A communication transmitted from Louis A. DePasquale, City Manager, relative to an updated response to Calendar Item #9, regarding Gas Infrastructure Ban

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai City Solicitor INSTITVIIS Keplin K. U. Allwaters Arthur J. Goldberg Sean M. McKendry Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Katherine Sarmini Hoffman SamuelA. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 December 11, 2019 Louis A. DePasquale City Manager City of Cambridge 795 Massachusetts Avenue, City Hall Cambridge, Massachusetts 02139 Re: Response to Awaiting Reports No. AR 19-124 (Order No. O-3 of 10/7/19) seeking a Report on the Legal Authority of the City to Ban the Use of Natural Gas in Newly Constructed Buildings and AR 19-133 (Order No. O- 19 of 10/7/19) seeking a Review of Proposed Amendments to the Municipal Code Dear Mr. DePasquale: I write in response to Awaiting Reports Nos. AR 19-124 (Order No. O-3 of October 7, 2019) seeking a report on the legal authority of the City of Cambridge (the "City") to ban the use of natural gas in newly constructed buildings and AR 19-133 (Order No. O-19 of October 7, 2019) seeking a report on the review of proposed amendments to the Municipal Code (the "Proposed Ordinance") prohibiting natural gas in newly constructed buildings, with some exceptions. For the reasons outlined below, I am of the opinion that the City Council may adopt an ordinance prohibiting the use of natural gas infrastructure in newly constructed or partially reconstructed buildings if it submits a Home Rule Petition to the Commonwealth's Legislature seeking special legislation permitting the City to prohibit the installation of natural gas utilities in new construction and such legislation is enacted by the Legislature. Unless a Home Rule Petition is approved by the Legislature of the Commonwealth, under Section 6 of Article 89 of the Commonwealth's Constitution (the "Home Rule Amendment"), any ordinance enacted by the City prohibiting natural gas in new construction would likely be ruled by a court to be invalid as preempted by G. L. c. 164 which is a comprehensive statute regulating the provision of gas and electricity in the Commonwealth, in addition to regulations promulgated thereunder by the Commonwealth's Department of Public Utilities, and further, void as preempted by G. L. c. 143 and State Building Code regulations promulgated thereunder. Facsimile [phone removed] TTY/TTD [phone removed] Telephone [phone removed]

I. LEGAL ANALYSIS. A. Home Rule Powers Under the Massachusetts Constitution The Home Rule Amendment to the Constitution of the Commonwealth provides at Section 6 "Governmental Powers of Cities and Towns" thereof that "any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with the powers reserved to the general court by section 8..." See Art. 89, § 6 of the amendments to the Massachusetts Constitution; see also Bloom v. Worcester, 363 Mass. 136, 145 (1973). Section 8 of the Home Rule Amendment expressly provides that "the general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities or to all towns, or to all cities and towns, or to a class of not fewer than two, and by special laws enacted (1) on petition filed or approved by the voters of a city or town, or the mayor and city council, or other legislative body, of a city, or the town meeting of a town, with respect to a law relating to that city or town..." Art. 89, § 8 of the amendments to the Massachusetts Constitution. B. Preemption by Existing Comprehensive Statutes (G. L. c. 164 and 143) Consistent with the Home Rule Amendment, the Supreme Judicial Court has held that "municipalities may not adopt by-laws or ordinances that are inconsistent with State law. Boston Gas Company v. Newton, 425 Mass. 697, 699 (1997) citing Boston Gas Company v. Somerville, 420 Mass. 702 (1995). "To determine whether a local ordinance is inconsistent with a statute, [the Supreme Judicial Court] has looked to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject." Id. at 704. In some circumstances, the Supreme Judicial Court infers that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute's purpose. Id. citing Somerville, 429 Mass. at 706. The Supreme Judicial Court has stated that the purpose of G. L. c. 164 is to ensure uniform and efficient utility services to the public. Id. In Boston Gas Company v. Newton, the Supreme Judicial Court reviewed whether an ordinance adopted by the City of Newton imposing a monetary cost on public utility companies as a prerequisite to acquiring excavation permits in addition to an inspection and maintenance fees in some circumstances was invalid with respect to maintenance and inspection fees under Section 6 of Article 89 of the Massachusetts Constitution. Newton, 425 Mass at 698. The Supreme Judicial Court ruled that "given the comprehensiveness of the statute [G. L. c. 164] and the remedies provided therein, we conclude that the statute does not permit a municipality to charge the fees in question." Id. at 704-705. The Supreme Judicial Court also stated that "we have long held that a municipality required by statute to participate in a scheme established by statute is entitled to cover reasonable expenses incident to the enforcement of the rules," and thus, ruled that only the portion of the ordinance requiring a fee for processing a permit application was permissible. Id. 706-707 citing Southview Coop. Hous. Corp. v. Rent Control Board of Cambridge, 396 Mass. 395, 400 (1985). Page 2 of 4

In a similar case, Boston Gas Company v. Somerville, the Supreme Judicial Court reviewed the validity of an ordinance enacted by the City of Somerville which required utility companies performing excavation work to hire a city contract representative selected by the City of Somerville to provide services at specified rates, to use certain materials and paving techniques, and to be responsible for the excavation site for three years beyond the final treatment of the site. Somerville, 420 Mass. at 704-705. In that case, the Supreme Judicial Court ruled that "the manufacture and sale of gas and electricity by public utilities is governed by G. L. c. 164" and that "given the comprehensive nature of this statute, we conclude that the Legislature intended to preempt local entities from enacting legislation in this area." Id. citing Boston Edison Company v. Boston, 390 Mass. 772, 774 (1984). The Proposed Ordinance would also likely be held invalid by a court as preempted by the provisions of G. L. c. 143, which is a state statute governing, among other things, the inspection and regulation of all buildings in the Commonwealth and empowers the State Board of Building Regulations and Standards to adopt and administer the Massachusetts State Building Code. See St. George Greek Orthodox Cathedral of Western Massachusetts, Inc. v. Fire department of Springfield, 462 Mass. 120, 121 (2012). Specifically, the Proposed Ordinance would prohibit the issuance of a building permit where natural gas infrastructure appears on the construction plans for any new building or a building being reconstructed with few exceptions. However, G. L. c. 143 and the State Building Code promulgated thereunder regulate the issuance of building permits by municipalities in the Commonwealth. In St. George Greek Orthodox Cathedral of Western Massachusetts, Inc., the Supreme Judicial Court reviewed the validity of an ordinance of the City of Springfield requiring all buildings in that city to utilize a "city approved radio box" under the State Building Code. St. George Greek Orthodox Cathedral of Western Massachusetts, Inc., 462 Mass. 120, 121-122 (2012). In ruling that the Springfield ordinance was invalid, the Supreme Judicial Court reasoned that "the Legislature intended to occupy a field by promulgating comprehensive legislation and delegating further regulation to a State board," "the Board's regulations ... set a Statewide standard as to what products and practices were permissible ...", and "where the Legislature demonstrates its express intention to preempt local action, inconsistent local regulations are invalid under the Home Rule Amendment." Id. at 128-129. The Springfield "ordinance would frustrate the achievement of the stated statutory purpose of having centralized, Statewide standards in this area." Id. at 129. Moreover, the Supreme Judicial Court reasoned that "if all municipalities in the Commonwealth were allowed to enact similarly restrictive ordinances and bylaws [as that enacted by Springfield], a patchwork of building regulations would ensue." Id. at 130. Therefore, in the absence of special legislation as to the City, an ordinance, the effect of which would prohibit the issuance of a building permit where gas infrastructure appears on plans for new construction or reconstruction of a building in most circumstances, would likely be held invalid by the courts as preempted by the provisions of G. L. c. 143 and the State Building Code. II. CONCLUSION For the reasons set forth above, 1 am of the opinion that prior to adopting the Proposed Ordinance, the City Council must first submit, and the State Legislature must pass, special Page 3 of 4

legislation as to the City empowering the City Council to prohibit natural gas infrastructure in newly constructed or reconstructed buildings in the City. If the City Council so desires, we would be happy to prepare a draft Home Rule Petition for the City Council's review and consideration. Very truly yours, City Solicitor Page 4 of 4