Chapter 7.5
Energy Conservation and Efficiency

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Prohibit Fossil Fuel Infrastructure

INTRODUCTION

Fossil fuel infrastructure helps produce a majority of the energy in the United States,[1] but with significant social and environmental costs. Depending on the infrastructure and product, byproducts can include petroleum coke, manganese, and other harmful pollutants. Fossil fuel infrastructure has been shown to increase the risk of respiratory illness,[2] heart arrhythmias,[3] cancer,[4] birth defects,[5] and infant death in surrounding or downstream communities.[6] And, of course, it facilitates the burning of fossil fuels, resulting in greenhouse gas emissions.

These environmental and health risks overburden communities living in proximity to the infrastructure, while the benefits are spread across consumers largely living elsewhere without the risks. People of color are disproportionately exposed to the harms of fossil fuel infrastructure because the infrastructure has tended to be located in proximity to communities of color.[7] The environmental organization Clean Air Task Force demonstrated in a 2016 report that in the United States “‘the air in many Latino communities violates air quality standards intended to protect human health’ and Latino children are more likely to die from an asthma attack than white children.”[8] In part due to fossil fuel infrastructure, Black children are “79% more likely to live in neighborhoods where industrial pollution is suspected of posing the greatest health danger.”[9]

Environmental justice seeks to ameliorate disproportionate impacts on communities of color, by “mandat[ing] the right to ethical, balanced, and responsible uses of land and renewable resources in the interest of a sustainable planet for humans and other living things.”[10] A core pillar of this movement is to empower communities overburdened by environmental harms. The environmental justice movement began in the 1980s and has steadily gained momentum in the United States. [11]

Historically, communities exposed to the impacts of fossil fuel infrastructure have had little recourse.[12] Early zoning laws were used to segregate Black communities and subject low-income communities and communities of color to environmental hazards.[13]  However, an increasing number of municipalities are now leveraging the same tools to protect these communities, by prohibiting or limiting fossil fuel infrastructure through zoning and land use laws.

Thus far, local governments across the country have banned crude oil terminals (Baltimore MD), the storage of crude oil by-products (Chicago, IL),  hydraulic fracturing (Dryden, NY) and tar sands pipelines (South Portland, ME) all of which are discussed further in the Examples section. Governments have also used local laws to decrease dependence on natural gas, with varying degrees of success.

Differences in state law will affect a local government’s ability to prohibit fossil fuel infrastructure. Each local government should tailor zoning amendments to the requirements of state and ,[14] and, as described below, the amendment should state in clear terms that it does not attempt to regulate industry. In anticipation of litigation, drafters should imbed clear “land use” language into ordinances.

EFFECTS

Improved Health of Community

The effects of exposure to fossil fuel infrastructure are numerous and vary depending on the type of infrastructure. Baltimore, for instance, where the concentration of fossil fuel infrastructure contributes to dangerous air quality levels, has the highest death rate from air pollution of any American city.[15] Crude oil terminals in Baltimore not only contribute to air pollution, but also create a significant safety risk in the event of an explosion. Approximately 165,000 Baltimore residents live within a “blast zone” of crude oil infrastructure.[17]

A clear benefit of enacting an outright ban of crude oil infrastructure is the reduction in local pollution and the removal of safety risks from “blast zones.” If a local government is able to prohibit infrastructure before it arrives, [18] residents can avoid the construction of fossil fuel infrastructure and the associated environmental and health impacts.

Litigation

Another likely effect of using zoning laws to ban fossil fuel infrastructure is litigation, due to the tension of implied and, at times, express preemption between state and municipal law and/or lawmakers. Typically, state laws regulate private fossil fuel entities through a variety of mechanisms including energy and environmental regulations.[19] States typically delegate authority to municipalities to regulate land use through zoning ordinances and comprehensive plans.[20] However, sometimes states will also pass laws specifically banning local governments from enacting fossil fuel infrastructure restrictions. If a zoning law appears to directly regulate a fossil fuel company, it may be explicitly or implicitly preempted by state law.[21] An alternative course of action for a local government is to limit or prohibit infrastructure restricting local authority to delegated zoning or police powers.

The litigation surrounding hydrofracking bans in Dryden, NY began in 2012. Anschutz Exploration Corporation (“Anschutz”) sued the Town of Dryden, claiming that the Town’s zoning amendment ban of hydrofracking was invalid.[22] Anschutz owned gas leases covering over 22,000 acres of the town, which it obtained before the ordinance was enacted.[23] Anschutz claimed that the zoning amendment was preempted by New York’s Oil, Gas and Solution Mining Laws (OGSML). The New York Supreme Court of Tompkins County ruled in favor of the Town of Dryden, holding that “OGSML does not preempt a municipality's authority—through the exercise of its zoning power—to completely ban operations related to oil and gas production within its borders.”[24] The Appellate Division affirmed the ruling,[25] as did the Court of Appeals, securing victory for the Dryden community.[26]

The Pennsylvania Supreme Court similarly held that its Oil and Gas Act does not preempt local ordinances, as long as they do not regulate operations.[27] A zoning law can prohibit hydrofracking as a land use,[28] but cannot regulate hydrofracking by, for instance, imposing permits. [29] The latter is preempted by state law.

Local governments across the U.S. are also attempting to phase-out fossil fuel dependence through limiting or prohibiting the inclusion of fossil fuel infrastructure in new construction. This end-user exclusion has been attempted by both east- and west-coast local governments. However, litigation issues may arise if local governments attempt to do so through building codes. In Berkley, CA, voters passed a natural gas piping ban in new construction. The municipality soon faced opposition, with opponents claiming the federal Energy Policy and Conservation Act (EPCA) preempted the ordinance. The District court dismissed the claim, holding that the regulation was not preempted.[30] The Ninth Circuit Court of Appeals reversed, holding that “the EPCA preempts building codes, like Berkley’s ordinance, that function as ‘energy use’ regulations.”[31] On the east coast, the Town of Brookline, MA passed Prohibition on New Fossil Fuel Infrastructure in Major Construction to prohibit natural gas infrastructure in new buildings.[32] Brookline attempted to pass the Ordinance with careful construction that would not supersede state building codes, but instead “break new ground.”[33] However, the Ordinance established a permitting process for the construction of new buildings.[34]  Then-Attorney General Maura Healey objected, stating that the Massachusetts’s Department of Public Utilities “comprehensively regulates” natural gas in the state.[35] Despite the fact that the bylaw aligned with Brookline’s ambition to reach net zero carbon emissions by 2050[36] and Massachusetts’s broader emissions reduction goals,[37] she wrote that the bylaw was preempted by state law.[38] Several Massachusetts towns banded together in response, and pushed for a statewide electrification mandate.[39] In 2022, outgoing Governor Charlie Baker signed a climate bill into law that, among other measures, allows local communities to ban new natural gas-hookups through the creation of the “Municipal Fossil Fuel Free Building Construction and Renovation Demonstration Project.”[40] As of January of 2023, 10 municipalities enrolled in the program.[41]

South Portland in Maine has had success in banning fossil fuel infrastructure through local ordinance. In 2014, residents of South Portland, Maine passed the Clear Skies Ordinance to prohibit the “[b]ulk loading of crude oil onto any marine vessel.”[42] The ordinance was enacted in response to the Portland Pipe Line Corporation's plan to construct a crude oil pipeline to transport oil from Canada. The oil was to be loaded onto tankers in South Portland.[43] After extensive litigation as to whether the ordinance is preempted by state law, in 2020 the Supreme Judicial Court of Maine upheld the ordinance.[44] The South Portland example furthers the importance of enacting “land use” ordinances, which fit squarely within municipalities’ traditionally delegated police powers, rather than “energy use” regulations, which are typically left to states.

EXAMPLES

Baltimore, MD

In 2014, residents of Curtis Bay, South Baltimore, organized in response to a proposal by Tanga Terminals for a new crude oil terminal.[45] After years of tireless campaigning, Tanga Terminals finally withdrew its proposal in 2016. Following this victory, the coalition of residents, along with Clean Water Action, pushed the City to prohibit fossil fuel infrastructure altogether.[46] Ordinance 18.110, passed in March of 2018, bans new or expanded crude oil terminals in Baltimore.[47] The ordinance repeals and amends city code Article 32 - Zoning Section(s) 1-218, and adds Article 32 - Zoning Section(s) 1- 304(v-1), and is the first of its kind on the East Coast.[48]

To view the provision, see Baltimore, MD, Baltimore City Code, Article 32 §§1-218, 1-304 .

Chicago, IL

Petroleum coke, or “petcoke” is a byproduct of crude oil refinery.[49] Exposed piles of petcoke have been a devastating environmental harm in Chicago for some time, particularly for residents of the Southeast Side of Chicago where the industry is concentrated.[50] Chicago has banned two fossil fuel related compounds within any zoning district of the City. Passed in 2014, Ordinance 17-9-0117-B prohibits Coke & Coal Bulk Material Uses, by banning the “storage, placement, retention, loading, unloading, stockpiling, or processing” of coke and coal bulk material in any zoning district.[51] The ordinance exempts material used in cement manufacturing whose permit was obtained prior to enactment.[52]

To view the provision, see Chicago, IL, Zoning Ordinance and Land Use Ordinance §17-9-0117-B.

Passed in 2018, Ordinance 17-9-0117-D similarly prohibits all Manganese-bearing Material Operation Uses from the city of Chicago. The ordinance bans all processing of magnesium bearing material, including the “storing, loading, unloading, stockpiling, handling on-site, blending, mixing, crushing, screening, breaking, wet or dry cleaning, thermal drying, [or] chemically treating” of magnesium bearing material.[53] Manganese is a byproduct of steel production, and is largely produced outside the City and shipped to Chicago for storage.[54] Similarly to coal and petcoke, manganese dust poses serious health threats to nearby residents.[55]

To view the provision, see Chicago, IL, Zoning Ordinance and Land Use Ordinance, § 17-9-0117-D.

Dryden, NY

Discussed above, Dryden is one of many New York towns that have used local zoning laws to prohibit hydraulic fracturing.[56] In 2009, Dryden residents formed the Dryden Resource Awareness Coalition (DRAC) to organize against oil and gas leases throughout the town.[57] In 2011, DRAC convinced the town board to amend Dryden’s zoning ordinance to ban fracking within the town’s borders.[58] Industry challenged the validity of the amendment, but in 2014 New York’s highest court upheld the zoning amendment.[59]

To view the provision, see Dryden, NY, Town of Dryden Zoning Law, § 502 .

South Portland, ME

The “Clear Skies” Ordinance, passed in 2014 and upheld by the courts in 2020, prohibits the bulk loading of crude oil onto marine tank vessels within the City. It was passed in response to a proposal to construct a tar sands export terminal in Casco Bay, Maine and is discussed more above..

To view the provision, see South Portland, ME, South Portland Code of Ordinances, § 27-786 .

ADDITIONAL EXAMPLES

South Portland, ME, South Portland Code, Ordinance #1-14/15 (banning the bulk loading of crude oil onto any marine tank vessel).

Portland, OR, Charter Code and Policies, §BCP-ENN-10.01 (opposing all oil-by-rail transportation within Portland and Vancouver WA).

Portland, OR, Charter Code and Policies, §BCP-ENN-10.02 (opposing the expansion of storage and transportation fossil fuel infrastructure).

San Jose, CA, San Jose Municipal Code, §17.845 (banning natural gas infrastructure through municipal police ).