 It's scenario H688. Good morning, everyone. Luke Marland, Chief Counsel of the General Assembly. Good morning. I'm here today on H688. And if you remember, last time we walked through this bill at a high level, then we talked about the cause of action section. And if you remember, there was really two parts of the cause of action section. One part, which was subsection A, and I called it scenario A, was what we called a writ of mandanus for Article 75 action based on the failure of A and R to take any action, the promulgate rules. And then the other section was B, and I called it scenario B, which was that A and R did promulgate rules, but they weren't having the desired effect. They weren't achieving the greenhouse gas reduction requirements that was in another part of that same bill. There was some discussion about what would happen if such a case was brought. And the judge found that, indeed, the rules were not having the desired impact. What would be the recourse? And the judge would send it back to A and R and tell A and R to develop better rules or redo their rules. And that led to a discussion, I believe, well, could the judge dictate specifically what the rules would pertain? So I think you had that discussion with the Attorney General's office. They submitted a memo to you. This is the memo that was submitted to you. And on page four, you'll see this paragraph that begins with, however, that is shown on the screen. And what they were suggesting is a couple of word changes. And so this shows the bill that you looked at and there are suggested changes. They suggested adding the word remanding. The words remanding the matter. And remand is what the telecourt does to send a matter back to a lower court. So it's basically sending back. So remanding the matter. And then in the end, they suggested adding consistent with this act. And so this language was also submitted to and run by the House Energy Committee. And I believe what House Energy will do is adopt these changes and insert the phrase remanding the matter. And also insert at the end consistent with, let's say, chapter instead of act as the same impact, just how we phrase things. So a couple of word changes to this part of that bill to achieve the effect of making it clear that the judge would send the matter back to ANR to improve the rules or develop new rules. And that they would do so consistent with the rest of the bill. And I'm looking at the bill as I introduce them, where this would be. It's to be on page 20, Madam Chair. Section 4, I'm sorry, 594, the cause of action at the bottom is B, lines 20 and 21. And if you flip over to the next page, there'd be 3, which starts on line 12. That's the subsection that would be modified. All right. Could you define a term with Indian versus directing? How that makes it the best? I don't know if it makes the huge difference. I think remand is, as I said, common, some colloquial terms, it's to send back to a lower court as how it's normally used. So this would make, perhaps, it clear that the judge would send the matter back to ANR to develop new rules as opposed to directing, which maybe had the implication of providing the judge ability to be very, very specific on what those rules should contain, which is, I think, the issue you were trying to avoid. So possible scenario, community group feels that the agency did not follow through on certain aspects of the charge. The community could bring action forward. Yes. Under the word, use as a person, yeah, it's quite broad. So if there'd be an individual, an organization, could sue. You know, we hope that is in the case, but, you know, I mean, strange things happen at the moment here. Just another question that we covered the other day, but just want to make sure. So if the agency, they're on time, they do the rules. And there can be a challenge of the rules on their faces worrying whether it was arbitrary and creatures. I didn't know we talked about that. But what if they are not, in fact, enforcing the rules? Is there a cause of action that can be brought in that instance? Interesting question. I don't know if we talk about that. Maybe under existing law, that'd be so similar to the rhythm and damas. It'd be a governmental entity that's not carrying out a lawful duty it should be carrying out, not enforcing the rules. Maybe you could do that. That'd be under rule 75. Or under this bill, if it's kept similar to the line, which we currently have, under subsection A. Perhaps they could take action under that. Just to be clear, there's nothing in the current bill that allows A&R to impose a fee for a fine. So I don't know quite how they would be enforcing that. They don't have an enforcement mechanism in the current language of the bill. OK. Any other questions? Thank you. Great. Thank you. Thank you. You're on it. Thanks. Brian Greerson, Chief Superior Judge, speaking to H668688. I'm sorry. And I would direct my comments to section 594, page 20 of the bill. Section 594, cause of action. And just remind the committee that we don't speak to policy with respect to the bill as a whole. My comments would be limited to 594 and any impact it may have on the court. In brief terms, when I was notified that I was asked to testify, I did review the PowerPoint that was presented to this committee last week by Mr. Marlon. I did also, he provided me with a copy of the memorandum from the AG's office, so I have seen that. And I canvassed, if you will, the judges who normally sit in the civil court or civil division to get their sense of any impact this might have. And I would say that certainly the majority of the responses, if not all of them, were that they did not see that if the bill was an accurate way it was, that it would have a significant impact on the court's workload procedures so we don't see any impact in that respect. I was trying to determine from review of Mr. Marlon's comments as well as the AG's office what the issues the committee might be asking. I was struck in looking at the bill. I noticed in one of the PowerPoints, one of the questions I think raised last week was 594 necessary in light of the fact that Rule 75 is already in existence. And there is a significant amount of case law that has been built up over the years around that rule. So I think the committee, it would be worth the committee considering whether or not any change, any addition is necessary. I would then point out, particularly as it relates to Section B, that is the scenario when a rule has been adopted and the claim by the individual or community that the rule adopted by the secretary has failed to achieve the emissions reduction to requirements pursuant to another section. If you look at Section 3, there are a couple of terms in there that I think will be quite frankly the source, if there's going to be litigation, that will be the source of the litigation. The terms are essentially undefined. And I'm referring specifically, beginning on line 12 on page 21 of the, I'm looking at, Bill has introduced me. If the court finds its rules adopted by the secretary pursuant to Section 593 are a substantial cause of failure to achieve the emissions, there is no definition of substantial cause. And reading along, if the court finds that's the case, if the court finds the secretary is taking prompt and effective action. Again, those are essentially undefined terms. I'm not suggesting that the committee needs to define those, but I will tell you that that would at least appear to myself and the judges who review this that that will probably be the source of the litigation. And as a practical matter, that's what we do. So it's not that there's a burden on us, but I just want to alert the committee that it passed in this form. I can see that as an area that will cause substantial, to the extent that it's a litigation, I can see that it could focus on those areas because they are undefined and because they're relatively new as opposed to the case law that's been built up around Rule 75 litigation. And then when you get into the subsection C, it talks about a prevailing party or substantially prevailing party. Again, those terms are familiar to the court process. They are essentially determined on a case-by-case basis. So a simple question is that if the court says that the secretary needs to take prompt and effective action and gives them a reasonable time to do so, the question may be asked, does that mean that the plaintiff has prevailed by virtue of the fact that they're now giving the secretary more time, or is that substantial prevailing? And again, that would be an area that I expect would be the subject of litigation. So I don't think, I'm glad to answer or try to answer questions of the committee, but essentially we do not see an impact. But those are the areas I can see if it's enacted. That would lead to areas of litigation. And so that's why the committee may want to consider whether they need this section as opposed to the existing one. Thank you. Yes, thank you. So Judge, I wanted to go back to the undefined terms. Yes. And how they're undefined. I'm sort of hesitant to have the legislature define them because I think that's obviously a little bit more of a case-by-case type thing. Is this something that perhaps if we want to make sure that the legislature's intent is followed to a degree to maybe some guidelines or what that means to be helpful, or is that more problematic? I don't want to say it's more problematic. But if you remember my testimony yesterday for a completely different bill, every time you try to define something, it's going to lead to further regulation. So I think if you try to define substantial cause, obviously the court will attempt to follow the legislature's intent. That's what we have to do. But it will still be subject to interpretations by both sides. And the court will then have to determine to come up with a decision around that phrase. I'm not suggesting there might be room for guidance. But again, I think it's still going to be litigated. Right, regardless. That's my sense. And if the court made a decision that we didn't, or if we found that the court was consistently interpreting in a way that the legislature would like, we could amend it along the side of that. And you'd interpret it in a different way. Yes, that's pretty much the way it would work. OK, thank you. A couple of questions. So if we didn't have this provision in there, if we didn't, well, if we didn't include B, and an inventory comes out, the greenhouse gas inventory comes out in, let's say, 2026. And it shows that the agency has not met the target. What kind of guidance would the court have if somebody tried to bring a lawsuit in that scenario? If B did not exist, the remedy, I think, is just to round point out, would be through Rule 75, in other words, directing them, asking them to take it. But if the law just simply provided that B&R, you need to come up with rules, then they have to meet this target. And they didn't meet that target. Trying to find the question here. The concept, I think, of having substantial in here is to explain that, well, it's not entirely A&R's obligation. If the legislature hasn't followed up on its component of it, for instance, that would provide something to look at for whether the A&R rules were a substantial cause of failure. And that's the guidance that they were trying to give to the court. And absent that, it would seem that the court has left. It's more wide open. It's broader as far as what can be argued by plaintiffs. I don't know if you have a comment on that. I don't. I mean, I certainly have to be cautious about offering a legal opinion. Right. And I don't want to get into that area no more than I want to get into policy decisions. But there is a process available under Rule 75 for a review of government action or inaction as the case would be. And that's all I'm really trying to point out. This may provide, or be may provide, something that the legislature as a policy wants to adopt. So under Rule 75, what would be the standard of review for such an action that would be brought? How would you evaluate whether the agency has, and what standard would it be applied? I'm not asking you to apply the standard, but would it be arbitrarian capricious, or would it be? I would have to get back to that. I have not been involved in this kind of litigation. I would hesitate to say what the standard is. Yeah. OK. That's the other part. That's the other part. That's the other part. Yeah, I'm trying to understand, too, if the assertion is we don't need this, I don't really understand what Rule 75 would, how it would truly get us to the same place. And that's the question I think the committee has. Another question. So it's separate. Can you tell us what the standards are for consolidation? Let's assume that under the multiple parties bringing lawsuits, challenging, saying that you did not meet these targets in A&R. I'm not asking for, you know, a lot of it. No, you're asking a procedural question. There is a, there are rules that allow for a jointer of parties, causes of action. There has to be a commonality, but I would prefer you to the rules. But there is a process by which, if it's a common request, we would want to join parties to the extent that it can be, if it's the same issue. Is that initiated by the court, then, if the court sees that they have 10 cases, the court does it? The court can do it, but the parties can do it. In other words, one of the parties to the action can request consolidation. We sometimes see that, for instance, in environmental matters where there's an Act 250 proceeding and there's also a municipal proceeding that has some common issues. So we'll combine them for here and before we'll judge. And so if you had multiple parties asking for the same relief, there are provisions for a jointer of actions. All right, great. Thank you. Thank you. Thank you. So do you want to comment? No? No, I don't have any. You're very thoughtful. Yeah. Yeah. Thanks. And if you're able to address my question, we'll be, you know, at the end of this session. Yeah. OK, great. Thank you so much. Good morning. Good morning. My name is Jen Duggan, and I'm Director of Conservation Law Foundation. And I am happy to answer any specific questions you have, but I did want to address, you know, why we feel that Section 594 is necessary. Great. That'd be really helpful. Yeah. So I think that for a few reasons, Rule 75 doesn't really give sufficient guidance, especially when you're in a situation where the state has not achieved the admission reduction requirements. Typically, you know, under the type of action brought under Rule 75, the question that the court is asking is whether or not the agency has failed to comply with a mandatory duty, which is generally sort of a bright line, yes or no, did they do something that the statute said they had to do, or whether or not they've acted outside the scope of their authority. And so I think that without the Section B in 594, that will make it less clear for both plaintiffs and the state of Vermont and ANR what the obligations are on ANR specifically, how one would determine whether or not the admission reductions are met. Section B specifically points to the admissions inventory as guidance for whether or not the state has met its reduction requirements. There could be a lot of different theories in how to measure greenhouse gas reduction. So that in and of itself I think is important to give clarity about whether we have achieved the reduction requirements or not as a state. The guidance too in this section around remedy and making it clear that the remedy is really limited to sending this back to the agency with technical expertise to do it over is important. And so I think that all of that guidance will limit litigation over all of those different issues. The other thing I would just point out for both Section A and B is that is a notice requirement. So the intent is to really give the agency an opportunity to cure whatever the violation is before litigation is brought. And so that's not currently under Rule 75. So there are provisions of both of these sections that both try to limit litigation to the extent that it's absolutely necessary to make sure that we achieve our climate requirements. Thank you. No, I was just saying I'm glad someone joined me on this. It's a little lonely. You're welcome. Yeah, apologies. It was a little rough right now. Thank you for making it. Could you talk a little bit about consolidation and how that might play out in these kind of cases? I, you know, I can't, that's something I can't address and I'd be happy to get back to with my thoughts on that. But I, you know, I expect if there are multiple plaintiffs that are alleging, you know, a violation under Subsection A, you know, the court does have flexibility in terms of how they hear those cases procedurally. And so, you know, there's an opportunity to think about this, you know, the circumstances, how many plaintiffs, what the claims are and to craft, you know, procedure that is most efficient for the court. And I can get back with you on specific thoughts, but that's my sort of general thoughts on how that would, how a court might handle that. Is that the same as Subsection B as well? Mm-hmm. I would, it would apply to both. Any thoughts on where the terms substantial prevailing in some of those, some of those terms that might, you know, might or might not lead to them? Yes, and I, I mean, I agree that they are not defined and that there is some level of flexibility for a court to evaluate the circumstances of the case, you know, as they, in totality. And I think that for those concepts, like substantial cause and whether or not there's a good faith effort to take prompt action, those are challenging to define and are typically the kinds of things that courts are left to grapple with on a case-by-case basis. So Selina, do you want a few minutes to, should we take a recess? If you miss a, for me, any questions or while we have our witness? I'm just looking, I'm sorry, I'm really sorry. You've probably already covered this. I'm just looking at this proposal of new language from the Attorney General's office. You probably already commented on it. I actually didn't. Okay, that's really my big question. Yeah, we, we have, you know, no concerns with that language. I think that what it does is clarify the status quo. It's consistent with the separation of power doctrine and the status quo. So it's just making it clear that, that a judge will send the whole matter back to AMR and say this isn't, you know, you didn't meet the requirements of the statute, go back and try again. As opposed to issuing an order, that basically is a rule in that order. And so the language changes proposed by the Attorney General. The office make that clear. Yeah, I think I'm good. Otherwise, yeah, thank you. All right, great. Thank you. Thank you for this question. Where we are? Yeah, so we're not waiting for anything from AMR, right? We are, actually. We are, okay. Just simply, there was a question when AMR testified they mentioned they'd like the attorney's fees removed. And the question they were going to get back to us on was if those attorneys, so that if those attorney's fees are removed, does AMR support the bill? If that changes me. And I haven't heard back. Thank you. Yeah, we can take some time for discussion. I don't know if you feel like we have to have that answer. I don't need to have that answer. I just think it's helpful with decision making to know what changes bring different people on board with those people. Well, are we having committee discussion? No. I mean, it felt like they weren't prepared to express a position on the number of provisions of the bill and they haven't come back to clarify that. Yeah, in their previous testimony, I think there were a lot of questions. Well, not a lot, but I don't want to mischaracterize that, but felt like there were a number of questions we asked about provisions in the bill and the answer was we're not prepared to respond to that. And I don't think it's any secret to them that it's trajectory, how the bill is moving forward. So, I wouldn't want to hold moving the bill for that answer because I believe there's... Yeah, I guess I don't know how much that is really our value with as much as energy who has the possession of this to make that kind of determination. I think... What will the attorney's fees be? Well, our input is the attorney's fees work in the context of the judiciary. If they're taken out, does this still work? If it does. So, yeah, well, but maybe we certainly can hear back from them. I just don't think that that... So, my reason for wanting that bit of information was that was the one... So, they may not have had an answer to certain things, but the one place that they expressed concern was the attorney's fees. So, I think it's a valuable piece of information to have of that we take an action based on what they're saying. Well, we can't take an action, but if we make a recommendation to the committee upstairs that this is what we're recommending, does that change the support? So, I think related to that is getting a little more information on consolidation as well. Because my impression at least is that there will be very common questions. I mean, there's an inventory to the target and they either didn't make it or not and then you argue if it's a substantial cause or not, and if there's been product and effective action. I mean, there's a kind of limited scope of what... I mean, yeah, it would be litigated, but it's limited scope as far as there wouldn't be multiple cases because they'd be answering the same question. You may not be consolidated, but whatever case goes first the court answers that question and that's inviting. Other cases are bound by what that first court has decided in this particular case. So, my point being that it's not like this is inviting dozens of cases. It seems to me still that this is opening the door for possibly three cases over the next ten years. So, I think that part is relevant for consideration of how much of a risk financially with the attorney's case. And just going back to that, I mean, I'm not necessarily hearing you say that, and we should wait and find out from them, but just I think the same question would then apply to all the witnesses, right? Because I heard the attorney general's office say that the attorney's fees are a really important accountability measure in this bill. I heard that from the Conservation Law Foundation who brought you know related cases in the past and other jurisdictions, and so I think we heard one witness saying they wanted them to remove, but I think we heard a number of other witnesses speaking to the importance of the attorney's fees as sort of the teeth of the bill, really, in a lot of ways in the end of the day. I also don't know our time frame, whether we're being asked today when do they want our recommendations? As soon as possible. You know, whether we get to a type of thing, you know, but yeah, I mean, I coach IC, but I I mean, I think our consideration is is this necessary and why? I mean, I think that's one of the questions, you know, and attorney's fees I think also in terms of attorney's fees access to justice, you know in terms of what we speak about sometimes for me it's helpful when we have bills from other committees to say, okay what's the role of our committee and you know, certainly access to justice which hopefully is up there somewhere but it's I think that's important Well part of my thinking and why I asked the question earlier around Martin's question of consolidation is there are a number of entities around the state that fall into different jurisdictions countywide that have climate action committees and they're pretty vibrant groups around in those respective areas and I could see situations where their climate action statements and resolutions and some of the ones that are coming to town meeting that I'm aware of so far could bring them to a point of questioning the intensity of the agency if the local municipality is saying well we made a decision that we're going to go at 80 miles an hour and the agency said we're only going to do 50 not making the metaphor that might be cause especially if within their mandate and their rulemaking they said they were going to try to achieve it at a faster rate and I could just sense some of those folks just knowing some of them it could get pretty snarly or snarky maybe so the fees would be important no especially the fees would be important it would be important I think for those individual entities because they would be hiring their own attorneys to other thoughts on fees that's the only part of this that we're dealing with really is fees right now we're dealing with this one particular section so this cause of action and then the so Matt I'm hearing some support and then I'm not hearing anything else at this time you're looking at a guy with a lot of questions but I'm not ready to what are your questions first of all so I'm back on page five right and I'm looking down at the bottom section three where greenhouse gas reduction and it started with goals and now it's required requirements right is that even attainable and how's this being paid for and then I'm going to go into a whole mess of other questions but I don't think we're ready to go I don't think I'm ready to go there yet because I'll go right from then and then I'm going to jump back to four page four and I'm going right to the top of the page line two by implementing climate mitigation adaption and resilience strategies Vermont will also position its economy to benefit and thrive from the global transition of carbon neutral whatever that word is and that guy can't pronounce it and national and international efforts to address the crisis which I know we have we have a big situation out there but balance and affordability is I have some real concerns with this you're in the in the findings you're talking about what's that you're in the findings I don't know where I am yet Matt I'm trying to follow I skimmed over this really really quick okay and now when we started taking a little bit more testimony this morning and stuff it's like okay my radar in my brain has gone up more how this is going to affect municipalities businesses and when I read motors and stuff like that like I don't think everything is going to be EV in this state as fast as what people think and I remember I remember it wasn't too long we've gone a lot older than you but when electricity was an evil enemy in the room so so can I I appreciate your concerns however and it's tricky because our jurisdiction so I think what we need to do is so the committee of jurisdiction has said this is good policy and sure you have questions but in terms of this is good policy and so our task is okay so how does it in terms of the judiciary and the cause of action you know because it doesn't make sense which I don't know answering your questions but that's a part of this room I need to turn back into the lawyer side right that I'm not I guess you can oppose this bill in the end but the limited question as I see it is do we need this cause of action in here or not what is the benefit of having this cause of action doesn't work as far as the courts and if we didn't have the cause of action in here it would be much more wide open that doesn't mean that things couldn't bring lawsuits there's rule 75 there's an administrative procedure at all things that we've told us about what that provision is trying to put in here is sidebars restrictions to actually narrow what that cause of action is so one could oppose this bill and still find well I'd like that the cause of action at least is in there limiting what litigation might result so that's kind of how I look at it I of course I support the bill as well but I also support not just opening the doors for unguided litigation and that's what this component does and I think that's what we're trying to do this is a weird place to put yourself I had to do it a lot upstairs in appropriations because you'd get a bill and you'd look at it you'd completely disagree with the policy side but up there all you were doing was looking at the money and is the money there for this bill and should it be spent there and so you had to almost like put to the rest of what's there and sort of focus on what the jurisdiction is in this case we're not even ever going to get the bill so you don't even have to take a vote in this committee about this whole bill the whole thing that we're doing is just weighing into that one little section so we might say we recommend that you keep this cause of action in reasons that Martin and our witnesses have stated where you don't or we keep, you know, yes the terrain speaks because accountability addresses or or no so it is you know, I did thank you Matt just to follow up on you know Matt's point of jurisdiction and the point that you brought us back to too is the work we did last year on our jurisdiction because I think that any time that for me when I get into that cloudy area I can refocus fairly easily by going back to the board and at least it helps to refocus because it's easy to get to get into that odd zone I mean I'll say what I'm thinking it's not really an endorsement or criticism at this point I understand the arguments for the reasonable attorney fees I don't it's not like a massive payout by the state but I do think there is the idea that well wouldn't you like to be the lawyer that successfully sued the state of Vermont in this case but I don't think that's a major concern as far as whether we need the course of action cause of action it's not something I guess from what I'm understanding is this is directing what type of legal action could be brought against in a more kind of thing limiting it from just a very rather open to a specifically you can only go after as if this doesn't go and in that case I guess I would support that but just for clarification purposes I just wanted to be known out there that I don't know whether I'm for this or against this I just need to do a lot more homework on it myself thank you I apologize for missing the first part of this testimony or a class action lawsuits covered at all or is that already inherent in the rules that are highlighted in the cause of action section like rule 75 we might want to have a different rule isn't it is it a different rule? I think that class action lawsuits are outside the scope of the cause of action section so if so if people wanted to bring a class action lawsuit they wouldn't be able to in this I think it would depend on what the class action lawsuit would be that's class action lawsuits are typically focused on personal injury so the remedy that folks would be seeking would be for damages either public health property damage so they're asking for a monetary compensation of injury this cause of action section is limited to where the state of Vermont has failed to comply with the statute and there are no financial penalties there's no damages the remedy is limited to remanding it back to the agency to do it over and then reimbursing reasonable attorney fees if a plaintiff prevails do you want to add anything to that? I had one thing I think what Ms. Dugan said is accurate class action is usually a very different context but remember that under subsection D is very clear that nothing in this provision limits the cause of action so you get what you get in the bill and you keep every other option there's just a question is this going to be one that we would take as a vote as a committee or will this just be something that we send up and say this is what I think? it's just a recommendation so because we don't have it it's not a formal vote if we went around the table and everybody said it would be a recommendation yeah it could swear a recommendation we would still recommend not an actual vote I assume but we would still send a recommendation up there how many of us are against right? we could do it a number of ways we could do a show of hands we could do just consensus we could do thank you why don't we take a 15 minute break and then we'll come back to this then we'll continue our discussion