Healey: All-Electric Construction Requirement Within Limits Of New Law

The ability for a municipality to require all-electric new construction was not among the Baker administration’s proposed state building code changes meant to encourage builders to shift away from fossil fuel heating in favor of electrification, but Attorney General Maura Healey has told the administration that it has the legal authority to propose such a policy.

The administration’s updates to the existing stretch code and its new net-zero specialized stretch code for cities and towns to adopt would hold gas-heated buildings to higher efficiency standards but would not allow cities and towns to eliminate their construction. Sens. Cynthia Creem and Michael Barrett have told the Department of Energy Resources that they think the proposal “comes up short” and Barrett’s office pointed to a handful of towns — Lexington, Concord, Brookline, Arlington and Acton — that want to pursue decarbonization policies beyond what DOER’s proposal would allow.

“The straw proposal bars a city or town from mandating all-electric new construction, even after local officials allow for vigorous analysis and debate. For municipalities in Massachusetts and other progressive states, all-electric construction is the favored strategy for decarbonizing new buildings. Barring communities from employing it would be a significant setback,” the senators wrote to DOER about a month ago.

On the March 18 deadline for public comments, Healey said her office had “filed comments with DOER confirming that it has the authority to create a special opt-in energy code under the Climate Act that will provide municipalities the opportunity to impose all-electric requirements.”

In backing up her position, Healey pointed to her office’s 2020 disapproval of a Brookline bylaw that would have prohibited the issuance of building permits for construction of certain buildings with fossil fuel infrastructure and her office’s February 2022 rejection of two Brookline bylaw amendments that would have regulated buildings based on whether they included “on-site fossil fuel infrastructure.”

“[T]he statutory scheme established by the Climate Act is structured to expressly empower municipalities that choose to do so to opt into a specialized code once promulgated and thus act consistent with state law. While this approach may result in differences in requirements from municipality to municipality, this approach is by express legislative design in the Climate Act and is implemented through a uniform state building code,” Healey wrote. “Further … the AGO specifically noted in the 2022 Brookline Determination that, while the by-law amendments at issue were preempted, ‘the adoption of a municipal opt-in statewide specialized stretch energy code as required by An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy, Section 31 would change this analysis for future by-laws.’”