February 27, 2020 – Today, the Clinic submitted comments on the first municipal bylaw in Massachusetts to limit the use of natural gas in new and modified buildings. Writing on behalf of Mothers Out Front Massachusetts, the Clinic’s explained that Brookline’s “Prohibition on New Fossil Fuel Infrastructure in Major Construction” (Article 8.39) reflects a traditional exercise of municipal authority that is not preempted.
Municipal limitations, or even prohibitions, on products or commercial activities within their boundaries are not new and have been upheld on multiple previous occasions. Nor is it new for local prohibitions to regulate issues that state statutes also address, at times comprehensively. Such forays into areas that are subject to state laws are permissible unless the strong presumption of validity for local bylaws is overcome. With respect to preemption, a high hurdle must be cleared before finding preemption of a local law; this hurdle is not cleared with respect to Brookline’s Article 8.39 and the Massachusetts G.L. Chapter 164, regarding the manufacture and sale of gas and electricity, or the Massachusetts Building Code.
Clinic students David Costigan (JD’19) and Sebastian Spitz (JD’21) contributed research to the comments under the supervision of Senior Clinical Instructor and Staff Attorney Aladdine Joroff.
Click here to read the comments: Comments in Support of Brookline’s Prohibition on New Fossil Fuel Infrastructure in Major Construction