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By Elizabeth Brown and Alison Despathy
In recent years, the Vermont Legislature has increasingly relied on a governance model in which it establishes broad statutory requirements while delegating substantial policy design and implementation authority to appointed (non-elected) boards, commissions, and councils.
Vermont utilizes this model in several key areas, including climate governance, regional planning, and healthcare. These unelected bodies (Climate Council, Regional Planning Commissions, and the Green Mountain Care Board (GMCB), respectively) are established through legislation with the intention that critical details, including methodologies, will be determined after the law is enacted.
These legislatively created bodies can therefore assist in defining the problem, proposing regulatory responses, developing policies, and creating and enforcing rules that are subject to legal deference. This approach raises concerns about unconstitutional separation of powers.
There may be valid reasons for this approach, particularly considering a part-time citizen legislature: technical expertise, flexibility in relation to rules versus statutes, continuity through election cycles. However, the drawbacks include the creation of non-elected entities with broad discretion, which can result in the diffusion of responsibility, conflicts of interest, a compromised democratic process, deficient oversight, and a lack of accountability for elected officials.
An example of this problematic delegation of power and overreach is evident in regional planning commissions (RPCs). For decades, RPCs have primarily functioned in Vermont to provide municipalities with support, advisory guidance, and coordination with the State.
However, RPCs have now been legislatively mandated with energy planning, housing planning, flood resilience, municipal plan approval, and state designation programs. In the context of municipal plans, RPCs must approve these plans, which must align with the regional plans created by the RPCs. This often results in a diminishing of community and local control, as municipality rights are gradually eroded.
One RPC is utilizing the development of its regional plan to exert influence and impose stringent regulations on towns and residents. The Two Rivers Ottauquechee Regional Commission (TRORC) has drafted a regional plan with regulatory language that, if adopted by the RPC and approved by the Land Use Review Board, would prohibit new construction requiring Act 250 approval from utilizing fossil fuels, mandate the installation of electric vehicle chargers, and permit new buildings only on paved roads. The potential impacts of TRORC proposed regulations on towns, the economy, residents, and businesses are not subject to legislative evaluation.
Vermont’s Climate Council is another instance of an unelected entity creating policy. As part of Act 153, the Global Warming Solutions Act established the Climate Council, comprising 23 appointed members, including several with apparent conflicts of interest.
The Climate Council is tasked with the development of a Climate Action Plan which is then voted on by unelected members for adoption. This is in addition to and often in direct conflict with an existing Comprehensive Energy Plan developed and updated by the Department of Public Service since 1998 with intent to,
“Ensure to the greatest extent practicable that Vermont can meet its energy service needs in a manner that is adequate, reliable, secure, and sustainable; that ensures affordability and encourages the State’s economic vitality, the efficient use of energy resources, and cost-effective demand-side management; and that is environmentally sound.”
The Climate Council is not only redundant, its existence is also constitutionally questionable. It has broad authority to develop policy via the Climate Action Plan that, “shall set forth the specific initiatives, programs, and strategies that the State shall pursue to reduce greenhouse gas emissions;…”
A third example is the Green Mountain Care Board (GMCB), originally designed to implement a single-payer healthcare program, Despite the failure of single-payer over a decade ago due to prohibitive costs, the GMCB continues to serve in its regulatory capacity, tasked with “improving the health of Vermonters while controlling healthcare costs and increasing access to high-quality care.” Since its inception, Vermont’s health insurance costs have increased exponentially while access has plummeted.
Statutorily assigned to both regulate and develop policy via rule making, the GMCB has a clear conflict of duties with an unsuccessful trajectory. This has led to the escalating issues experienced by providers and patients, posing risks to critical services and hospitals themselves.
This situation highlights examples of Vermont’s dilemma with unelected bodies and the State’s ongoing efforts to centralize and control. As decades of poor policy have compounded, it is imperative to evaluate the current situation and assess potential solutions. The same bodies created to address our problems have exacerbated Vermont’s affordability challenges. Creating unelected “special expert” bodies to solve these issues is undemocratic. It’s time to stop outsourcing responsibility.
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Categories: Commentary
It is passing the buck. It is democratic socialism. It is cognitive dissonance. It’s rampant at all levels of Vermont government.
Ladies, your post is an important public service. It goes behind the legislative curtain to expose new mandates, regulations, planning and energy policies not included in the statute that gives Council, et.al. powers of legislators. Exposing them might cause people and legislators to react.
Regarding the GWSA, nothing short of its repeal can take back our governance and take it away from their members “including several with apparent conflicts of interest.”
Rich Cowart is a member of the Climate Council and staff of the Regulatory Assistance Project. He provided the idea, outline and text to the Council that became the Clean Heat Standard. He also contracted with the Mass. government and it paid him for similar documents. He is trying to market the CHS across America.
This can be a primary topic if the Voters elect a Senate Republican Majority
Excellent analysis! You two are a great team. You wield a velvet hammer that cushions the blow for those responsible for creating all of these commissions – the voters who elected the legislators who made the laws are responsible. By avoiding naming the party that is behind the curtain you leave it to your readers to decide. There is good reason for this tactic. Cognitive dissonance. People with strongly held beliefs, in this case political beliefs, when confronted with facts which contradict their preferred narrative often dig in deeper rather than accept what is plainly obvious. Your approach softens the blow but requires self evaluation. I see it playing out on the Rural Vermont Rising FB page. We can only hope that continuing to peel the onion will lead to the right choices in November.
It’s by design, they love it. Btw, lobbyists rotate people in and out of this administrative position, making it very easy to get what 5hey want, just aka the vnrc!
A pattern of governance by unelected officials is the operating model. There committees are assigned based on ideological conformity to create a desired outcome. Then our leaders step back and say I don’t know what your talking about or I didn’t implement that policy.