SENATE DOCKET, NO. 2203        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 79

The Commonwealth of Massachusetts

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PRESENTED BY:

Nick Collins

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act promoting sustainable development across the Commonwealth.

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PETITION OF:

SENATE DOCKET, NO. 2203        FILED ON: 1/18/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 79

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act promoting sustainable development across the Commonwealth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  The General Laws are hereby amended by inserting after chapter 21O the following chapter:-

CHAPTER 21P.

CLIMATE RISK AND FISCAL RESPONSIBILITY

Section 1. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Adaptation”, a response and process of adjustment to actual or expected climate change and its effects that seeks to reduce the vulnerability, and increase capacity to recover rapidly of the commonwealth’s built and natural environments and seeks to moderate or avoid harm or exploit beneficial opportunities to reduce the safety and health risks that vulnerable human populations and resources may encounter due to climate change.

“Adaptation measures,” location, design, engineering, construction, landscaping or other creation or modification of natural or non-structural features, ecological design, and other elements of a structure, operation, system, activity, or process that (a) eliminate or reduce loss, damage, or interruption of function due to climate risk, or (b) facilitate rapid restoration or recovery following loss, damage, or interruption of function due to climate risk.  

“Climate risks”, the reasonably foreseeable risks to the economy, public services and infrastructure, and public health and safety based on best available data and current science, that are attributable to current and reasonably foreseeable climate conditions, including but not limited to changes in sea level, storm frequency or intensity, drought, wind, extreme precipitation, and extreme temperature changes projected to occur as a result of climate change.

"Electric power company'', as defined in section 1 of chapter 164 of the General Laws.

"Natural gas company'', as defined in section 1 of chapter 164 of the General Laws.

''Regulation'' includes the whole or any part of every rule, regulation, standard or other requirement of general application and future effect, including the amendment or repeal thereof, adopted by an agency to implement or interpret the law enforced or administered by it, but does not include (a) regulations concerning only the internal management or discipline of the adopting agency or any other agency, and not substantially affecting the rights of or the procedures available to the public or that portion of the public affected by the agency's activities; or (b) decisions issued in adjudicatory proceedings.

''Secretary'', the officer in charge of each executive office established by chapter 6A or chapter 7 and the supreme judicial court.

“State agency”, a legal entity of state government established by the legislature as an agency, board, bureau, department, office or division of the commonwealth with a specific mission that may either report to an executive office or secretariat or be independent division or department.

“State authority”, a body politic and corporate constituted as a public instrumentality of the commonwealth and established by an act of the legislature to serve an essential governmental function; provided, however, that “state authority” shall include energy generation and transmission, solid waste, drinking water, wastewater and stormwater and telecommunication utilities serving areas identified by the executive office as subject to material risk of flooding; provided further, that unless designated as such by the secretary of energy and environmental affairs, “state authority” shall not include: (i) a state agency; (ii) a city or town; (iii) a body controlled by a city or town; or (iv) a separate body politic for which the governing body is elected, in whole or in part, by the general public or by representatives of member cities or towns

“Steam distribution company”, as defined in Section 1 of chapter 164 of the General Laws.

“Water Companies”, every person, partnership, association or corporation, other than a municipal corporation, and other than a landlord supplying his tenant, engaged in the distribution and sale of water in the commonwealth through its pipes or mains.

Section 2. (a) The secretary of the executive office and energy and environmental affairs, in every application for a permit, authorization, certification, approval, grant, loan, or other financing within the oversight of the secretary, including every environmental impact report including draft and final environmental impact reports pursuant to section sixty one of chapter thirty (i) shall require disclosure of climate risk relevant to the application and require the applicant identify the assumptions, analysis, modeling or projections on which the disclosure is based; (ii) may require, as a condition of approval, any adaptation measures that the applicant or the Secretary identifies as reasonable and appropriate; and (iii) may deny as incomplete any application, DEIR or EIR as to which the Secretary determines that either the climate risk disclosure or adaptation measures are insufficient, including, without limitation, applications for a permit or certification or license application pursuant to section forty three of chapter twenty one, section sixteen of chapter twenty one d, section seven of chapter twenty one g, and section sixty two d of chapter thirty that does not reasonably identify and address such risks.

(b) The secretary of the executive office of energy and environmental affairs shall adopt, in consultation and concurrence with the executive office of public safety and security and other affected state agencies and departments, a climate projections dataset based on the best available climate data using reasonably likely scenarios, to be uniformly applied when considering climate risks pursuant to section sixty-one of chapter thirty.  Prior to adopting a climate projections dataset, the secretary shall provide public notice and comment in accordance with section three of chapter 30A. The secretary shall review and, as necessary, revise the adopted dataset at least every five years to ensure that it reflects the best available climate data.

Section 3. Applicants for state grants, loans, or other funding or financing including, without limitation, tax credit allocations for construction, development, redevelopment, and new or expanded capital infrastructure projects shall (a) demonstrate to the relevant agency or authority that the planning, design, engineering and specifications for the project include adaptation measures sufficient to address climate risks that will arise over the economic life of the project or the term of financing, whichever is longer; and (b) disclose in all design engineering, architectural, or other drawings and analyses the climate assumptions used in evaluating and addressing climate risks.

Section 4. Requests for proposals for state capital projects shall require that proposals (a) demonstrate to the relevant agency or authority that the planning, design, engineering and specifications for the project include adaptation measures sufficient to address climate risks that will arise over the economic life or service life of the project, whichever is longer; and (b) disclose in all design engineering, architectural, or other drawings and analyses the climate assumptions used in evaluating and addressing climate risks. This section shall not apply to emergency procurements as defined in section eight of chapter 30B.

Section 5.  The requirements for risk disclosure and adoption of adaptation measures set forth in this chapter include the requirement that such disclosures and adaptation measures identify and alleviate any climate risks that disproportionately burden low and moderate income and minority populations, populations with limited English proficiency or foreign origin, or populations historically subject to higher rates of exposure to environmental risks than the general population. Adaptation measures shall further be designed to avoid disparate impacts on the basis of race, color, national origin, or income. 

Section 6. The secretary of the executive office of energy and environmental affairs may promulgate such rules and regulations as are necessary to promptly and effectively enforce the provisions of sections one through four, inclusive.

Section 7.

(a) The following shall be exempt from the requirements of this Chapter:

(i)Any project for which the Director of the Massachusetts Emergency Management Agency certifies in writing that the project poses no climate risks and has no potential to result in an increase in emergency response costs;

(ii)Any action or project for the operation, or maintenance of existing infrastructure.

(iii)Any grant or financing by the commonwealth in an amount less than $100,000, which threshold is subject to revision by regulation promulgated by the Secretary of the Executive Office of Energy and Environmental Affairs;

(iv)Any category of actions or activities for which a state agency or state authority establishes by regulation, with the concurrence of Director of the Massachusetts Emergency Management Agency, pose no climate risks and have no potential to result in an increase in emergency response costs.

Section 8. (a) The Department of Public Utilities shall require, in any ratemaking proceeding pursuant to sections seventy-six, nintety-three, and ninety-four of chapter one hundred and sixty-four and sections two and four of chapter one hundred and sixty-five, that investor-owned electric power, natural gas, steam distribution, and water companies identify in priority order the climate risks to its facilities, that will arise over the projected economic life of such facilities or fifty years, whichever is greater. The companies shall present evidence documenting their evaluation of climate risks and measures addressing such climate risks based on the best available data and other evidence in the record before the agency and shall identify how their operating and capital budgets address such climate risks. The companies shall also (a) consider and present evidence addressing likely climate change risk scenarios in relation to the risk tolerance of the infrastructure and (b) disclose in all design engineering, architectural, or other drawings and analyses the climate assumptions used in evaluating and addressing climate risks

(b) Investor-owned electric, gas, steam distribution, and water companies shall prioritize, where feasible, adaptation measures that (i) promote the preservation, protection, restoration and enhancement of the commonwealth’s natural infrastructure, (ii) account for the existing natural, built, and economic characteristics of the commonwealth’s most vulnerable areas and human populations. Adaptation measures that include the use of hard-engineered, hardscape, or gray infrastructure features shall be supported by evidence the measures will not cause of exacerbate negative environmental impacts and that alternative green or green and gray hybrid solutions are not feasible.

(c) In adjudicating ratemaking proceedings pursuant to sections seventy-six, ninety-three, and ninety-four of chapter one hundred and sixty-four and sections two and four of chapter one hundred and sixty-five, the Department of Public Utilities shall determine whether the applicant’s costs proposed or incurred for capital investment projects included consideration and minimization of climate risks for the economic life of the proposed investment or fifty years, whichever is greater. In considering climate risks, the Department of Public Utilities shall analyze likely climate change risk scenarios and shall conclude in writing that those scenarios are appropriate based on the risk tolerance of the project or facility.

(d) The Department of Public Utilities shall promulgate such rules and regulations as are necessary to promptly and effectively enforce the provisions of section eight.

Section 9. In the interest of public health and safety, the Board of Building Regulations and Standards shall undertake in one year a study of the feasibility, impact, economics, and merit of code improvements that would require that buildings be designed, sited and constructed in a manner that addresses and protects against climate risks. The study shall be based on the best available data and science and shall include at least consideration of structural strength, means of egress facilities, stability, light and ventilation, energy conservation, and safety to life and property. It shall also consider public health implications like human stress thresholds associated with heat and cold. The study findings shall be published for public comment within 45 days of its completion and the Board of Building Regulations and Standards shall hold a public hearing.

SECTION 2. Section 69J1/4 of chapter 164 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting the following:

All petitions shall a) demonstrate to the board that the planning, design, engineering and specifications for the project include adaptation measures sufficient to address climate risks that will arise over the economic life of the project or the term of financing, whichever is longer; and (b) disclose in all design engineering, architectural, or other drawings and analyses the climate assumptions used in evaluating and addressing climate risks.

SECTION 3. Section 2 of chapter 21A of the General Laws, as appearing in the

2014 Official Edition, is hereby amended by inserting after clause (30) the following subsections:

(31) Establish, conduct, and maintain an annual program of education and training for members of local planning boards, zoning boards, and commissions on climate science and the physical effects of climate change including but not limited to sea level rise, storm surge, drought, wind, extreme precipitation, and extreme high and low temperature changes including heat waves and based on the best available data. Each member of a planning board, health board, or commission shall participate in training and education classes concerning the effects of climate change once every two (2) years. Each member shall complete a minimum of five (5) hours of training in order to be certified for the two (2) years required by this subsection. Upon completion of the training, the planning board or commission member shall file with the municipal clerk a statement asserting that the training course has been completed.

(32) The Secretary may, in establishing, conducting and maintaining this program of education and training, confer with and, if necessary, consolidate efforts with other mandatory board training programs as appropriate. Any consolidated training program must retain the requirement that members complete a minimum of five (5) hours of training on climate science and the physical effects of climate change.