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.”