Mermel: Affordable Heating Act – legal construction prioritized over unanswered questions

by Myers Mermel

Last Thursday, the Vermont Senate Natural Resources Committee continued its efforts to structure the Affordable Heating Act (“AHA”) so that it would meet legal requirements and be enforceable. Despite Ethan Allen Institute estimates of a surcharge on heating fuel of as much as $4.00 per gallon which will unravel implementation of the AHA, the Committee continues to seek advice on how to prevent the program from being opposed on legal grounds.

The Committee heard a presentation from Geoffrey Hand, Esq. of SRH Law which reviewed basic concepts of Federalism. Under review was Article VI, Clause 2 of the U.S. Constitution, known as the Preemption Doctrine. The Preemption Doctrine mandates that federal laws preempt state laws. Also under review was Article I, Section 8, Clause 3 of the U.S. Constitution which gives the federal government authority over commerce and restricts the regulatory authority of states. 

Of interest to the Committee was the derivative legal doctrine known as the Dormant Commerce Clause which prohibits states from enacting tariffs and other economic barriers on goods from other states. Characterized by Chairman Chris Bray as “legal hygiene,” these legal lessons were meant to instruct the Committee to construct AHA not to focus on the origin of the fuel, apply only to jurisdictional transactions within the state, and push obligations as far up the chain of delivery as possible. If AHA was structured accordingly, attorney Hand believed it should avoid conflict with the Dormant Commerce Clause.

The Committee also heard from Ted Barnett of the Joint Fiscal Office who explained that Vermont collects around $10 million annually from fuel taxes.  However, his calculations showed only 235 million gallons of fuel were sold in 2022 instead of ANR Secretary Julie Moore’s prior estimate of 250 million gallons. That discrepancy may be a sign demand is declining, likely due to current high costs of fuel. Remember, under AHA, the smaller amount of fuel sold means the additional surcharge on each gallon will only be higher.

Secretary Julie Moore made a quick reappearance. She provided an update on the efforts currently undertaken to correctly measure Greenhouse Gases through available datasets. It appears that the basic data isn’t available; measurement methodology also seems to be unresolved. And it seems there isn’t a means to measure the GHG baseline and its reduction or increase. Secretary Moore indicated that her agency is developing a Measuring and Assessing Progress (MAP) tool which should measure emissions, resilience, adaptation, and community engagement.  This tool will not be available in the Spring of 2025. How can AHA proceed immediately when there is a lack of legitimate data, no tools to measure progress, and no agreement of methodology of measurement? And it will take two years to remedy these issues? No questions along those lines from the Committee.

Matt Cota, representing the fuel dealers, also testified. He warned the Committee about the impracticality of trying to control the transfer of fuels from out of state and mentioned the Dormant Commerce Clause as an impediment. He was quickly brushed back by Chairman Bray who referred him to the earlier legal analysis. 

Lastly Senator Becca White admitted her family in the past has purchased diesel fuel from gas stations to use as heating fuel in order to avoid delivery charges and fuel taxes. She asked Mr. Cota how many people were non-compliant, avoiding taxes, like her family, in the current system at this time. He did not know. 

Senator White’s admission of familial non-compliance only makes our point that AHA’s high prices will cause smuggling. When people smuggle fuel under AHA, there will be less money for the Vermont fuel dealers and less money to feed back to make the home improvements. That’s how the grand scheme of AHA will break down. Even the last individual to testify, Kyle Landis Marinello of the Vermont Public Utility Commission, warned about the Achilles heel of AHA: it is “prudent to assume less than full compliance.”


Categories: Commentary

10 replies »

  1. It seems prudent to anticipate that If you intrude on the citizens sufficiently their spirit of law abiding acquiescent will evaporate. Don’t American citizens tend to chafe under efforts to rule them. This is particularly prominent when legislators pose as representatives of a consensus that clearly does not exist.

    • Again: Thomas Jefferson put it this way.

      “When tyranny becomes law, rebellion becomes duty.”

    • Robert F. Kennedy Jr’s. response in a press interview this week regarding government control, “And then the third rule that I would say — nobody ever complied their way out of totalitarian regime rules. So if you think that by obeying these rules, that somehow things are going to get better, or it is going to satiate the need to control you, it’s not. It’s just going to embolden them to do something worse the next time.”

      Non-compliance is the only thing they understand and there are more of us then them!

  2. Myers Mermel? Nasty carpetbagger from New York. There are other sources of news that don’t reward disgusting conduct.

    • Mr. Mermel can stand on his own two feet, or not. As that sorts itself out, Mr. Mermel’s information and commentary are important to get published. The deception being committed by our “elected representatives” is appalling and beyond the pale, even for these elitist socialists. So, we can list out just a few facts- which will be assuredly ignored by the climate evangelists:
      FACT: The cost of all fuels will increase by an unknown amount, in addition to the increases already caused by current government energy policy. The effect on Vermont’s economy is negative, Period.
      FACT: Current technologies and infrastructure do not support the contrived outcome of the policies already in effect, say nothing of this future diktat.I’m talking about the abilities of ductless mini split units to heat efficiently (if at all) in sub-zero temps- and the ability of current transmission, distribution and home electrical systems to handle the requirements being proposed.
      FACT: Per VT ANR Secretary Julie Moore, currently monitoring systems do not exist that give anything close to an accurate picture of CO2 levels in Vermont- even to serve as a starting point.
      FACT: Bootleg heating fuels will become widespread, regardless of what a GWSA supporter might want you to think, Obviously if a state senators family is doing it already, what prevent this as fuels increase $.70 to $4.00 a gallon?
      FACT: The unintended (possibly not) consequence of these carbon taxes, regulation and fuel prohibitions will result in multiple deaths. Multiple people will die, as a result of freezing to death in their homes, unable to afford fuel for heat- or unable to maintain alternate heat sources when the electric utility power is out.
      For anyone that believes we humans have any control over our environment,
      your arrogance is astounding.

  3. FF1776-
    I am aware of the controversy inside EAI, but knowing little detail, I am reluctant to pass judgement. Mermel’s article is important information that needs to be heard and seen- We will see if EAI under his leadership remains intact. He will have to stand on his own two feet…or not.
    The issue is this ‘clean heat standard’ not Mr. Mermels origins or politics. We can decide that later

  4. Myer or Rob, the problem is a dangerous, expensive proposed law which will hurt all Vermonters, especially those who can’t afford a load of useless costs.

  5. They know this won’t work and many of the lawmakers are compromised by being invested in or employees of the green energy farce. There’s lots of money to be made if you are well positioned and many of them were assisted in getting elected by the money interests like VIPRG and Sun Common to push this through. Vermont has no ethics for grifter legislators. It’s always the same names on these bills so you can identify who they are. Money breeds corruption!

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