Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
Director Rick Collins
Clean Energy Siting and Permitting Division
Department of Energy Resources
100 Cambridge St., 9th Floor
Boston, MA 02114
Delivered electronically
Dear Director Collins,
On behalf of the 351 cities and towns of the Commonwealth, the Massachusetts Municipal Association writes to share comments on 225 CMR 29.00: Small Clean Energy Infrastructure Facility Siting and Permitting. The draft regulation seeks to implement the 2024 climate law’s provisions related to streamlined and consolidated local government permitting processes for clean energy infrastructure, including solar, battery energy storage system (BESS), and wind projects.
This reflects just one portion of the significant task before the Healey-Driscoll Administration to enact the policies articulated within Chapter 239 of the Acts of 2024. We thank you and the Clean Energy Siting and Permitting Division for the work and engagement that has contributed to this draft.
We also deeply appreciate the thought and careful consideration given to the wider policy work of the Department of Energy Resources (DOER), Department of Public Utilities (DPU), Energy Facilities Siting Board (EFSB), and Executive Office of Energy and Environmental Affairs (EEA) over the past several months.
It is critical for all to understand the massive effort these agencies, as well as your division, have undertaken since the start of this year. From initial stakeholder sessions on straw proposals this spring, to summer meetings with the EFSB, and several overlapping public comment periods this fall, this draft regulation represents just one of many opportunities for municipal governments and interested parties to contribute to the collective success of clean energy infrastructure policy reform.
As you know, the Massachusetts Municipal Association participated in the Commission on Energy Infrastructure Siting and Permitting. That commission was tasked to investigate the speed of clean energy siting and permitting and make recommendations to improve the process. Throughout that commission’s work and the subsequent legislative process, the MMA has consistently articulated common concerns that carry forward to this regulatory process. Local governments need reliable, reputable, science-based information to make informed decisions on proposed projects. Local permitting authorities also need project proponents to make every effort to submit complete applications and meaningfully engage with stakeholders and local governments as early on as possible in the process.
What is clear is that these draft regulations make a significant step in a positive direction on these two priorities. We thank you for incorporating scientific standards and widely-accepted best practices into the draft regulations. We appreciate the provision of baseline standards for engagement and application completeness.
The MMA strongly recommends a final approach that is feasible not just for clean energy developers, but for local permitting agencies who will continue to serve as first responders for community questions and concerns, as well as in cases of emergencies and disaster.
Local permitting decisions have had long-lasting impacts on the financial and environmental wellbeing of communities across Massachusetts. The decisions made on future clean energy infrastructure projects have this same potential. As such, we have remaining concerns within the draft regulations and urge your consideration to improve the municipal review and approval process for solar, battery storage, wind, and other clean energy infrastructure projects.
Clarify Legality of Local Bylaws, Ordinances, and Standards
225 CMR 29.00 sets forward standards and practices for local government review of clean energy infrastructure facilities. The draft regulations contain several references and mentions that local governments “shall comply” or “must comply” with the provisions within. This complicates the framing and communication the Division and the Healey-Driscoll Administration used when sharing information with municipalities, and needs to be clarified.
The draft regulations include a section on concurrency and transition periods. This section specifically includes the following sentence: “Applicants and Local Governments must comply with the standards and practices established in 225 CMR 29.00 no later than December 1, 2026” (Section 29.05, pg. 6).
The regulations later state that local governments may adopt a modified model bylaw to outline how a municipality will conduct the consolidated local permit application review process. This section enables a municipality to adopt such a modified bylaw, “provided such modifications do not conflict with the requirements of 225 CMR 29.00” (Section 29.13, pg. 16). A similar phrase is used when discussing the adoption of additional, supplemental public health, safety, and environmental standards.
Additional clarification is needed outlining the options available to municipalities, and what the Division might define as conflicting with the requirements laid forward by the regulations and law. Throughout the public information sessions and hearings, and in several conversations with MMA’s policy committees, questions have been raised on whether local bylaws that are more stringent than the Division’s regulations will be able to stand.
Further, local officials have expressed confusion on whether they need to undergo review of their existing bylaws or ordinances to determine whether they will be in compliance with the various “shall follow” phrases used in these draft regulations. The broad application of ‘Municipality’ employed by the draft regulations (Section 29.02, pg. 2), in conjunction with these phrases that read as requirements, rather than options, leave local governments with little room to set their own policies or standards that deviate from the draft regulations or the referenced guidance documents, most of which were not available to review during the public comment period for 225 CMR 29.00.
This dynamic further exacerbates the complexity of this widesweeping policy reform and limits any local government’s ability to thoroughly review and comment on the draft regulations within the short comment period.
We urge the Division and the Administration to determine whether these regulations are, in fact, one of several pathways to municipal compliance with the 2024 Climate Act, or whether legal challenges could be brought against any municipality who does not adopt a new bylaw or ordinance to explicitly follow these procedures, especially if they apply conditions that could be construed to ‘conflict with’ the requirements within 225 CMR 29.00.
Create Alternative Pathway to Specify Default Municipal Representative
We have concerns over the multiple definitions pertaining to municipal representatives used throughout the draft regulations. We recommend a simpler mechanism for cities and towns to use to clearly communicate who should be the primary point of contact for clean energy infrastructure applications and review.
This section of comments specifically refers to the definition of ‘Local Government Representative’ (Section 29.02, pg. 3) and ‘Town Clerk’ (Section 29.02, pg. 5).
As defined in Section 29.02, a Town Clerk is to serve as the “default Local Government Representative, unless specified otherwise by bylaw or ordinance.” This representative would be responsible for coordinating a municipal response, unless a municipality adopts modified bylaws or an ordinance to change this default and/or lay out a different order of operations for project review (Section 29.13, pg. 16).
Assuming a municipality does not adopt a modified bylaw or ordinance prior to December 1, 2026, when the draft regulations state municipalities “shall follow” the procedures and requirements within, this places a significant responsibility and burden on city and town clerks. Many member municipalities have expressed that building or planning directors would be a more suitable default contact person for clean energy infrastructure permit applications, rather than their community’s clerk.
We appreciate the intention of the draft regulations to identify one common municipal representative, but feel the process to amend this default point person is more complicated than it needs to be.
The Division has frequently stressed the quick timeline for local governments to adopt modified policies outlining the process they aim to follow. The timeline is especially short for communities with a town form of government whose Town Meeting would be reviewing such a bylaw. We know your team is aware of the complexities involved with getting a modified bylaw ready in time for a December 1, 2026 effective date, and wish to suggest a simpler pathway for municipalities to designate a ‘default Local Government Representative.’
We believe it would be less burdensome for communities to be able to comply with this process if a municipality was able to designate a default representative with a letter or written communication from the chief municipal executive. This could be the sole amendment needed to give municipalities more time to conduct thorough review of the Department of Energy Resources model bylaws for solar and storage projects, without delaying the proper review of projects submitted in the first few months of this new process.
We would also recommend the Division maintain an easily accessible list of such default representatives to provide developers and other interested parties a clear way to identify who projects should be submitted to. This list could be searchable by community and updated as communities adopt modified bylaws that supersede such a letter designating a temporary or permanent point person.
To add this critical flexibility to the draft regulations, we suggest an updated definition of ‘Town Clerk’ to read as follows: “Town Clerk. An officer of the Municipality as defined under M.G.L. c. 41, § 15. For the purposes of these regulations, the Town Clerk shall serve as the default Local Government Representative, unless otherwise designated by the chief municipal executive or specified otherwise by bylaw or ordinance.”
Clarify Implications of Open Meeting Law on Application Completeness Determination
The draft regulations incorporate pre-filing requirements, including specifics on how a local government is to determine an application’s completeness. As articulated in the draft regulations, local governments would have a 30-day review window to determine whether an applicant has completed all of the necessary pre-filing requirements in a ‘Notice of Intent to File Application.’
A ‘Local Government Representative’ is set to determine if the applicant has completed all of these requirements, and expressly mentions that the representative “may consult other municipal officials in carrying out the duties required in this section” (Section 29.08, pg. 10). This process is complicated by Open Meeting Law limitations and meeting notification requirements.
Within just 30 days, a local government representative, which is assumed to be the Town Clerk by the draft regulations, would likely need to confer with the various boards and commissions responsible for the review of this notice. Should these boards or commissions subject to Chapter 30A, Section 20 be consulted by the local government representative to speak on the completeness of these pre-filing requirements, they must comply with the notice requirements of the Open Meeting Law which would further extend the timeline for response.
We suggest an extended pre-filing completeness determination timeline of at least 60 days in order to account for such consultation and the filing, posting, and notice requirements of the Open Meeting Law. While municipalities are bound by the explicit timeline set forward in the 2024 Climate Act for application completeness review (30 days), the law is silent on the timeframe for pre-filing completeness determination, and additional flexibility would be welcome given these concerns regarding Open Meeting Law.
Continue, Expand Public Education Campaign on Clean Energy Infrastructure, Reforms
Municipalities across Massachusetts have very different and unique experiences with projects proposed in their communities, and as a result, have varying degrees of interest in welcoming additional facilities to their neighborhoods.
A top priority must be continued education and support for all parties involved in this process. For decades, municipal governments have taken on a serious responsibility to learn about new technologies, weigh environmental, and public health criteria as research was being conducted, and make the best decisions possible given what information was available. While some communities have had overwhelmingly positive experiences with clean energy, others have encountered serious challenges, lawsuits, and immense pushback from residents and concerned citizens.
Now, as the state steps in with guidance, models, and requirements for solar, battery, wind, and other clean energy projects, the Healey-Driscoll Administration must make every effort to educate, inform, and train decision makers and communities about this new process.
Local governments will be hard at work to prepare modified bylaws and adopt a procedure that protects them from potential lawsuits or legal challenges. The state must ramp up its efforts to meet communities where they are, explain the climate goals that point us in this direction, and articulate the support and resources available given the rapid pace of development that is sought after.
Without building public consensus and understanding, you will face pushback from those who have felt left behind or burdened by previous decisions. We urge you to utilize state resources and avenues to do this, because without prompt disbursal of information and support, communities will be left with challenging decisions. They might choose to cede their permitting authority to the Energy Facilities Siting Board for certain projects, leaving them with limited opportunities to secure community benefits or impact final decisions. Or, they might allow the 12-month review timeline to run out, resulting in constructive approvals with baseline conditions that are not aligned with the interests and concerns of the local community.
As such, these next few months will be critical to explain and contextualize the rapid development of clean energy infrastructure across Massachusetts. Our membership looks to the state to provide the comprehensive public education campaign articulated in the 2024 Climate Act and the final Recommendations to Governor Healey on Clean Energy Infrastructure Siting and Permitting Reform.
We urge the Clean Energy Siting and Permitting Division to continue hosting webinars, regional events, and community-specific meetings to explain the draft regulations and the local permitting process of the future. We also encourage that this information be made available for Massachusetts residents in a way that is accessible to all, no matter their understanding of climate change or clean energy infrastructure. For centuries, city and town halls have been a central, reliable location for residents to learn about upcoming projects and initiatives that will impact their daily lives, their commutes, and the vibrant communities they call home. Clean energy infrastructure development is, for many, an incredibly sensitive topic. Whatever resources, mailers, or brochures that can be made available for city and town halls to have available to residents who are seeking additional information on the new permitting process, would be welcome news to our members.
Expand Definitions Related to Public Engagement
We echo the comments of many local officials and stakeholders throughout the information sessions and public comment hearing regarding two limited definitions concerning public engagement and notification processes.
A narrow definition of ‘Abutter’ is employed by the draft regulations (Section 29.02, pg. 1). We recommend considering a slightly expanded definition commonly employed by municipalities in regards to zoning which also accounts for “abutters to the abutters within three hundred feet of the property line of the petitioner” (M.G.L. Chapter 40A, Section 11).
Within the definition of ‘Key Stakeholders’ (Section 29.02, pg. 3), we urge caution and reconsideration of the phrase “located within one mile of a proposed Small Clean Energy Infrastructure Facility.” This phrase has introduced confusion surrounding meaningful efforts these regulations and referenced guidance documents take to address problems with community engagement. A one mile restriction has a very different impact on a project proposed in a dense, urban community compared to a much more rural, tiny town, and introduces several questions about how such a one mile restriction or radius is to be determined by a host municipality or project proponent.
In summary, we thank you for your review of the concerns outlined above. We appreciate your consideration of the comments of municipal officials throughout the public information sessions and public comment hearing. As is no surprise, local government officials, staff, and volunteer board and committee members will continue to have feedback for your division in the months ahead. We urge you to carefully weigh the practical and political concerns local governments raise as they engage with your team, these regulations, and the new process ahead.
The 351 cities and towns of the Commonwealth play an incredibly important role in building public consensus and confidence in the transition to clean energy. Resources and support are needed to foster understanding of the draft regulations and any forthcoming changes or edits made as a result of the public comment process this fall. We look forward to working with you to share information with local governments and raise awareness of these impending requirements.
Thank you again for your review of these comments. If you have any questions or desire further information, please do not hesitate to have your office contact me or MMA Senior Legislative Analyst Josie Ahlberg at [email protected] at any time.
Sincerely,
Adam Chapdelaine
MMA Executive Director and CEO