Regulatory Developments, Special Topics in Environmental Management

Massachusetts Climate Law One of Many State Environmental Actions

After months of negotiations between the state legislature and the governor, on March 26, 2021, Massachusetts Governor Charlie Baker signed pioneering bipartisan state climate change legislation into law.

Massachusetts environmental actions

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“The new law, Senate Bill 9 – An Act Creating a Next Generation Roadmap for Massachusetts Climate Policy, establishes new interim goals for emissions reductions, significantly increases protections for Environmental Justice communities across Massachusetts, authorizes the Administration to implement a new, voluntary energy efficient building code for municipalities, and allows the Commonwealth to procure an additional 2,400 Megawatts (MW) of clean, reliable offshore wind energy by 2027,” according to a press release issued by the Commonwealth. “Building upon the framework established in the Administration’s 2050 Decarbonization Roadmap and Clean Energy and Climate Plan for 2030, the bipartisan bill allows the Commonwealth to pursue ambitious emissions reduction goals in a cost-effective and equitable manner while creating jobs and opportunities for economic development throughout Massachusetts.”

What’s in the New Law?

Analysis by East Coast law firm Day Pitney LLP in Lexology shows the Act:

  1. Sets specific greenhouse gas (GHG) emissions limits for Massachusetts, with the gold standard of “at least net zero statewide greenhouse gas emissions; provided, however, that in no event shall the level of emissions in 2050 be higher than a level 85 percent below the 1990 level.” While the Act does not specifically define “net zero,” the term was previously defined by the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) as “a level of statewide greenhouse gas emissions that is equal in quantity to the amount of carbon dioxide or its equivalent that is removed from the atmosphere and stored annually by, or attributable to, the Commonwealth.”
  2. Directs the EEA secretary to devise strategies for achieving reductions in GHG emissions for 2025, 2030, 2035, 2040, 2045, and 2050.
  3. Directs the Department of Environmental Protection (DEP) to engage with stakeholders, conduct public hearings, and propose emissions limits in 5-year increments between 2025 and 2050.
  4. “Sets the interim emissions limits at 50 percent below the 1990 level for 2030, and at 75 percent below the 1990 level for 2040. The Act instructs the secretary to consider all relevant impacts, such as financial, environmental and public health, when creating the specific emissions reduction targets and the road maps to reach achievement…. To achieve the overall goals, the Act directs the DEP to set emissions sub-limits for the following sectors: electric power, transportation, commercial and industrial heating and cooling, residential heating and cooling, industrial processes, and natural gas distribution and service. The Act instructs that these sub-limits are not to exceed, in the aggregate, the statewide GHG emissions limit for the year. The Act then directs the DEP to promulgate regulations regarding all sources or categories of sources that emit GHG in order to achieve the statewide emissions limits and the sector-specific sub-limits,” according to the Day Pitney article. The Act’s final version refers to sector-specific limits as “planning tools,” meaning there are currently no penalties associated with violations.
  5. “Directs each municipal electric department in Massachusetts to establish a GHG emissions standard, with incremental emissions targets for 2030 and 2040, and with the goal of achieving net-zero GHG emissions in energy sales by 2050.”
  6. “[I]ncreases the offshore wind procurement authorization to 4,000 MW, to be procured no later than June 30, 2027.”
  7. “[I]increases the renewable energy portfolio standard for retail electricity suppliers in Massachusetts. Under the Act, retail electricity suppliers must now increase the amount of energy purchased from renewable sources by 3 percent each year from 2025 through 2029.”
  8. “[E]ases eases restrictions on net metering caps by allowing an owner of a new solar project to give transfer credits to customers of any distribution company, and by exempting Class II and Class III net metering facilities with executed Interconnection Service Agreements from distribution company caps if they serve on-site load.”
  9. “[P]romotes co-located solar and energy storage facilities by providing a property tax exemption for such facilities.”
  10. “[S]ets several energy conservation standards and defines new terms for commercial buildings and appliance efficiency. Among its requirements, the Act mandates that technologies such as computers, plumbing fittings and certain types of lamps meet minimum energy-efficiency requirements. The Act also directs the state’s Board of Building Regulations and Standards to consider more stringent energy-efficiency provisions in the state building code. Governor Baker’s amendments require the new code to be phased in.”
  11. “[I]mposes additional requirements and risks on natural gas distribution companies. They must file with the Department of Public Utilities (DPU) plans including a timeline to address aging or leaking natural gas infrastructure in Massachusetts. The DPU is directed to review these plans and ensure that gas companies are on track to meet targets to reduce the leak rate and to replace aging infrastructure in a timely manner. The Act directs the DPU to prioritize ‘safety, security, reliability of service, affordability, equity and reductions in greenhouse gas emissions to meet statewide greenhouse gas emissions limits.’ The Act also increases the amount the DPU can enforce in penalties for failing to adhere to emergency preparedness rules, from $250,000 per day to $500,000 per day and from $20 million total to $50 million total.”
  12. “[C]reates several new programs in the area of environmental justice, which were supplemented by Governor Baker’s amendments.”

In addition, the new legislation establishes new energy-efficiency requirements for commercial kitchen equipment, plumbing, lighting, computers and computer monitors, electric vehicle supply equipment, and consumer appliances, including faucets, residential ventilating fans, portable electric spas, showerheads, toilets, and watercoolers.

The legislation also authorizes the DER to establish a highly efficient stretch energy code for newly constructed buildings by 2023 that municipalities may adopt.

Massachusetts Leadership

“Climate change is an urgent challenge that requires action, and this legislation will reduce emissions in Massachusetts for decades to come while also ensuring the Commonwealth remains economically competitive,” said Baker in a mass.gov press release. “We are proud to have worked closely with the Legislature to produce bipartisan legislation that will advance clean energy sources and secure a healthy, livable environment for future generations.”

“Cities and towns across Massachusetts continue to face increasingly severe impacts from climate change, and the Commonwealth is answering the call for ambitious climate action,” said Lieutenant Governor Karyn Polito. “Our Administration has spearheaded nation-leading efforts to advance the development of clean energy, build resilience in Massachusetts communities, and reduce emissions through groundbreaking programs like the Transportation and Climate Initiative, and this legislation builds on that significant progress.”

Massachusetts claims to be one of the states leading the nation in carbon action, touting its first-in-nation Clean Peak Standard, the Municipal Vulnerability Preparedness (MVP) Program, its recently updated SMART solar program, its participation in the Regional Greenhouse Gas Initiative (RGGI), clean energy procurements, nation-leading energy-efficiency programs, electric vehicle and charging infrastructure incentive programs, and its Clean Energy Standard (CES).

Other State Actions

The Center for American Progress published “States Are Laying a Road Map for Climate Leadership” on April 30, 2020. The gist of the article is that states were forced to take a leadership role on climate change legislation, as the Trump administration took federal climate policy “in precisely the wrong direction.”

At the time of the article’s publication, “15 states and territories [had] taken legislative or executive action to move toward a 100 percent clean energy future.” Those states and territories were:

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Maine
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • Puerto Rico
  • Rhode Island
  • Virginia
  • Washington
  • Wisconsin

The National Conference of State Legislators (NCSL) has created a database that tracks state energy bills. The database allows you to search by topics and states. For example, a search in all states for legislation related to “Climate Change – Energy Reduction” reveals there are a total of 474 bills under this subject in 42 states. The search results allow you to see a summary of information on the bill’s current standing, open the text of the bill, and view its history.

Green USA mapThe Sabin Center for Climate Change Law at Columbia Law School also offers a “Compilation of Databases of State and Local Initiatives on Climate Change, Renewable Energy, and Efficiency,” a helpful resource for tracking both state and local actions.

Current state progress. “Seven states plus Washington, D.C. and Puerto Rico have legislatively committed to 100% clean electricity by 2050 or earlier, while another eight states have a non-binding 100% goal,” according to a World Resources Institute (WRI) article published February 4, 2021. To date, in addition to the states listed above, Illinois, Louisiana, and Oregon have also enacted state climate change legislation, according to the WRI. Massachusetts is the most recent addition to the club.

Vehicle emissions standards. California led the way in stricter vehicle emissions standards. Now, 13 states and the District of Columbia have adopted California’s emissions standards, according to the WRI.

Building decarbonization. “Carbon-neutral buildings … require more than improved efficiency,” the WRI says. “They require appliances [that] run on zero-carbon sources of energy, like electricity generated from solar and wind, rather than on-site gas or oil.”

Air source heat pumps and electric water heaters offer compelling alternatives due to recent technological advances. The WRI notes that California, Maine, and New York are among the states that “have begun to set heat pump installation targets and incentives to provide market signals.” The article also states federal funding is necessary to “enable the widespread adoption of zero-emissions buildings.”

Natural and working land. Forests, wetlands, farms, and natural lands collectively remove “11% of annual U.S. greenhouse gas emissions from the atmosphere already. They have the potential to remove up to 1 billion tons of additional carbon dioxide per year with smart measures to promote conservation, restoration and sustainable land management,” according to the WRI. “In 2018, 17 states joined together through the US Climate Alliance to accept the Natural and Working Lands Challenge, which includes a commitment to integrate land-based carbon removal — through practices like restoring forests, planting cover crops and protecting wetlands — into state climate plans.”

Carbon pricing programs. When a financial price is placed on carbon emissions, investors are signaled that low-carbon technologies are going to pay off, which leads to improved technologies in that sector. Established programs include “California’s Low Carbon Fuel Standard and Oregon’s Clean Fuels Program in the transportation sector, and the Regional Greenhouse Gas Initiative (RGGI) covering power sector emissions in the Northeast.… Last year, Virginia and Pennsylvania moved to become the 11th and 12th states to join RGGI,” according to the WRI. In addition, three Northeastern states and Washington, D.C., have agreed to a cap-and-invest program for the transportation sector through the Transportation and Climate Initiative.

Preferential purchasing programs. The WRI says states can support clean technologies through preferential purchasing programs that include:

  • Purchasing 100% clean electricity
  • Deploying zero-emission public vehicles
  • Supporting advanced low-carbon industrial products, such as concrete and steel

“States including Oregon, Minnesota and Washington are considering policies similar to California’s Buy Clean standard, which requires state agencies to consider the embedded carbon emissions of four construction materials when contracting for public infrastructure projects,” according to the WRI. “A bill in California is seeking to expand the list of products to include cement, while a legislative proposal in New York focuses only on concrete procurement by state agencies. 2021 is likely to see progress in some of these states adopting their own Buy Clean policies.”

Environmental justice. Environmental justice communities (EJCs) are often air pollution hotspots, and many states are directing climate solution investments to these areas. “Virginia’s Clean Economy Act, for instance, includes several equity and environmental justice provisions, including a commitment to invest 50% of the state’s RGGI auction proceeds toward energy efficiency for low-income housing. Michigan established the state’s first Advisory Council for Environmental Justice to ensure that all residents receive equal protection from environmental hazards.”

All these state efforts are expected to be enhanced and improved by federal initiatives under the Biden administration. More states are expected to enact similar legislation over the coming months.