Climate organizers face winding path

Overcoming legal roadblocks, the local decarbonization movement perseveres and expands

December 17, 2020

Brookline made history last November when Town Meeting passed Warrant Article 21 (WA21), only the nation’s second prohibition of gas heating systems in new construction and the first to also apply the ban to significant renovations. It gained the support of climate-focused organizations led by students, such as the Sunrise Movement and the Environmental Action Club, and resident-run groups, like Mothers Out Front. When Town Meeting overwhelmingly approved it (207 to three), it sent ripples across the state and looked to be among the first big steps in Massachusetts to address a climate emergency of increasing importance.
No matter how historic or decisive, the laws passed at a town level must go through the attorney general’s Municipal Law Unit (MLU) to be reviewed and confirmed that they do not conflict with any preempting state or federal laws. In July, after an extended review process, Massachusetts Attorney General Maura Healey ruled that WA21 could not stand, saying it conflicted with state law in several areas and that it was beyond a town’s scope of authority to regulate gas usage in residential and commercial buildings.
In the MLU’s report on the decision, they stated that the by-law was in line with Healey’s own policy decisions aimed at cutting emissions. “However, in carrying out her statutory obligation of by-law review under G.L. c. 40, § 32, the Attorney General is precluded from taking policy issues into account,” the report stated. WA21 was in violation of the State Building Code, the Gas Code and G.L. c 164, which ensures ‘uniform’ access to utilities like gas throughout the state.
One of the petitioners of WA21, Town Meeting member Lisa Cunningham, said in July that it was frustrating to be denied on such technical issues. However, the technicality of that ruling may prove to be key in allowing bills that this year’s Town Meeting has approved. With little opposition, Brookline has passed two new bills in the spirit of last year’s WA21, one requesting explicit permission to enact the gas heating ban in Brookline, and the other calling for a similar ban at a statewide level.
According to Cunningham, this new approach was always somewhere on the agenda.
“The reasoning for the by-law was never just to give Brookline unique electrification powers,” Cunningham said. “It was always to build a movement throughout the state. But somebody had to build that movement.”



Key events in the electrification movement.

Municipal level

From the beginning, the WA21 petitioners were being watched by other municipalities looking to follow Brookline’s lead. But to spread the legislation more quickly, Cunningham and her fellow organizers, Cora Weissbourd of Brookline and Anne Wright of Arlington, partnered with the national climate organization Rocky Mountain Institute (RMI) to form the Building Electrification Acceleration Program (BEAP).
“We’re running these workshops that facilitate peer learning between these different towns and cities and share educational resources, presentations and organizing content, so that different municipalities can learn about building electrification,” Cunningham said.
Currently, 16 Massachusetts municipalities are participating in the program, which Cunningham said has had to pivot since Healy’s July ruling against WA21.
“Up until that point, we were thinking that everybody would follow Brookline and produce their own Warrant Article 21-like legislation,” Cunningham said. “But when that ruling came down, we realized we had to figure out new legal pathways.”
Since the attorney general ruled that state law preempted the bill, the program decided on two new paths of action for all of its municipalities to take: pushing for changes to state law and asking for individual exemptions from it. According to Wright, the push at the state level will be more effective because of the unity of the program’s members.
“We are abiding by and putting our money on the strategy of sending municipal messages to the state legislature that we want to electrify our buildings and we want state help, as opposed to random people just going straight to the legislature,” Wright said. “We’re mobilizing around those values from the municipal level.”
Sunrise Brookline, among the newest of the Sunrise Movement’s many hubs in Massachusetts, has been tracking and organizing around this municipality-based strategy. Sunrise Brookline coordinator Iris Liebman, a sophomore at the high school, said that having to send messages to the state to get action means things are moving slowly.
“Having everything go through the state is a problem especially for environmental regulations,” Liebman said. “The problem [with WA21] was that towns can’t have different building and energy regulations, so to say that towns have that autonomy and they can decide to regulate more would allow us to pass Warrant Article 21.”
Accordingly, the BEAP’s second strategy is to seek municipal authority for gas ban bills. Taking the form of home rule petitions, it has already been employed by both Arlington and Brookline, who passed Warrant Article 39 in the most recent Town Meeting session.
As the petitioners put it, the home rule petition “requests the state legislature to grant Brookline local authority to implement Warrant Article 21,” even though it was deemed outside of the town’s authority upon its initial passage. If approved, Brookline would have unique implementation powers, and no other municipalities could pass similar legislation without a similarly approved home rule petition.
Warrant Article 39 passed on December 3rd by a vote of 214 to three, with four abstentions.
The same petitioners also filed Warrant Article 38, which was a resolution calling on the state to enact a similar gas heating ban statewide. It passed by a vote of 217 to three, with four abstentions. Although Brookline’s voice may reach the state, it is helpful for proponents of this legislation at the State House, like State Representative Tommy Vitolo, to hear from many distinct municipalities in the form of home rule petitions, resolutions and general activism. According to Cunningham, this is part of the importance of the BEAP.
“For people like Tommy Vitolo, this is really important because he can point to it and say that it’s not just Brookline and Arlington that want this, but it’s all these other towns and cities that also want this,” Cunningham said.

State level

Vitolo said that he plans to file a WA21-like bill in the state legislature’s new session in January, working with State Representative Kay Khan and Senator Harriet Chandler.
“The bill is not finalized yet,” Vitolo said. “But the expectation is that the bill will, number one, require state agencies to create a clean heating code, a single set of rules for what we mean when we say clean heating. Number two, require government construction projects, whether federal, state, county or municipal, to abide by that standard. Number three, allow cities and towns to opt into that standard for all construction in their city or town.”
Under this bill, opting into the clean heating standard would be equivalent to passing WA21-like legislation at the municipal level.
For the many students like Liebman that were involved in the WA21 movement last year, the hard work begins at the State House. Liebman said that a lot goes into advocating for bills like Vitolo’s and approval for home rule petitions like Brookline’s.
“It’s going to be an uphill fight in state government, because state government is a lot harder to navigate than Brookline government,” Liebman said. “It takes years to get something passed and there are lots of committees that don’t get anywhere. It’ll be really difficult to actually get these things approved by the state government for them to go into effect. So that’s where, in terms of these warrant articles, we’ll have to put most of our energy.”
However, according to Liebman, the Sunrise Movement’s hubs across the state are preparing to organize collaboratively around WA21-like legislation.
“The Brookline hub is more Brookline focused, but Boston, because it’s so large, has done a ton statewide too. So we’ve been coordinating a bunch with Sunrise Boston,” Liebman said. “Once this makes it out of Brookline and makes it into the State House and becomes something that we’re going to fight for statewide, there’s going to be a lot more coordination about this amongst the different Massachusetts hubs and other organizations.”
According to Wright, this organization is precisely what is needed to prompt real action in the State House.
“It starts from the grassroots up. There has to be big grassroots pressure,” Wright said. “Our state legislature, certainly the feds, the Department of Public Utilities and the utilities themselves will not move until people demand it and do it ourselves.”
Utilities, particularly the natural gas industry, have come out in opposition to the proposed fossil fuel prohibitions. In an email statement, Tom Kiley, the president and CEO of the Northeast Gas Association (based in Needham), said that natural gas has long been a necessary and reliable source of heat and energy in the state, and that flatly prohibiting it would miss the nuance of the issue.
“A ban on fossil fuels and/or natural gas in new construction, such as was proposed in Brookline, while well-intentioned by proponents to address climate change, would remove energy choice from residents and businesses, and would impact energy affordability for all customers,” Kiley wrote. “The natural gas industry in the Commonwealth is working to help support community efforts to more greatly decarbonize the state’s economy, while at the same time working to provide reliable, affordable and lower carbon energy to meet the energy needs of residents and businesses. We think a balanced review of the topic will indicate that natural gas can and should remain a sustaining part of the Commonwealth’s energy future.”
Vitolo said that listening to all those opposed, from big companies to individual residents, is a step that cannot be ignored. But he also noted that according to climate scientists, our back is more or less against the wall.
“To get to net zero by 2050, we need to drive our electric power sector emissions down to zero or very near zero, and we need to drive our transportation emissions down to zero or very near zero,” Vitolo said. “If the power sector is emissions-free and our transportation is all-electric, that gets us maybe 75 percent of what we need, which is not enough. It doesn’t even get us to 80 percent by 2050, which was the standard we were talking about in 2008, when we passed the Global Warming Solutions Act. We have to do buildings.”
Though they know it may be an uphill battle, many climate activists see this legislation as the low hanging fruit. Technology already exists for electric heating, and the shrinking cost differential doesn’t impact energy affordability. According to Cunningham, not only is it easy and cost-effective (even cost-saving, as some studies suggest) to enact this kind of fossil fuel ban, there is no way around doing it soon if we want a carbon-free future.
“Brookline is supposed to be net zero by 2050. So is the state,” Cunningham said. “And we have no other way to reach those goals. Absolutely not, our hands are tied. And this is true in every town and city throughout the state.”

Future policies

To get to zero, all paths must be considered. According to the 2018 Massachusetts Comprehensive Energy Report, the vast majority of our emissions come from three sectors: transportation, buildings and power generation. For zero carbon emissions to be achieved, the first two would need to be electrified and the third would need to generate that electricity using exclusively renewable sources, like the state’s growing offshore wind farms. The legislation currently on the table only begins to address building emissions.
According to sophomore Atlas Noubir, who is on the legislative team of the Environmental Action Club, the next steps towards zero will be much more drastic and the club expects they will call for political changes. The team, he said, has been working on promoting progressive causes both on the ballot and in Town Meeting itself.
“There’s a lot of things we’re looking to do in local town politics, to generally make our Town Meeting and Select Board more progressive. A lot of times we have issues because they don’t tend to support progressive policy,” Noubir said. “Elections aren’t happening for a while yet, but we’re probably going to start trying to get more progressives elected, particularly to the Select Board.”
One piece of legislation that may be particularly difficult without a political shift in Town Meeting is mandating the early replacement of functioning heating systems. If the current legislation, which only electrifies new construction and major renovations, is step one, and electrifying all simple heating system replacements is step two, that final step, according to Vitolo, will be a painful but inevitable one.
“We are going to have to get to step three, which is to say, ‘I know your gas heating system might only be 12 years old and probably has another 10 years left on it. We’re going to help you pay to replace it with an electric system now, because we’ve got to get it done,’” Vitolo said. “Realistically, we’re not going to get to step three soon. But that’s okay. It is an incredibly expensive way to reduce emissions. Let’s do the cheaper stuff first.”
But in the meantime, he said, the current legislation being discussed could give the construction industry a vital opportunity to adjust.
“Not only do you not make the problem worse, but now plumbers, architects, HVAC technicians, engineers and salespeople are working with more heat pumps. The supply chain gets better, people know how to do it, people get comfortable with it,” Vitolo said. “Doing step one primes the pump.”

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  • L

    LisaDec 17, 2020 at 6:40 pm

    Great article, Graham! I would like to refute the comments from Tom Kiley or the Northeast Gas Association, which are propaganda and pulled from the tobacco industry playbook (see Naomi Oreskes “Merchants of Doubt” and the movie with the same title). We shouldn’t have a “choice” to choose climate catastrophe when we have clean and cost-effective, practical and proven all-electric technology. We need to stop digging ourselves into a deeper hole and start electrifying everything immediately. Again, thank you for an excellent article.