AG Rejects Brookline Anti-Fossil Fuel Bylaws For Second Time

BROOKLINE, MA — On Friday, Massachusetts Attorney General Maura Healey struck down bylaws approved by the Town of Brookline that would stop the use of fossil fuels in new buildings.

This is the second time Healey has rejected the town’s efforts to stop fossil fuel use in less than two years. Although the AG’s office agrees with what Brookline is trying to do, she said, it conflicts with state law.

“Our office has prioritized the state’s transition away from polluting fossil fuels and towards a clean energy future,” said Healey in a statement. "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."

The AG’s decision not only impacts Brookline, but also many other communities across the state, including Lexington and Concord, that have been considering similar climate-friendly policies.

Brookline’s efforts began in November 2019, when the town voted to ban fossil fuels, or oil and gas piping, from most new construction or major renovations. However, the bylaw included a number of exceptions, like gas piping for backup electric generators, propane for outdoor heating and cooking, and lines for gas meters for commercial cooking.

However, in June 2020, Healey ruled for the first time that the bylaw went against state laws in three ways. First, the state building code, which establishes statewide building construction standards, preempts local law. Second, state gas code also preempts any locality from imposing requirements that are not in line with the state plumbing board. Third, the Massachusetts Department of Public Utilities, which regulates the sale and distribution of natural gas, preempts local law from enacting an ordinance that effectively crimps "uniform" utility services to the public.

In response, Brookline residents passed two new bylaws last year, one that would have required those seeking special permits go to fossil free immediately or by 2030 and another that would have prohibited fossil fuel infrastructure in a specific zoning district.

Healey determined this week that both new bylaws also conflict with state laws, including the Zoning Act, the State Building Code, and Chapter 164, but did note Gov. Charlie Baker’s proposed revisions to the state building codes, including a new opt-in net zero specialized stretch code.

The code would not allow communities to ban fossil fuel infrastructure, but would allow them to require new buildings using gas to achieve greater energy efficiency by mounting solar panels on the roof and pre-wiring for future electrification.