By Rob Roper

The full Senate voted 20-10 to concur with the House version of S.5, the clean heat standard bill, sending it to the governor’s desk.

Gov. Phil Scott is expected to veto the bill, dubbed the “Unaffordable Heat Act” by its critics. Whether that veto is sustained or overridden will likely come down to one or two votes in the Senate.

Contention and confusion continued to exist around the so called “check back” provision in the bill that requires the newly elected Legislature in 2025 to vote on whether or not to approve the rules for the program that will be written by the Public Utilities Commission (PUC) between now and then. “What does this mean?” was a frequently asked question during floor debate.

State Sen. Chris Bray, D-Addison

Sen. Russ Ingalls, R-Essex, questioned Sen. Chris Bray, D-Addison.

“We were assured by the senator from Danville [Sen. Jane Kitchel, D-Caledonia] that this was a study, and nothing would be implemented. We were assured this was a study. It looks more like implementation than a study. Is this a study or implementation?” Ingalls asked.

Bray responded, “I wouldn’t call it either. I would characterize it as a plan developed under the guidance of the legislature to put us in a position that should we want to implement a clean heat standard we would have the design to consider. If we then chose to implement it a new bill would be introduced by the next legislature, and it would take an enactment to go to the next phase.”

It is this high degree of overly careful and obscure language by supporters of S.5 that leaves people feeling like they are being misled.

Sen. Bobby Starr, D-Orleans, asked Bray to read aloud Section 8126 of the bill, which says, “The commission shall adopt rules and make orders to implement and enforce the clean heat standard program,” and explain what it means.

Starr, then commented, “I just heard [Senator Bray] say [the PUC] couldn’t do any of this stuff, then what he read says they can to all this stuff! Do they have permission or not?”

Bray explained that the original committee version of S.5 bill fully implemented the clean heat standard. When there was pushback about the lack of understanding regarding the cost and details of how the program would work, the check back provision was added with a “notwithstanding” clause that disallowed the PUC from moving “all the way” to implementation.

So Starr then asked Bray, “Why don’t we strike that language [you just read] so there’s no confusion?”

Bray replied: “The reason not to delete [it] is that it includes, for instance, the ability to implement orders — the PUC’s ability to construct the administrative back end of such a program.”

This, at the very least, was an admission that the administrative structure for the clean heat standard will be built before the legislature votes again in 2025, making the point that this bill is about implementing the program starting now.

“This says the PUC “shall” adopt rules and issue orders — and that’s not a ‘check back,’” Starr said.

Sen. Randy Brock built on the comments made by Starr.

“I understand that rules will not be implemented until the legislature acts, but [section] 8126b goes further,” Brock said. “It says ‘the requirement to adopt rules and the requirement regarding the need for legislative approval before any part of the Clean Heat Standard goes into effect do not in any way impair the PUC’s authority to issue orders or take any other actions both before and after final rules take effect to implement and enforce the CHS.’ … Although there is the ‘notwithstanding’ clause regarding filing rules, this doesn’t have anything to do with putting the plan in place.”

The architect of the “check back,” Sen. Kitchel, seemed flustered that people were concerned about the inefficacy of her amendment.

“It was because of the check back language people felt comfortable supporting the work.” She admitted adding she would be “distressed” if the check back didn’t do what she was saying it did.

“[I] have been assured by legislative council — multiple lawyers — that this language, as it appears now, that nothing can move forward without legislative action,” Kitchel said.

However, most eyes were on Sen. Dick Sears, D-Bennington. Sears has expressed reservations about S.5 throughout this process. He voted against the bill in the Senate Appropriations Committee, then switched his vote to a yes when the full Senate first voted on S.5 in early March.

Listening to the debate, Sears commented, “This is a leap of faith more than I’m used to.”

But leap he did, casting a yes vote — the 20th vote. If Sears stays a yes, that is the vote supporters of S.5 need to override the governor’s veto.

Rob Roper is a freelance writer who has been involved with Vermont politics and policy for over 20 years. © Copyright True North Reports 2023. All rights reserved.