By Rob Roper
The Global Warming Solutions Act bill passed out of the House Energy and Technology Committee on a 7-2 vote and moved to the House Appropriations Committee.
Here’s how the bill is shaping up as it moves through the system. In some respects, the bill has been watered down significantly, but it still retains many undesirable and impractical provisions.
The greenhouse gas emission goals that would be put into statute as mandates for the state to achieve would be by:
2025 – reduce by 26% relative to 2005 (based on the Paris Climate Agreement)
2030 – 40% reduction relative to 1990 (based on the Comprehensive Energy Plan)
2050 – 80% below 1990 (based on the Comprehensive Energy Plan)
The GWSA would establish a 22-member board that would establish the strategy by which the state will meet these mandates and make recommendations to the Agency of Natural Resources (ANR), which would be responsible for making and implementing the rules by which the state will reach these mandates. However, if the board fails to agree on a plan or doesn’t come up with one at all, ANR is still responsible for meeting the mandates. This last dynamic seems pretty odd. How is ANR supposed to meet the mandates without a plan to do so?
New taxes? The Legislature would have to be involved if the board or ANR recommends new taxes to meet the mandates. Any new taxes, such as a carbon tax, would have to pass through the normal legislative process. (So, good luck with that!) Additionally, if ANR or any other agency requires expanded rule-making authority to meet the mandates, the Legislature would have to officially grant that authority. There was some disagreement between the committee and legislative counsel about how broad the authority ANR currently has to achieve these mandates. The committee asserted that ANR already had broad authority to implement rules; legislative counsel believed the current scope of authority was much more limited.
Cause of action: The right of citizens to sue if the mandates are not met, and the ramifications of such actions, is arguably the most controversial part of this bill. A big change from last year’s GWSA proposal and this one is that lawsuits can now only be directed at the state. Unlike the first proposal, a citizen (or more likely a special interest group such as VPIRG or CLF) could not sue a fuel dealer or any other private business under this law. This version of the bill also prohibits the court from awarding the plaintiff any damages, financial or punitive, if they prevail. However, the bill still does provide the possibility for the winner of any lawsuit to recover legal costs from the losing party. No inquiry was made as to how much this could potentially cost the taxpayers. (Lawyers ain’t cheap!)
Another crucial point: judges would be prohibited from proscribing policy as the result of a lawsuit. If a plaintiff brings a case and wins, all the judge would be able to do is affirm that the state has not met its mandate and issue a stern statement to “work harder.” This is a good provision that ensures elected legislators remain responsible for making policy, not judges. (Also good!)
However, one has to wonder from the advocates’ perspective, if through this new legal process there will be no punishment for failing to meet the mandates leading up tp the lawsuit and no means to enforce the mandates following the lawsuit, what’s the point of this bill at all? It’s essentially where we are now, except for the fact that the taxpayers would be on the hook for paying the salaries of VPIRG’s, CLF’s, etc. legal teams. (Is this the real point of the GWSA? A way for politicians to funnel taxpayer dollars to preferred special interest groups?)
Costs: The appropriations request over the next two years, the planning phase, is just under $1 million. The money would go to hire three new full time employees at ANR — staff director, data analyst, legal role for $336,000 per year, $50,000 for per diem expenses per year, and $200,000 one time money for outreach and consultants. Because that’s what Vermont needs is more taxpayer funded bureaucrats making over $100K per year and a slush fund to feather the nests of special interest “consultants.” But, the real question is what it would cost and what the rules might be for achieving these proposed mandates. On that score we hear only crickets.
Conclusions: While at this point the GWSA could aptly be re-named the Greatly Watered Senseless Act, it is still a highly flawed concept. Legislators are being asked to put the state in the position of having to meet specific greenhouse reduction goals, based on an unknown set of rules to be determined by ANR, without any idea of what those rules might be or how much implementing them will cost, or what their impact might be on the broader economy — and putting the state and taxpayers in some legal jeopardy if the goals are not met. Under any circumstances, this is an insanely irresponsible way to govern.
At its core, the GWSA is stupid idea and should be swiftly scrapped. But, if there are political considerations that need to be taken into account, perhaps a prudent measure would be to replace the existing bill with a study examining what the rules and the costs of meeting these GHG goals would look like first, before the Legislature commits to make meeting them mandatory. Vermonters deserve this level of transparency from their elected officials regarding a policy that its proponents admit will turn our economy and way of life on its head.