Roper: Oops — Major component of climate plan violates U.S. Constitution

By Rob Roper

The unelected Climate Council put forward its Climate Action Plan (CAP) in December 2021 with two major components: 1) The Transportation Climate Initiative (TCI), which was basically a cap-and-trade-style carbon tax on motor fuels, and 2) a Clean Heat Standard (CHS), which is basically a cap-and-trade-style carbon tax on fossil based home heating fuels (oil, propane, natural gas, kerosene).

Rob Roper is the president of the Ethan Allen Institute.

Well, TCI is dead. It imploded when two of the only three states to sign onto the multi-state agreement (CT and RI) pulled out late last fall prompting the only remaining state (MA) to admit defeat and do the same. This outcome was obvious to anyone paying attention, but for whatever reasons the Climate Council either overlooked or chose to ignore the warning signs.

That leaves the Clean Heat Standard.

The way the Climate Council envisioned the CHS working, a few large-scale wholesalers of fossil heating fuels would be forced to purchase “clean heat credits” in order to sell their products to distributors (the folks you buy your fuel from). The costs of the credits would, of course, be pass along ultimately to hundreds of thousands of consumers, but the point of regulatory contact for the state would be small.

The problem — either overlooked or intentionally ignored by the Climate Council — is that most Vermont fuel dealers don’t buy their fuel from wholesalers based in Vermont. They get their products from wholesalers in New York, Massachusetts, New Hampshire or Canada. And, minor detail, Vermont has no authority to make wholesalers in those states buy Vermont’s clean heat credits. Attempting to do so would violate what is referred to as dormant commerce clause of the U.S. Constitution. Oops.

This should have killed the proposal as no longer workable.

Now, for the Clean Heat Standard to work, Vermont must force not a small number of usually large-scale financially sophisticated businesses to buy these credits, but rather lots and lots of generally small, unsophisticated, mom & pop businesses to do so. This makes implementing, monitoring, and managing the CHS vastly more complicated and economically disruptive than originally envisioned, and a state-created and regulated market for clean heat credits was never going to be simple.

Proponents of the CHS compare it to the Regional Greenhouse Gas Initiative (RGGI), which is cap and trade program affecting power plants, and the Renewable Portfolio Standard, which is applied to electric utilities. These are “pumpkins to peas” comparisons. These programs are feasible because they apply to a small number of entities who have substantial technical, legal and economic resources, and who exercise control over the decisions necessary to comply. The Clean Heat Standard, as proposed, lacks all of these essential features.

A good comparison for CHS regarding its requirement for lots of small businesses being forced to purchase credits in a far less stable market is … TCI. And, we saw how that ended up! Time to start a pool on how long it will take the CHS to meet the same fate.

Rob Roper is president of the Ethan Allen Institute. Reprinted with permission from the Ethan Allen Institute Blog.

Image courtesy of Wikimedia Commons

7 thoughts on “Roper: Oops — Major component of climate plan violates U.S. Constitution

  1. Lets turn this “clean” wish around and put some real bite in it. Let Vermont ban all jet travel in and out of the state, and ban all products from the nations that cause the most CO2. That is China and India. Lets see how that works for the wokes.

  2. Make the public thing you are saving them…… from invisible disaster.
    While you are screwing the dickens out of their home and family budgets
    We have been using oil for centuries! are we dead yet?

    Freeze in the dark!!!

  3. Robert,

    Vermont has a State Department of Justice.
    That department should be reviewing VT laws regarding constitutionality.

    GWSA likely is not constitutional, because it is delegating taxation to non-legislative GWSA committees.
    Since when has the legislature abdicated the taxation function?

    Vermont has no authority regarding regulating inter-state commerce.
    All that falls under federal jurisdiction.

    It looks like the legislature will have to impose heating fuel taxes, which should appear on invoices, just as GMP, etc., itemize taxes, fees and surcharges.

    Why all this complicated convolution?
    The state may be getting too big and too complex.

    It is time to go to the polls en masse in November 2022 AND VOTE THESE nincompoops FOLKS OUT.


  4. When will citizens realize Liberals ” Hate ” the Constitution and any elected official that
    does not support the Constitution is a traitor, and should be held accountable.

    These climate crusaders, only care about their agenda, your rights under the constitution
    mean nothing but your tax dollars are needed, demand we stop this nonsense on saving
    the planet from Vermont, when the rest of the world keeps polluting every day !!

  5. Roper has a point, but it will be lost in the narrative of the climate evangelists.
    The Vermont Legislature hasn’t really concerned themselves with trivial things like the Vermont or US Constitution for decades. They, as well as lobbyists, NGO’s and other groups have learned to ratchet up the rhetoric and diverge from constitutional principles. Lawsuits to defend the Constitution, both state and federal are met with a virtually unlimited supply of taxpayer revenue to defend the law that flies in the face of our founding documents.
    One illustration of this is with Act 48 and Obamacare. Challenged since passed, we are stuck with quasi-socialized medicine- very expensive and lowering quality, year over year. Is the end user satisfied with the results for the funds paid? Only if one is receiving a subsidy…Yet we taxpayers have spent well in excess of $150,000,000.00 in adopting, building a website, defending the law and administering Act 48- before a cent was spent on so much as an aspirin.
    The GWSA with it’s mandated Climate Council has done nothing more than spend tax dollars chasing an ideal that science (of the normal kind) can’t even determine is a real problem. After all the tax dollars are collected and spent, remember even the most ardent supporters of the GWSA say it will have no effect in reducing CO2 emissions. The GWSA ain’t about “saving the planet”, it’s about redistribution of wealth. Yours- not their’s.

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