Under GWSA, lawyers can sue State into carbon compliance

If Legislature passes Global Warming Solutions Act, TCI carbon tax likely will follow – without legislative approval

By Guy Page

February 7, 2020 – Supporters of the Transportation & Climate Initiative (TCI) needn’t worry about the Legislature’s cool reception to the unpopular regional carbon tax. If H.688. the Global Warming Solutions Act (GWSA), passes, non-legislative enactment of the TCI would likely become inevitable.

The GWSA says Vermont must meet stringent carbon emissions reduction goals. And must really means must. GWSA empowers activist environmental lawyers to sue the State of Vermont for failure to meet the goals, and gives judges the power to require compliance.

H688 (see pg. 20 for original version without ellipses or brackets) specifically outlines how the Legislature would give unelected regulators and judges the power to enforce TCI and any other carbon-reduction measure:

“Any person may commence an action [in Vermont Superior Court] alleging that rules adopted by the Secretary [of the Agency of Natural Resources to meet carbon reduction goals] have failed to achieve the greenhouse gas emissions reductions requirements….If the court finds that the rules adopted by the Secretary…. are a substantial cause of failure to achieve the greenhouse gas emissions reductions requirements… the court shall enter an order directing the Secretary to adopt or update rules that achieve the greenhouse gas emissions reductions requirements.”

Here’s how H688 likely would lead to the TCI or some other carbon tax scheme in real life.

For starters, H688 says “all State agencies shall consider any increase or decrease in greenhouse gas emissions in their decision-making procedures with respect to…. the planning, design and operation of programs, services, and infrastructure.” That phrase alone gives regulators enormous new power to require emissions reduction in virtually every aspect of operation.

But H688 doesn’t stop there. It’s got a Climate Cabinet and a Plan.

If H688 becomes law, a 21-member Climate Cabinet would develop a Plan to mandate carbon emissions 25 percent by 2025, 40% by 2030, and 80% by 2050. Climate Cabinet appointees lacking sufficient zeal might shy away from expensive, unpopular, constitutionally-questionable executive actions like the TCI and shutting off everyone’s refrigerator or hot water heater at times of peak energy usage.

House Energy & Tecbnology Chair Tim Briglin (D-Thetford) explains H688 to the Vermont Climate Caucus January 16. Photo credit Vermont Climate Caucus Facebook page.

If/when those emissions benchmarks aren’t met, the environmental lawyers will do what lawyers do best: they will sue. If they win, their court costs are covered and the judge must order the regulators to do whatever it takes to meet those goals. Like – for example – the TCI or some other court-imposed carbon tax. It won’t matter, at that future date, if the governor opposes it. Neither will it matter if a chastened Legislature opposes it. All that will matter is that an activist lawyer used the powerful statutory tools created in H.688, so thoughtfully provided by the Legislature, to force a judge to force the State of Vermont to force Vermonters to pay more to heat their homes and drive to work.

Vermonters already spend more than $200 million per year on climate change, according to a report by  Sen. Corey Parent (R-Franklin). By comparison we spend about $100 million to pave roads and $50 million for water quality. H688 lead sponsor Rep. Tim Briglin (D-Thetford), chair of House Energy & Technology Committee, straightforwardly promises that enforcing H688 will require significant more “investment” of public funds.

GWSA doesn’t factor in Vermonters’ ability to afford these added costs. It doesn’t consider whether Vermonters would rather spend more public revenue of health care, education, roads, drug prevention and treatment, and public safety. GWSA would take those decisions out of their hands.

But GWSA is not law, yet. For now, the decision rests with the House of Representatives. House Energy & Technology is still taking testimony on the bill. It will likely need review by other committees. While no bill this year is veto-proof, Briglin’s 86 co-sponsors are sending Gov. Phil Scott a message that a veto would face a serious over-ride challenge.

If the GWSA becomes law, Vermonters may well look back at 2020 as the year the State of Vermont fully mobilized for the War on Carbon. Whether the decision is remembered with pride or disillusionment is anyone’s guess.