Gas Association, which wrote a brief in support of the California Restaurant Association, reports $171,000 in payments to Reichman Jorgensen LLP for legal services. A spokesperson for the American Gas Association said the payment was not associated with the Berkeley or New York efforts to overturn gas bans. Jorgensen said via email that she could not comment on privileged information.
Now, as a coalition considers whether to bring a lawsuit in Massachusetts, legal experts noted that the state’s new building codes are different from Berkeley’s all-out ban. Fossil fuels can still be used in Massachusetts. And that ultimately could help avoid what happened in the Bay Area.
Massachusetts’ new codes include a revised “stretch code” — one that adds extra efficiency requirements and can be adopted via town meeting or city council — or another optional “specialized code,” that takes things even further. But neither overtly bans the use of fossil fuels.
The state’s codes essentially say, “Your building has to meet this performance standard; you can figure out how to do it,“ said Mark James, associate director of the Institute for Energy and the Environment at Vermont Law and Graduate School. “That’s not subject to the same challenges as the direct ban.”
That’s by design. During the Baker administration, when the codes were developed, the continued use of fossil fuels in the near future wasn’t off the table. The new codes were a way to move the needle forward on energy efficiency, “not an effort to discriminate against one specific type of fuel,” said Patrick Woodcock, who was the state’s energy commissioner when the codes were developed.
In the audio recording from the industry meeting, Anderson acknowledged that fossil fuels are included in the building codes — the result, she said of a fight that lasted “2½ years to get propane and heating oil to get included.” But she said additional requirements such as pre-wiring for electrification and higher home energy-efficiency ratings for builders using fossil fuels tip the scales unfairly toward electrification.
What’s more, residents in Massachusetts broadly support getting fossil fuels out of new buildings. A late March poll conducted by the MassINC Polling Group found that 57 percent of Massachusetts residents support requiring newly constructed buildings to use energy-efficient appliances that don’t use fossil fuels. Just 14 percent of residents opposed such a requirement, according to the poll, which was commissioned by the advocacy groups Rewiring America and Green Energy Consumers Alliance.
Since Massachusetts announced the new building codes, 44 cities and towns have adopted the specialized code and another 257 are using the stretch code, according to the state.
At the industry meeting in the hotel conference room, Anderson said a lawsuit could be filed in the next few months.
Caitlin Peale Sloan, vice president for Massachusetts at the Conservation Law Foundation, said that the lawsuits are disappointing, but that they’re also an expected response to “states getting real about dealing with climate change.”
“It’s like that saying, ‘First they ignore you, then they laugh at you, then they fight you, then you win’ ” she said. “This is the ‘fight you’ stage.”
Sabrina Shankman can be reached at sabrina.shankman@globe.com.