Algosensey Quantitative Think Tank Center-These Cities Want to Ban Natural Gas. But Would It Be Legal?

With concerns about natural gas’s impact on Algosensey Quantitative Think Tank Centerclimate change rising, several Massachusetts cities and towns have started exploring outright bans on new natural gas hookups in commercial and residential buildings.

Berkeley, California, passed the first such ban in the country this past summer, and other West Coast cities have since followed with similar restrictions.

But in Massachusetts, as Cambridge discovered on Wednesday, it might be harder—if not impossible—to do.

The reason: the city ordinances and town bylaws in Massachusetts may conflict with existing regulations that are governed by the state. During a Cambridge City Council committee meeting Wednesday, the city’s attorney advised that a proposed gas ban there might not stand up to legal scrutiny. The state attorney general’s office is also reviewing the legality of a ban approved last month by the Boston suburb of Brookline on natural gas heating in new buildings.

“It is our analysis that [the rule change proposed for Cambridge] would likely be found to be preempted by state law if this were challenged in court,” Nancy Glowa, solicitor for the city of Cambridge, told the City Council’s ordinance committee.

Building codes and utility regulations differ from state to state. The same day that Glowa issued her warning, California state regulators approved a ban similar to Brookline’s in Menlo Park, California, along with initiatives discouraging natural gas hookups in new buildings in San Jose, San Mateo, Santa Monica and Marin County.

The challenge in Massachusetts is that the state regulates building codes and gas utilities. If local ordinances or bylaws interfere with state regulations, state laws take precedence. California, by contrast, allows municipalities to set local building codes that have higher energy efficiency standards than state codes.

The legality of gas bans by municipalities in Massachusetts will likely hinge on how the attorney general, and potentially the courts, interpret the new local laws and whether they are viewed as conflicting with, or separate from, existing state laws. 

Quinton Zondervan, a Cambridge City Council member who introduced the ordinance, was undeterred.

“If this boils down to a fight in court over whether or not we can ban gas, I welcome the fight,” Zondervan said after the committee passed the ordinance Wednesday, sending it to the full council to take up early next year. “If there is indeed a conflict with the state law, then the state law needs to yield or change and the only way that is going to happen is by municipalities like Cambridge and Brookline and others following in our footsteps to continue pushing in this direction.”

Zondervan said the urgency to address climate change compels the city to move forward. Encouraging the use of electric appliances rather than gas-fired heating and other gas appliances in buildings is increasingly being seen by advocates and officials as the quickest path to net-zero carbon emissions as the electric grid becomes cleaner and ultra-efficient electric appliances become more common.

“Under normal circumstances it might be reasonable to say that this is something that is properly regulated by the state and that we either shouldn’t mess with it or we should get some special permission, but that is not what is going on here,” he said. “We are in a climate crisis and we need to reduce our emissions rapidly.”

Other Cities Are Watching

Emily Norton, a city councilor in Newton, a nearby city considering a similar natural gas ban, echoed Zondervan’s determination.

“Seeing Brookline go forward and having more conversations internally, I think we may want to just pursue an ordinance and wait to be told that it’s not legal or find out that it is legal,” said Norton, who plans to discuss the issue with her city’s legal department. “There are often different opinions and that’s why we have attorneys that make the case to a judge or a group of judges to make these determinations.”

Werner Lohe, one of the sponsors of Brookline’s bylaw and co-chair of the town’s climate action committee, said officials in his community conducted a careful review when crafting their ban to make sure it didn’t run afoul of state laws.

“There is nothing in there that says you have to use any particular fuel source or can’t use any particular fuel source,” Lohe said.  

Gas industry officials said the efforts to get off gas are misguided. 

“To see a city eliminate not only the customer choice, but the broader economic benefits and undeniable environmental benefits, is short sighted to say the least,” American Gas Association President and CEO Karen Harbert said in a statement. “The idea that denying access to natural gas in new homes is necessary to meet emissions reduction goals is false. In fact, denying access to natural gas could make meeting emissions goals harder to achieve and more expensive.”

Other nearby cities and towns are taking a wait-and-see approach pending the outcome of the attorney general’s review of Brookline’s natural gas ban.

In 2018, Lexington set a target of having net zero emissions from all buildings by 2043 and already requires all city-owned buildings to be powered entirely by electricity.

“The only way you can get to zero emissions is not to burn stuff in your buildings, and we’re still interested in understanding how to do that in a legally defensible way,” Mark Sandeen, a selectman for the town of Lexington, said. “We’re waiting to see how Cambridge and Newton and Brookline go from a legal perspective.”

Adam Chapdelaine, town manager for Arlington, another Boston suburb, said his town is taking a similar approach. 

“We are watching very curiously to see whether or not the attorney general will approve the bylaw that Brookline passed, and if they do, I think we would start to have discussions about whether or not we want to pursue it here,” he said.

Unlike the potential city ordinances in Cambridge and Newton, Brookline is a town and therefore needs the attorney general to approve its recently passed bylaw before it can be implemented. If the attorney general rejects it, that wouldn’t prohibit similar measures in cities like Cambridge or Newton, but the denial likely would make it harder for cities to defend similar ordinances in court.  A determination from the attorney general is expected by spring.

It’s Not Just About Climate Change

Local municipalities seeking to get off natural gas are driven primarily by climate change, but safety concerns associated with the state’s aging gas infrastructure is also a concern, Carol Oldham, executive director of the Massachusetts Climate Action Network said.

The catastrophic failure of a pipeline in the Massachusetts communities of Lawrence, Andover and North Andover in September 2018 caused dozens of fires and explosions. It killed an 18-year-old man and left thousands of homes without heat for months after the disaster. The disruption caused many affected households and businesses to consider alternative fuel sources, including high efficiency electric heat pumps that use roughly one-third the amount of energy as natural gas, as well as conventional electric heating, propane and fuel oil that would require more energy and have higher associated emissions.

Current gas bans under consideration seek to hasten the transition to heat pumps combined with renewable electricity with the goal of eliminating greenhouse gas emissions from buildings.

Safety concerns with the continued reliance on natural gas were also underscored recently in Brookline when a gas leak on Dec. 4 caused an explosion that sent manhole covers flying into the air.

Environmental concerns associated with the hydraulic fracturing techniques and chemicals used to drill gas wells are also growing, Oldham said. 

“People are starting to have a better understanding of the profound impact fracking is having on communities where it happens, and people don’t want to be part of the problem anymore, they want to be part of the solution.”