For the second time, Massachusetts Attorney General Maura Healey struck down an attempt to restrict the use of natural gas in new buildings in Brookline, Mass.

Healey's disapproval of a pair of Brookline bylaws marked the latest setback in a 2.5-year campaign by grassroots activists, local leaders and environmental groups to require all-electric construction in Bay State towns and cities. It cut off a legal pathway for a growing number of local governments seeking authority to reduce emissions through building electrification mandates.

Healey, who is running for governor as a Democrat, said the Brookline bylaw is consistent with the attorney generals office's goal of transitioning from fossil fuels to cleaner energy. However, the bylaw review process requires that Healey determine whether a bylaw conflicts with the state's laws and constitution, regardless of Healey's policy views, the attorney general said.

"Although the law requires us to disapprove local initiatives inconsistent with our current state statutes, we will continue to lead efforts in Massachusetts and nationally to protect ratepayers and the environment, make our buildings more efficient, and work alongside our communities to reduce the threat of climate change," Healey said in an email.

ZeroCarbonMA co-founder Jesse Gray said activists remain ready to work with state leaders to aggressively electrify the state's buildings but expressed disappointment in the decision.

"It's deeply unfortunate that one of the bluest states is actively preventing its towns and cities from taking the most basic and necessary steps to address our climate crisis," Gray, who developed Brookline's gas ban legislation, said in a news release.

State law, building code once again preempt Brookline bylaws

Brookline modeled its initial 2019 bylaw, Warrant Article 21, after a pioneering building gas ban in Berkeley, Calif. In July 2020, Healey disapproved Warrant Article 21 because it conflicted with the state building code as well as a law establishing the Department of Public Utilities' authority over gas sales and distribution. That law, Chapter 164, says a town cannot pass legislation that interferes with the state's policy of ensuring "uniform and efficient utility services to the public."

Brookline sought to work within Healey's guidance in the 2020 disapproval letter by passing Article 26 in June 2021. The bylaw placed conditions on special building permits, needed for many construction projects, if the project included fossil fuel infrastructure. A second bylaw, Article 25, imposed similar conditions on development in the town's Emerald Island Special District.

In the Feb. 25 ruling, Healey once again found that the bylaws violated the building code and Chapter 164. Additionally, the bylaws unlawfully regulate the use of building materials or construction methods in buildings regulated by the state, Healey found. Article 26 also violated Massachusetts' Zoning Act by requiring local authorities to act on a special permit application based on whether the proposed building contains fossil fuel piping, rather than how the building will be used, Healey concluded.

Several pathways to building electrification

On Feb. 14, Healey urged the Department of Public Utilities to ensure its review of gas utilities' future role in Massachusetts moves the state expeditiously toward clean energy. In the Feb. 25 disapproval letter, Healey pointed to several pathways to achieve building electrification ambitions.

In January, Massachusetts launched the Commission on Clean Heat. The commission will develop policies to help the state achieve limits on greenhouse gas emissions associated with building heating, as mandated in the state's 2021 climate policy road map legislation.

Healey further noted that Republican Gov. Charlie Baker's administration released its proposal for a new voluntary stretch building energy code required by the 2021 climate law. However, building electrification backers have expressed disappointment in the code option because it does not expressly grant local governments authority to ban gas in new buildings.

Lastly, Healey pointed to several pieces of legislation that would grant towns and cities that very authority. State lawmakers have kept the bills in play, warning the Baker administration that lawmakers will put them to a vote if the opt-in stretch code disappoints them.

ZeroCarbonMA co-founder Lisa Cunningham said it is time to advance that legislation. "So far, the state Legislature is just using us as a bargaining chip, so I think they ought to stop with the bargaining chip and actually let these communities lead," Cunningham, who also co-facilitates RMI's Massachusetts Building Electrification Accelerator program, said in a recent interview.