Legislature’s ‘Rube Goldberg’ law beyond comprehension
by Thomas F. Koch, with help from State Senate candidate Donald T. Koch
The climate is changing, and the planet is getting warmer! There’s really no doubt about it. Lands, including homes, that have never been flooded before have been the victim of rising rain water—some even more than once in a single season. Our winters seem to be getting shorter and milder, home orchards can now sustain fruit trees that never would have survived a Vermont winter 30 years ago, and hurricanes and other tropical storms seem to be greater both in number and intensity.
Recognizing the reality of climate change, however, does not answer all of the questions. Rather, it raises a few that demand careful, thoughtful responses. The first two that come to mind are 1) what is the cause of climate change and global warming, and 2) what can we do to prevent further warming, or perhaps even reverse some of the change that has already occurred?
Over the past several legislative sessions, it has become clear that the supermajority of Democrats believe that human activity is the cause of one hundred percent of climate change and that we can prevent further change by changing human behavior. They even passed a bill bearing the bold title of “Global Warming Solutions Act,” but more on that shortly.
On top of that, they passed a bill titled the “Affordable Heat Act.” Since my home heating bills have been creeping upward with the increasing price of #2 oil in recent years, I’m certainly interested in knowing how my senators and representatives are going to make my heat more affordable!
Meanwhile, those backward thinking Republicans, led by that ultra-reactionary Governor Phil Scott (the one with the 61% approval rating), seem to believe that while humans have certainly contributed to climate change, and science has demonstrated this to be true, some of the change may also be due to natural phenomena comparable to other changes in our climate seen over many centuries. And those same Republicans also seem a bit skeptical of the idea that little old Vermont can actually provide the solution to climate change with the passage of one or two pieces of legislation, and that, in fact, there might be limits to what this state can reasonably ask its citizens to do.
So how did we get where we’re at?
In 2007, the legislature passed a set of greenhouse gas reduction goals, whereby Vermont would reduce its carbon emissions of greenhouse gases by at least 26% from 2005 emissions by January 1, 2025; by at least 40% from 1990 emissions by January 1, 2030; and by at least 80% from 1990 emissions by January 1, 2050. That’s a big reduction in our greenhouse gas emissions, and whether these goals are realistic and achievable remain in doubt even today.
Despite questions of realism and achievability, the legislature revisited the subject in 2020 and, overriding Governor Scott’s veto, passed the Global Warming Solutions Act, which converted the goals into mandates, requiring that the reductions in the 2007 Act “shall” occur. The Act created a Vermont Climate Council to recommend any additional legislation that might be required to achieve the Act’s mandates and to create a Vermont Climate Action Plan. The Secretary of the Agency of Natural Resources was directed to adopt rules (having the force of law) to implement the Climate Action Plan and assure that the emissions reductions required by the Act are accomplished.
Then in December, 2021, the Climate Council produced the required Climate Action Plan, which led to further legislation, also adopted over Governor Scott’s veto, called the “Affordable Heat Act.” Legislative “findings” contained in the bill recited that in 2018, “approximately 72 percent of Vermont’s thermal energy use was fossil based, including 29 percent from the burning of heating oil, 24 percent from fossil gas, and 19 percent from propane.” The findings continued by saying that “To meet the greenhouse gas emission reductions required by the GWSA, Vermont needs to transition away from its current carbon-intensive building heating practices to lower-carbon alternatives.”
Of course, legislative findings accomplish nothing; they merely explain why the legislature thinks is necessary to pass the rest of the bill. What they proceeded to do was state that “The Clean Heat Standard is established.”
“What is the Clean Heat Standard?” you might ask. Well, that’s a fair question, because the bill doesn’t answer that question. Six pages after adopting the Clean Heat Standard, the bill continues, “The Clean Heat Standard shall be designed and implemented to enhance social equity….” (emphasis added) So on page 3 of the bill, the legislature adopted something that the language on page 9 makes clear doesn’t exist yet! Rather, it turns over development of the Clean Heat Standard to the Public Utilities Commission and to a 15-member Clean Heat Standard Technical Advisory Group (TAG), which in turn, is authorized to employ a consultant to help design this beast.
The bill does, however, outline in lengthy and confusing language a system by which fuel dealers will be responsible for causing customers to use less of the product that the dealers are in the business of selling. To do this, a system of “tradeable credits” is to be invented out of thin air, and each fuel dealer is required to earn a proportionate amount (the proportions yet to be determined) of the credits by installing approved alternatives to fossil fuels.
These alternatives include such things as weatherization, heat pumps, solar hot water systems, utility-controlled electric water heaters, and electric appliances providing thermal end uses, etc. Of course, small fuel dealers are generally not in the business of installing such measures, so there will be an alternative—they can purchase their credits for prices yet to be determined!
Need I mention one of the basic laws of economics—that it is never the middleman, but rather the end user, who pays? Rest assured that whatever the fuel dealers pay for their credits will be passed on to the consumer, i.e., you.
What happens to the money with which the credits are purchased? Well, that will go into a fund to be used to pay contractors who are in the business of installing approved alternatives to fossil fuels, and you can bet your bottom dollar (if you have a dollar left after paying for your share of tradeable credits that you never see) that some of the people and organizations that advocated for the adoption of this bill will be at the head of the line offering their services in order to collect as much as they can from the fund.
If all of this seems baffling to you, as it does to me, you certainly have company. As the bill was about to be approved by the Senate Committee on Natural Resources and Energy, Senator Mark MacDonald of Orange County said it was a “Rube Goldberg” and that he didn’t understand it.
True enough, but the next day MacDonald voted for it anyway.
The most recent development in this scenario is a “Clean Heat Standard Potential Study—Final Draft Result” dated July 25, 2024 and marked NOT FOR DISTRIBUTION OR ATTRIBUTION. Nevertheless, the document has been widely distributed and attributed to its author, the consulting firm NV5, which was employed by the Technical Advisory Group mentioned above. And the main point made in this study is that the Affordable Heat Standard is likely to cost Vermonters $17.3 Billion over the next 25 years, with a net societal benefit over that same time of $3.6 Billion.
Note, however, that much of the cost is up front and more predictable, while the benefits are farther down the line and more speculative. In addition, from what I can determine, it is likely that those who pay more will benefit less, and those who pay less will benefit more. I’m not sure that’s what’s called “equity.”
The purpose of this “Rube Goldberg” of a bill is to help Vermont meet the greenhouse gas emission reductions mandated by the Global Warming Solutions Act. But what happens if, for one reason or another, Vermont fails to meet its mandated reductions? After all, we can’t be sued, can we? Normally, a state is immune from lawsuits challenging policy unless that policy somehow violates the United States or Vermont Constitutions.
But what if someone is dumb enough to stand up and say, “I invite anyone—anyone at all—to sue me, and if you’re successful, I’ll also pay your attorney fees and other legal expenses because of your kindness?” Well, that’s just what the legislature has done, because in the GWSA the legislature said,
Any person may commence an action based upon the failure of the Secretary of Natural Resources to adopt or update rules pursuant to the deadlines in section 593 of this chapter.
and
Any person may commence an action alleging that rules adopted by the secretary pursuant to section 593 of this chapter have failed to achieve the greenhouse gas emissions reductions requirements pursuant to section 578 of this title.
and
In an action brought pursuant to this section, a prevailing party or substantially prevailing party:
(1) that is a plaintiff shall be awarded reasonable costs and attorney’s fees unless doing so would not serve the interests of justice; or
(2) that is a defendant may be awarded reasonable costs and attorney’s fees if the action was frivolous or lacked a reasonable basis in law or fact.
One might note that while this provision seems balanced, a court almost never finds a lawsuit to be frivolous or completely lacking in merit, so the only fees that are likely to be paid are the ones that will be paid by the State of Vermont.
And guess what! The Conservation Law Foundation has wasted no time in giving notice that it intends to sue the state for failing to meet the greenhouse gas emission reductions required as of January 1, 2025. One way or another, this looks like another totally unnecessary expenditure of taxpayer money, possibly totaling in the millions, because believe me, those out-of-state attorneys sure know how to run up the tab.
So here we are: lawyers, and contractors, and big oil and gas companies, and bureaucrats, and consultants—all with their hands in the till! And indeed, it looks as if we are not on line to meet our January 1, 2025 mandated reductions. So where should we go from here?
I would suggest that we stop, look around, and back up a long, long, way. After all, with all of the trees in our forests consuming carbon dioxide, we are already a carbon-negative state. So here’s what I would suggest:
A—Repeal the invitation for any busybody to sue the State for failure to meet the GWSA mandates;
B—Repeal the mandates, and make them goals once again;
C—Repeal the Affordable Heat Act, that Rube Goldberg of a thing that will pick our pockets clean unless we get rid of it first; and
D—Recognize that even if the Global Warming Solutions Act remains in effect and achieves all of its emissions reductions, global warming will still be with us, the skies will still occasionally deliver torrential rainfall, and there will be more floods, so concentrating on adverse weather resiliency in our communities will be of greater benefit than trying to save the world.
The key to all of this is keeping things in a Vermont, small-state perspective, one we can afford and actually accomplish. It’s time we stop trying to “lead the nation” and start trying to “save our neighborhoods.”
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Categories: Commentary, Taxes
How refreshing… someone with common sense. Thank you for this.
The earth has been changing for millennia from natural causes and will continue to do so. Time to face up that we are going to live with it and adjust accordingly.
weather warfare/// any questions///
Mr Koch, I have not read a more concise and factual account of how Vermonters ae facing much high heating fuel costs. I follow the affordable heat standard daily and know, first hand, the Public Utility Commission is weaving a trap for the 70% of Vermonters that heat with fuel.
I hope Donald shares a victory with my Addison County Republican Senate candidate, Steven Heffernan. If he and Donald win, Senator Brock will need only two more to him him the 11 votes needed to sustain Governor Scott’s next veto of this terrible law.
The Party needs to educate voters how foolish and painful is the darn law. It should be a number one issue for Republican candidates and your prosaic account of this sinister idea will be the evidence voters must have.
Everyone of us 70% of fuel users should vote for a Senate candidate that vows to oppose the CHS.
Just reading this article was enough to give me a headache. I can’t imagine what it must be like for businesses to wade through this and somehow follow it.
As insane as the rule allowing anyone to take legal action against the state for not meeting the goals, it make perfect sense if you’re a Liberal Legislator because now you can fulfill your Climate fantasies and wash your hands of responsibility. It’s not their fault business Y or bureaucrat X didn’t get it done.
Re: “…hurricanes and other tropical storms seem to be greater both in number and intensity.”
Sorry, Thomas. Even your temperate assessment is inaccurate…. at least according to NOAA data going back 170 years or more. In fact, from 2021 to 2023, hurricane land fall in the U.S. was lowest on record, … by far.
Are hurricanes more intense today? Well, for the last 170 years at least, the answer is no.
https://www.nhc.noaa.gov/pastdec.shtml
Are hurricanes more destructive? Well, yes. But not because they’re more intense. It’s because more and more people are building homes and businesses in vulnerable areas.
Are more homes being flooded in Vermont today. Well, yes. Ditto above. And looking back only 30 years in terrestrial history is tantamount to comparing one’s lifetime to the time it takes to blink.
Is the climate warming? It would seem so. And it’s a gradual affair, to say the least. But considering the Milankovitch cycles, the earth’s orbit and axis tilt are in constant flux. And the end of the last major ice age, about 13,000 years ago, can be correlated to a major shift in the tilt of the earth’s axis. And we’re still in that warming cycle. Check it out.
The level of hubris infecting those who claim that anthropomorphic CO2 emissions cause the majority of climate change can’t be exaggerated. Talk about an inflated sense of self-importance. And to think they can affect climate change with Vermont’s Global Warming Solutions Act and Affordable Heat Act is doubly ludicrous. But even worse – ask yourselves how accountable these people are for their decision to invest whatever discretionary income Vermonters still have left in these foolish programs.
In the final analysis, those of us who support adaptation (i.e., moving infrastructure out of flood plains and improving drainage) over mitigation (Net-Zero CO2 emissions) are spitting into the wind. Try as we might, it’s virtually impossible to fix hubristic behavior. Only a disaster will suffice.
“Half the harm that is done in this world is due to people who want to feel important. They don’t mean to do harm; but the harm does not interest them. Or they do not see it, or they justify it because they are absorbed in the endless struggle to think well of themselves.”
― T.S. Eliot
Talk about people who want to feel important. I’m sure other people have received the 20 August, 2024 email message from Vermont’s very own, Berkley Law trained, chest thumping, senator Peter Welch, crying, “Climate Change is Here!” This sad excuse for a Vermont senator is casting about trying to find quack theories and fraudulent programs, claiming to ‘Fight Man Made Climate Change,’ on which to spend our very real and hard earned tax dollars, that will accomplish nothing but enriching, someone. The proven fact that Earth’s climate has been, and continues to be changing without the assistance of mankind, as it has for hundreds of millions of years, does not seem to deter this erstwhile climate warrior. And of course, given the fact that he has a personal connection to Vermont’s Public Utility Commission, the PUC, that has quasi-judicial authority over all of Vermont’s ‘man made’ energy and fossil fuel production and usage, is immaterial, right? There is something very fishy and possibly nefarious about this arrangement and its efforts. Definitely a ‘Follow the Money’ target…
The Right Mark
Climate Change Is Here…. it’s always been here, Mark. That’s the point. But it’s not here for the reasons Mr. Welch claims. And it’s certainly nothing Mr. Welch, his PUC commissioner wife, nor the rest of the legislature, can control.
The key phrase in the Vermont Constitution Article 9 citation below, by VermontVermonter, that:
“previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected”
… can, perhaps, be the basis for a lawsuit filed under these usurious legislative acts. After all, if they can’t mitigate climate change, they’ve failed to meet their required goals too.
Unfortunately, by suing, we’re required to pay the legal expenses, for ourselves and for our incompetent legislators. The proverbial Catch 22.
Lastly, for now at least, I’m encouraged to see some of the candidates stepping up to the VDC to express their positions and respond to comments. Now, if only those who promote these senseless legislative acts would do so. But I’m afraid that’s expecting the impossible too.
“Affordable” Heat Act…This one gets filed in the same folder as “Affordable Care” and “No Child Left Behind”, “Green New Deal”, “Path To Single Payer”, and “Build Back Better”, eh?
Oh no!! Nearly left out the best and most successful of all recent schemes and dreams to improve our lives and save the planet….the vaunted Act 46! Yep, gotta add education “at a cost that parents, voters, and taxpayers value” to that folder!
Education costs as reported in February 2024 for FY2025
“The Agency provides critical leadership, support, and oversight to a $ 2.7 billion education system with an operating budget of just over $ 55.7 million and 176 positions. ”
Key Points:
– a $ 2.7 billion education system
– with an operating [administrative] budget of just over $ 55.7 million and 176 positions.
– GRADES KINDERGARTEN THROUGH 12 72,093 students (decrease from 72,747)
That’s $2.7 Billion divided by 72,093 K thru 12 students and 7,843 Pre-K. Do the math.
That’s $33,750 per student. Meanwhile half the students don’t meet minimum grade level proficiency in reading, writing, math or science… and 90% graduate anyway.
https://legislature.vermont.gov/Documents/2024/WorkGroups/House%20Appropriations/FY%202025%20Budget/6.%20Education/W~Heather%20Bouchey~AOE%20FY25%20Budget%20Book~2-20-2024.pdf
By the way. For students and parents with tuitioned school choice, the 2024-2025 Average Announced Tuition for Union 7th-12th Grade Schools is $19,774, or just about a $14,000 taxpayer savings for every student attending an independent school.
https://education.vermont.gov/sites/aoe/files/documents/edu-fy25-announced-tuition-report-print-version.pdf
One last point. Currently, according to these enrollment figures, there are approximately 5,545 students in each grade for the whole State (K thru 12). And with 7,843 students in Pre-K, that’s approximately 2,614 per grade (Pre-K being for kids ages 3, 4 and 5 years old).
If these current Pre-K enrollments are projected forward, in 12 years Vermont will have fewer than 34,000 K thru 12 students, or about half the already low current enrollment. The resulting demographic will be disastrous, if we even make it that far.
It still frosts me how this bill slid through the Senate. I only wish I had preserved my interrogation of the chair of Natural Resources as he explained this bill on the floor. Tom and Don, as I suggested to Senator Bray at the time, one of the most alarming and unanswered concerns centers on what happens AFTER a judge rules in favor of a suing plaintiff. Legal fees and costs to the successful plaintiffs are bad enough, but they will be insignificant by comparison when the judge in such legal action is now the sole arbiter of resolving how those former goals, now mandates will be reached. (Personally, I remain convinced that this was precisely what the authors intended, for it is politically uncomfortable for legislators to legislatively force their constituents into meeting these mandates.) Said judge, who likely will have little background in science, will not be making a decision based on the economic impact on the citizenry. Said judge does not have to worry about the next election. The only relevant question is whether the court’s order will achieve the desired result of reaching the mandated numbers. That, my friends, is where the real nightmare begins.
Re: “Said judge, who likely will have little background in science, will not be making a decision based on the economic impact on the citizenry.”
Hopefully, Joe, both plaintiff and defendant will provide the expertise required to make their cases. Then the judge will decide. But the real problem is that the fox is guarding the chicken coop. Those who sue will do so because the State hasn’t done enough, for example, to mitigate CO2 levels. And the State will only be so pleased to accommodate them, further increasing the costs of these programs. Of course they will never reach the mandated numbers. Never mind that attaining the prescribed level of Net Zero Carbon emissions won’t mitigate climate change. To even approach the Net Zero goal is an impossibility to begin with.
But at least they’re trying. ☹
I can’t wait to sue you guys for all the millions of gallons of fuel and increase in carbon the gun sterilization and waiting periods have alone caused once I can figure out how to do it haha.
I think it was you that was trying to explain to that family that this is a trash bill in a nice way, but I wish you would have brought up all the massive carbon increases.
I can’t remember if you were a supporter of any of those bills, but if not, good job not breaking the law, keep up the good work. Amazing some people are allowed to break the law with impunity.
Also Joe, maybe you can read this to your constituents over and over again:
Article 9th.
That every member of society hath a right to be protected in the enjoyment of life, liberty, and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service, when necessary, or an equivalent thereto, but no part of [a man’s] any person’s property can be justly taken from him or applied to public uses, without his own consent, or that of the Representative Body of the freemen, nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law but such as they have in like manner assented to, for their common good: and previous to any law being made to raise a tax, **** the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected. ****
Well stated Mr. Koch. I would add the State legislators are elected to address state priorities. Their leadership misses that point, wasting everyone’s time and money.
Local issues will be my focus, should I be elected.
The first step is to repeal the creation of the ‘Climate Council” and fire the un-elected members.
“In a fully developed bureaucracy there is nobody left with whom one can argue, to whom one can present grievances, on whom the pressures of power can be exerted. Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless, we have a tyranny without a tyrant.” (Hannah Arendt, On Violence).
Thank you for sharing this, Tom.
And thank you, Karen, for your wonderful writings. Your “manure” article was particularly insightful, given today’s challenges…
Sorry, Tom. Your intial supposition is wrong here. August 2023 was 74.35 degrees, August 1983 was 75.04 degrees….over half a degree COOLER now.
That’s with 40 more years of emissions.
Global Warming just isn’t happening.
Let’s call the Liberals’ Global Warming Solutions and Affordable Heat Act
what they are, transparent taxpayer cash grabs.
This came out 15hrs ago, and got buried in the news feeds like 30 pages down since being on the top this morning. Definitely not typical news feed behavior…
https://countryherald.com/news/vermonts-unseasonable-cold-snap-when-will-warmer-weather-return/
Follow follow follow…
The money money money…
Qui bono?
I have said this elsewhere: what is needed to bring this insane, ideologically baleful string of laws to greater public attention is for hundreds of citizens to file individual lawsuits for the state’s failure to comply with the GWSA. This huge citizen initiative to overwhelm the court system and the enormous potential cash verdicts payable by taxpayers might finally galvanize enough citizens to vote out sufficient Prog/Dems to allow the Legislature to finally repeal these malicious laws. Absent changing the Legislature, this expensive, unachievable foolishness will just continue.
Insanity !!
People are leaving the state and even more are looking to leave. The un elected Bureaucrats need to go ! Pretty sure SCOTUS ruled on Chevron and that pertains to this !
Every Vermont Statewide candidate, and House and Senate candidates need to sign the pledge to repeal the G.W.S.A and the UnAffordable Home Heat Act. Will Donald sign it? This needs to be the first order of business in January 2025.
That’s a pledge that hasn’t been sent to me, but I have already pledged to do just that in my campaign materials. Yes, I would sign that pledge. It’s one of the few pledges I can get behind (because most of them are liberal sourced pledges, with loaded questions, and yes or no answers.)