Mermel: Affordable Heating Act legal construction prioritized over unanswered questions

This commentary is by Myers Mermel, president of the Ethan Allen Institute. He resides in Manchester.

Last Thursday, the Vermont Senate Natural Resources Committee continued its efforts to structure the Affordable Heating Act (“AHA”) so that it would meet legal requirements and be enforceable. Despite Ethan Allen Institute estimates of a surcharge on heating fuel of as much as $4.00 per gallon which will unravel implementation of the AHA, the Committee continues to seek advice on how to prevent the program from being opposed on legal grounds.

Myers Mermel

Myers Mermel is president of the Ethan Allen Institute.

The Committee heard a presentation from Geoffrey Hand, Esq. of SRH Law which reviewed basic concepts of Federalism. Under review was Article VI, Clause 2 of the U.S. Constitution, known as the Preemption Doctrine. The Preemption Doctrine mandates that federal laws preempt state laws. Also under review was Article I, Section 8, Clause 3 of the U.S. Constitution which gives the federal government authority over commerce and restricts the regulatory authority of states.

Of interest to the Committee was the derivative legal doctrine known as the Dormant Commerce Clause which prohibits states from enacting tariffs and other economic barriers on goods from other states. Characterized by Chairman Chris Bray as “legal hygiene,” these legal lessons were meant to instruct the Committee to construct AHA not to focus on the origin of the fuel, apply only to jurisdictional transactions within the state, and push obligations as far up the chain of delivery as possible. If AHA was structured accordingly, attorney Hand believed it should avoid conflict with the Dormant Commerce Clause.

The Committee also heard from Ted Barnett of the Joint Fiscal Office who explained that Vermont collects around $10 million annually from fuel taxes.  However, his calculations showed only 235 million gallons of fuel were sold in 2022 instead of ANR Secretary Julie Moore’s prior estimate of 250 million gallons. That discrepancy may be a sign demand is declining, likely due to current high costs of fuel. Remember, under AHA, the smaller amount of fuel sold means the additional surcharge on each gallon will only be higher.

Secretary Julie Moore made a quick reappearance. She provided an update on the efforts currently undertaken to correctly measure Greenhouse Gases through available datasets. It appears that the basic data isn’t available; measurement methodology also seems to be unresolved. And it seems there isn’t a means to measure the GHG baseline and its reduction or increase. Secretary Moore indicated that her agency is developing a Measuring and Assessing Progress (MAP) tool which should measure emissions, resilience, adaptation, and community engagement.  This tool will not be available in the Spring of 2025. How can AHA proceed immediately when there is a lack of legitimate data, no tools to measure progress, and no agreement of methodology of measurement? And it will take two years to remedy these issues? No questions along those lines from the Committee.

Matt Cota, representing the fuel dealers, also testified. He warned the Committee about the impracticality of trying to control the transfer of fuels from out of state and mentioned the Dormant Commerce Clause as an impediment. He was quickly brushed back by Chairman Bray who referred him to the earlier legal analysis.

Lastly Senator Becca White admitted her family in the past has purchased diesel fuel from gas stations to use as heating fuel in order to avoid delivery charges and fuel taxes. She asked Mr. Cota how many people were non-compliant, avoiding taxes, like her family, in the current system at this time. He did not know.

Senator White’s admission of familial non-compliance only makes our point that AHA’s high prices will cause smuggling. When people smuggle fuel under AHA, there will be less money for the Vermont fuel dealers and less money to feed back to make the home improvements. That’s how the grand scheme of AHA will break down. Even the last individual to testify, Kyle Landis Marinello of the Vermont Public Utility Commission, warned about the Achilles heel of AHA: it is “prudent to assume less than full compliance.”

Image courtesy of Myers Mermel

2 thoughts on “Mermel: Affordable Heating Act legal construction prioritized over unanswered questions

  1. Thank you Myers for cutting through the quagmire of this bill. I continue to be amazed at how green legislators, most of them in Montpelier, actually believe this astonishingly complex law will work. They are completely tone deaf to reality and their constituents. Maybe we should just let it happen, endure the pain and suffering and reap the whirl wind of political destruction.


    This article should be read by the Vermont Environment and Energy Committee and all Vermont legislators, so they understand the short-comings of HPs at low temperatures, when operated in houses, other than highly sealed and highly insulated houses.

    Air source HPs will not economically displace anywhere near 100% of fossil Btu in existing Vermont buildings, weatherized or not.

    The Vermont clean heating standard, CHS, modified or not, is deeply flawed. It is putting the horse behind the cart, because they are blinded by generous subsidies for HPs.

    Average Vermont House

    Based on my many years of energy systems analysis experience, I claim, the average Vermont house is totally unsuitable for HPs.

    It is down-right criminal for New England governments to cajole/browbeat/scare/force people to install HPs in such houses

    Summary of CADMUS Report

    – The annual energy cost savings were, on average, $200/y, but the annual maintenance, and annual amortizing costs (at 5.5%/y for 15 years) would turn that gain into a loss of at least $500/y.

    – On average, the HPs provided 27.6% of the annual space heat, and traditional fuels provided 72.4%. These numbers are directly from the survey data. The small percentage of displaced fossil fuel heat indicates HPs would not be effective CO2 reducers in the cold climate of Vermont, if used in average VT houses.

    – Owners started to turn off their HPs at about 28F to 30F, because their past experience showed significant increases in electricity bills, if they had not turned them off.

    – Very few owners were using their HPs at 10F and below, as shown by the decreasing kWh consumption totals on figure 14 of URL.
    – At those temperatures, the hourly cost of operating HPs exceeded the hourly cost of using a traditional heating system.
    – This statement is true for average Vermont houses, which comprise about 90% of the Vermont housing stock.

    – On average, an HP consumed 2,085 kWh during the heating season, of which:

    1) To outdoor unit (compressor, outdoor fan, controls) + indoor air handling unit (fan and supplemental electric heater, if used), to provide space heat 1,880 kWh
    2) Standby mode 76 kWh, or 100 x 76/2085 = 3.6%. The HP cycles to “heat on” to “heat off”, but the fan keeps running
    3) Defrost mode 129 kWh, or 100 x 129/2085 = 6.2%. Defrost starts at about 37F and ends at about 10F.

    The HP overhead was (2085 – 205)/1880 = 10.9%, i.e., 10.9% more electricity was fed to the HP than was converted to space heat.

    – Turnkey cost for a one-head HP system is about $4,500 (2017 pricing); almost all surveyed houses had just one HP, which would be far from sufficient to heat an entire house. See URLs.

    CADMUS Survey of Vermont Air Source HPs

    CADMUS, an energy consultant hired by the Vermont Department of Public Service in 2017, performed a survey of 77 HPs at 65 sites, in Vermont. See URL of CADMUS report

    VT-DPS was advised by the Vermont Legislature to obtain an “independent” study, because many people with HPs had complained, they did not get anywhere near the annual energy cost savings stated on websites, etc., of GMP, BED, VPIRG, VT-DPS, EAN, EFFICIENCY VERMONT, etc.,

    NOTE: The CADMUS report was written in such a confusing way, the average Vermonter, including almost all legislators, would not be informed by it, and would be more confused by it, unless they had a mechanical engineering degree, with applicable experience.
    I do have the degree and experience, so I could analyze it.

    HP Operating Data from Survey

    Figure 14 in the CADMUS report shows, the measured total electricity consumption, kWh, of all HPs was 8 kWh at 66F, then increases to a maximum of 97 kWh at 28F, then decreases to about 5 kWh at -12F. That kWh includes about

    Whereas the building heating load was increasing, because it was getting colder, the measured electricity to the HPs was decreasing!!

    That decrease could only happen, if Vermonters turned off their HPs, to save on electricity costs.
    Instead, they used their less-costly-to-operate traditional heating systems, such as oil, gas, propane and wood stoves.

    Deceptions by HP Proponents

    Vermonters operate their HPs mostly above 28F, which yields an average coefficient of performance, COP, of about 3.0. See figure 14

    HP proponents brag Vermonters get about 3.0 x 3412 = 10,200 Btu/kWh of electricity.
    However, proponents do not mention, if Vermonters had operated their HPs below 28F, the COP would become less and less
    Vermonters would get only 2.0 x 3412 = 6,824 Btu/kWh of electricity at 10F, or 1.6 x 3412 = 5,460 Btu/kWh at 0F

    The lower COPs occur while the building heating load is increasing, i.e., it is very expensive to operate an HP at low temperatures.

    Computer Program to Determine Heating Consumption

    CADMUS used a decades-old, standard, HVAC computer program that takes the hourly temperature history of one heating season (or averages, say 5 years of heating seasons).
    The temperature history is obtained from US weather data.

    The computer program allocates the frequency and duration of temperatures to two-degree temperature intervals, also called “bins”.
    See URL of CADMUS report; horizontal axis of figure 14

    The space heat to a site is calculated for each two-degree bin, say 32 F – 34 F; 34 F – 36 F; 36 F – 38 F, etc.
    The total space heat to a site is obtained by adding the space heats for all two-degree bins.

    The computer program calculated the following values, as stated in the CADMUS report:

    – Space heat to a site was 92 million Btu, of which 25.35 million from HPs (27.6%), and 66.65 million from other fuels (72.4%)
    – Space heat to all sites was 65 sites x 92 million Btu/site = 5,980 million Btu. See CADMUS URL, page 22
    – Space heat from HPs was 77 HPs x 21.4 million Btu/HP = 1,648 million Btu. See CADMUS URL, page 21
    – Traditional systems provided 5980 – 1648 = 4,332 million Btu, or 4332/5980 = 72.4% of the total space heat.
    – HPs provided only 100 – 72.4 = 27.6% of the total space heat for an average Vermont house. See table
    – Heating season average COP = 21400000 Btu/HP x 1/2085 kWh x 1 kWh/3412 Btu = 3.0

    Energy Cost Savings

    The energy cost savings averaged about $200/y, instead of the $1,200/y to $1,800/y grabbed out of the air by GMP, VT-DPS, VPIRG, etc.

    After the CADMUS report, those overblown estimates disappeared from their websites. See URLs.

    The CADMUS report data is summarized in the table

    See URL for table


    I have three Mitsubishi HPs, with 6 heads ($24,000 – $2,400 subsidy from GMP) in my well-insulated/sealed house.
    I displace only 35% of my propane Btus, based on MEASURED consumption data during 3 years.
    I do not use my HPs below 15F, because they cost more PER HOUR than my efficient propane furnace.
    I save about $200/y in energy costs.
    If I amortize the cost of the HPs over 15 years, I lose about $2,000/y

    NOTE: Due to recent increases of propane prices, I will operate my HPs down to about 10F to 15F (depending on wind conditions and passive solar gain), which means, I will:

    1) Displace a little more than 35% of fossil fuel Btus with electricity Btus,
    2) Have a greater CO2 reduction.
    3) Have a MUCH greater monthly electric bill.

    Coddling RE Businesses

    Heavily subsidized businesses selling/installing/servicing HPs, etc., will be collecting hundreds of $millions each year over the decades, while already-struggling, over-regulated, over-taxed Vermonters will be further screwed out of a decent standard of living.

    HP boosters Sens. Bray, McDonald, etc., know about those dreadful HP results in Vermont, and yet they continue shilling for HPs.

    All these expensive Vermont GWSA efforts will be having ZERO IMPACT ON GLOBAL WARMING.

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