 Thank you, Jude. Good morning, everyone. Luke Marland, Director of Ledge Council and Chief Counsel to the General Assembly. And I am here to continue our discussion of H688, the Global Warming Solution Act. Can everyone hear me okay? Yes. Great. And I suggest we follow a similar procedure to yesterday where you have the paper copy of the bill in front of you. I have a PowerPoint and you can follow along on that PowerPoint on your screens. And as the chair indicated, I think we'll start with looking back at the tail end of what we discussed yesterday, looking at the final few sections of the bill. And then we'll discuss two other issues. One is the delegation doctrine, which is a constitutional issue. And then secondly, rulemaking, the process and the limits on rulemaking. Before I jump in and share my screen, are there any questions before I begin? Great. So as you will notice, I'm pulling up a PowerPoint and I think all of you should be able to see that. So let's begin by reminding ourselves of the steps and how this bill works and how the pieces fit together. This is the same visual I showed you yesterday. You remember there's mandatory greenhouse gas reduction requirements, Vermont Climate Council produces the Vermont Climate Action Plan. Then there's rulemaking by A&R to implement that plan and achieve the mandatory greenhouse gas reduction targets. And finally, if that does not succeed, there's a potential for a cause of action. So let's begin by looking at some of the sections we went through very quickly yesterday. The first is section five. It begins actually at the very bottom of page 23 of your paper copy of the bill. Excuse me, and what section five does is it has supplemental language in session law concerning the rulemaking process. And if you flip to page 24, what section five mandates is that number one, A&R before it begins a formal rulemaking process and before it submits its draft rules to ICAR, the number one it provide to the Vermont Climate Council not less than 45 days prior to submitting the proposed rules to ICAR, both the proposed rules and the detailed record supporting those rules. Number two, that it provide to various committees of which you are one, the same proposed rules and the detailed record supporting those rules not less than 30 days prior to submitting the proposed rules to ICAR and number three on page 24, file those rules with ICAR on or before July 1st, 2022. So what this session law language does is it adds another layer where A&R in essence has to run its proposed rules and the basis for those proposed rules by the climate council and by various committees including your committee before it begins the formal rulemaking process. As the chair pointed out yesterday, you don't vote to approve those proposed rules. It's an oversight function. But the assumption would be that if you look over those rules and there's some issue you wish to discuss with A&R, that is a time to do so before the rules are submitted to ICAR. Are there any questions about that? I don't have a good sense of the timing of this. Is this something likely or is designed to happen during a legislative session so that committees would be meeting? And if we thought really, there was something compelling that we might even consider a legislative adjustment at that point. Yes it is. Let me jump ahead actually and show you the summary of the time frames. And this is the same slide you saw yesterday but this is the time frames contained within the draft bill. So you'll see the third bullet point, the council adopts a plan on or before December 1st, 2021. Then there's a period for A&R to develop rules and you'll see that they file with the council 45 days before and file with the committee's 30 days before and then the next bullet point before they're filed with ICAR on July 1st. So you see the dates and these are approximations but it would mean that the rules go to the council early to mid-May so you still might be in session and to the various committees maybe late May to June so you might be in session, you might not but I think you would be able to have a meeting if necessary. That timeline for A&R to develop rules seems pretty tight like five months. I'm trying to remember the exact number of days but I think it is generally requiring eight months. That sound right to you? No, I think generally requiring when you're right, the minimum time period when you add the statutory minimum time periods up is approximately four months. So this does fit within that. It is extremely aggressive. As I said to you yesterday, it is a very aggressive and optimistic schedule without question. It does comply with the time period set forth in law but it is a very, very tight schedule. Okay. Thank you. Going back to section five on- Can I make- Yes, can I make- Can I make- Just, this is helpful. Mr. Chair, my kind of overriding concern is that what we are discussing now assumes that two scenarios. One, the council has met and done its work and has produced a document and a plan and the rules are being put forward or the council has not met and in the absence of the council's meeting and in the absence of a product, the agency is putting forth rules in the absence of the plan process. So I kind of look at this law, this, what we're looking to pass is two things. One that preparing a plan and the other one is a default that if there is no plan and so it seems to me that's sort of clear. So I guess the question is if the council isn't called, there should be a mechanism like there are occasionally in other councils for the members of the council to call themselves to order to carry out the task. That's my question. I don't believe the bill provides for that. And if it, maybe it does, but I didn't see it. Thank you. So in answer to your question, the bill does not specifically provide for that. You are correct. Which then, Mr. Chair, it puts us, it sort of somehow I look at what the Elkar experience, which I was glad that outlined if anyone is interested and the current problem we have now with the absence of a telecom plan, it's three administrations. You know, three administrations have participated in not preparing the 10 year plan. And we now are looking at what do we do? And we have a telecom, we perhaps have telecom money available to spend that we have no plan to spend it with. And we are in a dispute over how that money should be spent because we have no telecom plan and someone is gonna make, and that is an unfortunate situation to be in. Thank you. Well, and I think of another, so that's one kind of jam we can get in on these kinds of things. I also think of the comprehensive energy plan. So, which brings up for me two questions. We don't need to get stuck on these, but one is what's the role of the comprehensive energy plan? I know it can be considered by this group. But it does seem maybe somewhat duplicative, right? The state does one every six years. The last one was much more, I'd say forward thinking and sort of assertive about what we might do. There were prior versions of that CEP that were more of an inventory of current practices as opposed to a plan for the future. So we'll have some sorting out to do, I think to figure out what makes sense. And then we just also had the governor's climate action committee, I think it was called develop plans. And I'm not sure where they have gone. And if the governor's climate action committee is dispersed now or it's still operating as well. Okay. Thank you, Mr. Marlin. Returning to page 24, we're still looking at section five, B in the middle of the page. And what B does is it states that upon the adoption of the action plan, which if you remember from yesterday must be adopted on or before December 1st, 2021 by the council, the JFO will do an analysis or hire a consultant to do the analysis of the economic budgetary and fiscal costs and benefits of the plan and submit that analysis to various committees. Section six, at the bottom of page 24, and then it continues on the top of page 25, simply states that the members of the council must be appointed within 60 days of the act becoming law. And the council must begin to meet within 30 days thereafter. So it's an effort to get things rolling quickly as far as the council being appointed and then the council beginning to meet. I'm pausing just to see if there's any questions. Otherwise, I'll continue. Sections seven and eight begin on page 25 and then continue on the next page. And this is existing law. So this is in session law. This is amending existing statutory law. There's a state energy policy that forth in title 30. And if you look on page 26, a state comprehensive energy plan and the amendments, the language that is underlined, basically states that these, this policy and this plan have to conform to achieve the emissions reduction requirements we mentioned yesterday and be consistent with the action plan that we discussed yesterday. So really it just connects the existing law about the energy plan and the energy policy to this new requirement of reduction in emissions and the newly established council and the plan it will develop. Any questions about that? Section nine towards the bottom of page 26 contains an appropriation. An appropriation in the total amount of $972,000 from the general fund to ANR to pay for three positions. As you'll see on page 27, section 10, it states that three positions will be established. These positions, according to the JFO fiscal note would be a staff director, an attorney and a data analyst who would support the council and its functions. And this appropriation of 972K, if you read the language in section nine is meant to cover two years. So it's appropriated in the first year, but it's meant to pay for the costs of the council for that year and the following fiscal year. Any questions about that? And then finally. I do have a quick question on that one. So it seems helpful to lay out the total cost as opposed to having anyone be surprised that there's a significant year two expense or something like that, but don't we appropriate just annually? So I'm not sure how the bill proposes to lay out two years of appropriations. Do we do that? It does do that in this bill. I think it is a little unusual. That's something maybe you could have a conversation with JFO about or the chair of house energy, why it was done that way. Okay, thank you. I assume it would be appropriating year one and then carry forward to year two and be used in both years. Great. The effective date is upon passage. That's section 11 on page 27. Are there any questions about the language we've looked at so far? Well, then let me show you already showed you this slide, but this was a summary of the time frames set forth in the bill. So this gives you an overview of the time frames and the various stages. And we already talked about them so I won't go through them again, but this is something that's available to refer to any time as we discussed it is a tight timeframe. Any questions about this? Okay, then let's move on. If you remember at the conclusion of yesterday's presentation, there were three issues that the committee thought it might wanna hear more information concerning and discuss further. And that was the delegation or sometimes called the non-delegation doctrine, the rulemaking process, and then finally the cause of action. And we're gonna do the first two now. And I think the cause of action might be something that you look at starting next week. So the delegation doctrine is a constitutional doctrine and a constitutional issue. I think all of you are aware of the concept of the separation of powers and pursuant to the Vermont constitution, the supreme legislative power is vested in the general assembly. As the Vermont Supreme Court has explained, the legislative power is the power to formulate and enact laws. The executive branch's role is to enforce and apply those laws and the judicial branch interprets the laws. And it's a key principle underlying our system of government that these three core powers or core functions are kept separate. However, sometimes there's an overlap or blending of these functions or roles. Although the general assembly is constitutionally prohibited from delegating its supreme legislative authority to another entity or branch. Sometimes there's an overlap or blending of powers or responsibilities and the Vermont Supreme Court has recognized that this sometimes is necessary to allow government to function and to respond to complex challenges and problems. And I think that three cases really explain how this dynamic works and how statutes might be analyzed by the Supreme Court if there is a delegation doctrine challenge. And those three cases are the Waterbury case from 1938, the Hunter case from 2004 and the MVP health insurance case from 2016. And I'll very briefly give you a little information about those three cases and then tie them together in at least my legal conclusion as to how the delegation doctrine would apply to this bill. So in the Waterbury case, which is from 1938, the Vermont Supreme Court held that a law that enabled the public service commission to order the apportionment of the expenses of flood control projects between the state and various municipalities was unconstitutional because that law failed to provide any policy or plan or sufficient guidance as to how that apportionment should be determined. So this was a case where the Supreme Court struck down a law under the delegation doctrine. Hunter v. State is a Vermont Supreme Court case from 2004. In this case concerned the authority of the Secretary of Administration and the Joint Fiscal Committee to implement a deficit reduction plan to address a revenue shortfall when the General Assembly was not in session. And before the court reached its holding in that case, it emphasized that in a modern state, in our modern government and all the functions that our government is entrusted to carry out, there will be some overlap or blending of the powers of the legislative power and the executive power and that this can be permissible, especially if necessary to allow government structures to respond to complex challenges and to function in our modern world. The Vermont Supreme Court also emphasized that the powers and functions of government sometimes defy simple classification as merely legislative or executive and that as a result, the concept of the separation of powers is quote a forgiving standard. And finally the court stressed that anytime it would be considering a constitutional challenge to a statute, it starts with the assumption that the legislation is constitutional. The court then proceeded to hold that the law at issue was constitutional because the Secretary of Administration only had authority to implement the deficit reduction plan when the official revenue estimates were had declined by 2% or more. The General Assembly was not in session. The plan was necessary to ensure a balanced budget and the law also provided guidance by requiring that the plan must be designed to minimize negative impacts and reflect the priorities set forth in the budget the General Assembly had adopted when it was in session. The third case I wanna give you a summary concerning is MVP health insurance and this is a case from 2016 and this was a challenge to the statute in 8VSA 4062 which empowers the Green Mountain Care Board to approve or deny health insurance rates in Vermont. And that's that. Excuse me, Senator Rogers has joined our meeting. Hello all, sorry to interrupt. That statute provides a following criteria for the Green Mountain Care Board to apply. It states that the board shall determine. I'm sorry to interrupt. We have Senator Rogers sort of passing through the meeting and if we could just pause for one minute. We had Senator Rogers taken up, we started out yesterday and left it open on the amendment to 227. And if the clerk could finish the roll call by calling Senator Rogers' name to allow a vote, that would conclude that action. Sure. Senator Rogers? Yes. Okay, I guess the other question you might have, Mr. Chair, if you have an asset, is whether or not Senator Rogers wants to be on the bill? Yes, I'd be happy to have my name on it as well. Thank you. Great. Thank you very much. Thank you guys for all making that possible. You're welcome. Okay, thanks for that very timely. Sorry for the interruption. No problem and I'm gonna listen for a while, but then I've got to head off to judiciary. Okay, great. Sorry to interrupt, Mr. Martland, if you could, we, you were in the middle of the MVP case. No problem and thank you. So the final case I wanted to summarize was the MVP case. And as I was saying, the statute at issue in that case, concerned the authority of the Green Mound Care Board to approve or disapprove health insurance rates. And the criteria set forth in that statute were that the board would determine whether a rate is, quote, affordable, promotes quality care, promotes access to health care, protects insurance solvency, and is not unfair, unjust, inequitable, misleading, or contrary to the laws of the state. So the argument in this case was that the statute was unconstitutional because it delegated the legislature's core lawmaking authority to the Green Mound Care Board. And the statute failed to set forth sufficient standards or guardrails to guide the board's discretion. The Vermont Supreme Court rejected that argument and upheld the statute. And the Supreme Court held that the law was constitutional because the Green Mound Care Board's discretion was curtailed by considerations of affordability and promotion to access to health care and other factors. And although those standards are, quote, general and open-ended, unquote, they reflected the practical difficulty of establishing a more explicit set of standards. And so if you apply these three cases to H688, I think there's a very good argument that the bill's constitutional. You never can guarantee a result if a case is litigated. So I can't, and I don't believe any other attorney could say with absolute certainty what the result of litigation would be. But I do think that applying this precedent, there's a very good argument that H688 would be deemed constitutional, at least in light of a delegation doctrine challenge. And the reasons I say that are as follows. I think that the bill contains multiple criteria that define what the plan must contain and what objectives, the initiatives, programs and strategies set forth in the plan must seek to achieve. That the bill requires that ANR's rulemaking must be consistent with the plan and with those specific initiatives, programs and strategies and with the objectives and criteria. And in addition, and this is something that's important not to forget, the plan and any resulting rules have very clear numerical targets that must be achieved. And so if you look at those objectives and criteria and targets in comparison to the cases we just discussed, I think that there's a strong argument that these are more specific and more focused than for example, the criteria set forth in the law upheld in MVP health insurance. And I also would stress that as I indicated in the Hunter case, the court starts by assuming a bill or an a law is constitutional. So in light of this precedent, what's in the bill and in light of this background we've just discussed, I think it's a strong argument that H688 would survive a delegation doctrine challenge. However, the idea separation of powers is not just a constitutional construct or issue, it is also a matter of policy. And what I mean by that is now wearing the hat of your attorney, your chief counsel. My job is to defend the powers and prerogatives of your institution. And what you're doing in this bill is handing a great deal of responsibility but also a great deal of power to the executive branch to promulgate rules to achieve an objective. And of course, you could do this through other means such as example, lawmaking. And so although I think the bill is constitutional, it does raise a policy issue for you to weigh as you think appropriate, of whether you want to hand over all this authority and responsibility to A&R to achieve this important goal. So one thing is, can you send the committee and Jude those three cases, in case people want to read more carefully? That you want the actual case decisions? Yeah, thank you. I believe I can. I don't know if there'll be a link or a PDF but I believe I can. I'll look into that. Okay, great. Another quick question. Mr. Chair, Senator McDonnell. Hey, when I say I'm not a lawyer, because what I'm not, the general assembly in this bill is ceding the power to make a plan to a council. And that plan when written would be available for the legislature to see. And the legislature could intervene and pass legislation that prohibits any summer, all of the actions in the plan produced. And thereby fort any rules to be promulgated. This and the Green Mountain Care Board ruling granted the Green Mountain Care Board authority to make a bunch of decisions. The only authority being granted in the first part of this bill is to the council to make a plan. And then there's a second part of this bill, which is for the administration to make decisions to make rules to carry out the plan that the legislature has already seen. So the validation of the Green Mountain Power thing, I think is a different kettle of fish. So it only, if the administration makes rules in the absence of this council's plan and we the legislature from the get-go say that's okay, by golly, that might be a dangerous delegation. So it goes back to my point that it goes where it goes. And perhaps Luke would comment on that. Thank you for indulging my comments. I think it is a slightly different kettle of fish as you put it, slightly different construct. But I think the constitutional analysis would be similar is does the legislation, the law give sufficient guidance and constraints to the executive branch in carrying out its duties. And in this case, H688, I believe it does, there is that intermediate step of the council creating the plan, you are correct. But I think that gives guidance and then A&R is bound to try to follow that guidance and achieve those objectives. And of course, the greenhouse gas reduction targets are set forth in statute. And so I do think that there's a strong argument that there's sufficient guidance to render the bill constitutional. I don't think it being slightly different in the structure would change that analysis substantially. I appreciate that clear delineation or subtlety that Luke has pointed out. But we have the in statute right now, the in statute, the global warming statute that Luke just mentioned, and no rules are being promulgated. Are you talking about- And if they were, if those rules were being promulgated, we'd be having a different discussion right now if we knew what those rules to be promulgated were and the legislature would be able to weigh in. Thank you again for indulging my comments. I think you lost- Yeah, I just, well, Luke, please go ahead. I have a question. Okay, did you have a question, Senator Bray? Well, I'm just gonna make sure I understand what Senator McDonald's alluding to. When you say we have something already, are you referring to the greenhouse gas targets that we already have written into law? They may not, that hasn't somehow inspired rulemaking in order to achieve them. Is that kind of what you're saying? Why should this be any different or- Yes. It's different because currently there are goals as opposed to mandatory required reductions that must be achieved. So that's a difference. And of course, this bill gives specific rulemaking authority to ANR to implement or achieve the plan. Also, ANR already has rulemaking authority in many contexts, but this bill gives them additional authority to make rules to achieve what's in the action plan. And gives them a direct stem to make rules in the absence of an action plan. If necessary, correct. You are correct. If the council doesn't meet or the council does not develop a plan, ANR still must proceed. You are correct. And today, in theory, by that reasoning that the administration has the authority to write rules to carry out the existing statute. They haven't done it. I don't know if it's nearly as clear and that's, I always say that you should check what I say, whether it's legal analysis or anything else. So that's something you may wanna get input from ANR. I don't think ANR's authority to promulgate rules to address climate change as broadly as set forth in this bill is nearly as clear under existing law. I think you can make that argument. I don't think it's nearly as clear. So I don't agree with you in how you just characterize that. Thank you. I'll have to learn how to characterize it more accurately. And thank you very much. Well, to follow up on Senator McDowell's question, when the legislature expresses a goal is, I can't imagine that maybe we'd say it's like a semantic difference that we have a target, illegal target as opposed to a legal goal, but is one, is there law that says, well, hitting the target is different than hitting a goal? Well, there's an important difference. And I think you folks see that difference all the time in the context of the word may or the word shell. So may is optional. A goal is perhaps optional. If you look at the language of 10 VSA 578 currently, it certainly doesn't say shell achieve these targets. That's one of the changes this bill makes. So I think current law can be read as discretionary or optional, particularly as to the 2050 target where you have that supplemental language about it being what does the current law say? If practicable using reasonable efforts, that says 2050 reduction requirement or goal, I think the bill changes all of that to shell making the mandatory and removing any of the language that seems to indicate it might be discretionary. So I think there's an argument that under current law, it's not mandatory. I think the bill makes it much, much clearer that those reductions are mandatory and are required. I'm looking to see if there are other committee questions. I have one Senator Campion, anything? Or Senator Perron? So, Luke, can you walk us through one thing that seems different than us writing a law that then lays out requirements and guide rails around, guard rails around how they would be implemented? For instance, addressing rural communities or things like that. But in this case, we do a sort of a handoff and there's a panel that writes a set of, writes a plan. And they're not, and then that panel hands off the plan to ANR. So there's a level of, there's a two level, two steps in the process. And I think, to be frank about it, I'm a little concerned that the legislature which has this lawmaking authority, sole lawmaking authority unless we delegate with direction. Now we hand that to essentially civilian panel and they write a plan and that plan goes to ANR to direct ANR's operations. Why doesn't, why is the legislature not required to sort of quote unquote, own legally that plan? Why shouldn't that, for instance, it could be written by others, but if we ratified it, then it would seem like once again, it would be the legislature speaking directly to an agency and delegating directly. You put your finger on, it's a complex issue and so bear with me as I try to walk through my answer which will be a little complex. But it's something that, it's a good question that many folks have asked in one form or another. And if you remember a few moments ago, I said there's a constitutional issue or argument and then there's a policy issue or argument. So I don't think that the general assembly creating the council or giving the council authority to develop the plan changes my constitutional analysis. I still think there's a very good argument that the bill would survive challenge on the basis of the delegation doctrine for the reasons I previously gave. But you're also putting your finger on what I call the policy argument or issue which is do you want to do that from a policy perspective about handing over so much of your authority. And that's a policy argument and decision for you to make. So I won't comment on that. But you've also raised the issue, in essence I think you're getting at, well, couldn't the general assembly put itself back in the process at a later stage? Couldn't the general assembly vote to approve the plan before it's final? You could, you could change a bill to require that. You certainly could. There's been questions also could the general assembly have to vote to approve the rules once ANR develops those rules. Right now there's just sort of the requirement that ANR submit the rules to certain committees for review, but there's no requirement of approval. And there's been questions about, well, couldn't you insert language that the general assembly has to vote to approve those rules either before they go through to ICAR, before they go through the process or before they're final? Well, there's no current mechanism in the Vermont Administrative Procedures Act that allows the general assembly to approve administrative rules. You could not withstanding current law or you could change current law to allow that for this situation. So you could do that. I think it raises substantial procedural questions, legal questions and even constitutional questions. And I can talk about that in more detail, but I think that would raise some serious concerns. I'm sorry, may I ask a question of clarification? Yeah. Senator Campion, please. I'm not sure if you wouldn't mind repeating what exactly would cause the constitutional questions? As to the general assembly voting, having to vote to approve the rules? Yes. Okay. Well, I think there's, let's get the constitutional moment. Let's talk about procedural. So what you do in this bill is you hand off a great deal of responsibility. Right. And also a great deal of authority to the council and then to A&R to address climate change and global warming. And as a procedural matter, if they come back with a set of rules to carry out that mandate, how would you vote to approve them? Would it be a bill? Well, a bill would also have to go through committee, both bodies, be presented to the governor like any other bill. Yes. And it would be a bill to approve the rules. Why don't you just pass the bill doing what the rules would have done in the first place? I don't think you can do it through a resolution because a resolution according to law from the Vermont Supreme Court and the US Supreme Court cannot be legally binding. It cannot alter the legal rights or duties of a party. So I don't think you can give your stamp of approval via a resolution that has an illegal weight. As I indicated, if you did it through the bill process, why not just do a bill? In addition, so that's the procedural issues. It raises a constitutional issue and this gets a little complex. So hear me out and then I can explain it if I wasn't clear. If in H688, you're handing over this responsibility and this authority to the executive branch, in essence, you're handing it off to A&R to do the rules, to achieve, to address climate change. If you hand it off, I think it's problematical to try to then take it back and to say we're giving it to you to achieve this goal by rulemaking. Oh, but by the way, we have to then approve what you've done. And I think it's not necessarily clear. I don't think it's something that's been litigated. It's something that attorneys may disagree, but to me it would raise that constitutional concern. So this is getting a little bit in the weeds, a little bit murky, but I think you understand what I'm trying to convey. Yeah, thank you. Mr. Chair. Yes, please. There are two examples where the legislature directed the administration to come up with rules or rules that the administration would recommend that be implemented and that they had to come back to the legislature. The first was in York County, Addison about changing the 10 acre loophole and establishing sewer disposal rules. And the legislature demanded that the pass into law, that the agencies would come up with the rules they intended to put forth and then hang on to those rules so the legislature could review them and act on them or not. And that such actions had to be taken in a certain time. And the agencies did that, the legislature looked, the legislature blessed by inaction those rules and they were introduced and took effect. That was case one. Case two was more recently when the legislature directed the agency to the PUC to come up with rules that they would propose to regulate net metering issues. And that was passed into law and the PUC failed, failed to write those rules and submit them to the legislature in the timeframe. And when the legislature went home, the PUC then used the rules that they had not delivered, the proposed rules they hadn't delivered on time to implement rules that the legislature had not offered and authorized and Elkar objected and said that these were not properly done, they had not followed the law and the utilities all went and accepted the rules and changed their bookkeeping and put new things in practice. And then the legislature had to cave because undoing all those things would have been timely and disruptive and et cetera, et cetera. There is a precedent for doing it and there is also an administration's ability to not comply with it. So it's not an unprecedented thing to demand to see the rules before they're implemented and sometimes those plans work and sometimes they go awry and I feel that we are on this bill faced with a similar choice on how to move forward. Again, I think thank you for allowing me to make those comments in this situation. Senator Perry. Yeah, I mean, just as general policy, I don't tend to like how much power the legislature turns over to groups and writing these rules and not having stuff. So I'd be uncomfortable just from a policy perspective, I'm not taking this issue that this bill is taking in but just from generally, I don't like it when we do things like this. So I wouldn't be in favor of allowing them to write rules and go right to the administration without us having some oversight of that. Okay, thank you. Senator Campion, anything? Okay, I do have one. Well, I would just say, yeah, please. I feel that I have a similar concern to that of Senator Parrance. Not checking in, not giving that kind of power away is also concerning to me. Well, I also, I'll fess up from my perspective as a legislator, it does seem very convenient to rather than continue to quote unquote own the challenge of addressing climate change to do this handoff to a panel and then to rulemaking. I mean, I think we make ourselves absent out of one of the more critical policy and policy choices and we'll make in our legislative careers probably. And I shouldn't just say, sorry to interrupt, but just wanna add that it's not the power that I'm concerned about, it's just we're elected to make these decisions and play a role to represent our constituents' values and views and positions and to delegate that doesn't feel right without us being somehow involved. Okay. I have a basic law question. So is there any role of federal law that influences this question, whether we're talking doctrine itself or does somehow federal law find its way into Vermont on this issue? Or is this an entirely we're self-contained, it goes no higher than Vermont Supreme Court and we need to look no further? Well, this is a state law and I don't think it has any federal counterpart. So as far as the rule making process goes, it would be a state law and state rules applying or carrying forth that law. So I think this would be very much a matter of state claims and state constitution or state law that's being interpreted in the state courts. I think that to address climate change or might be rule making in specific areas that has a connection to federal law. So because you might have to address so many different areas or sectors of the economy, for example, that there might be overlap there. But when we begin to talk about the rule making process and administrative law in Vermont and the cause of action, when we talk about that, I think really that's a state because this is a state law. Okay, Senator McDonnell? Yes, Mr. Chair, if the administration can move forward today and promulgate rules based on our climate goals, then perhaps they should do that. And the legislature can, so state and we can comment after they've come up with the rules. But this bill says the way to do it is to put together a committee as set forth and for that committee to meet and to take testimony and propose solutions that would be put into rule. But in that route, that route of action as set forth in this bill provides the legislature with an ample opportunity to participate way in influence or curtail or endorse that set of actions. If this law passes and that committee does not meet, then we've spent three or four years to get to the point where the administration could do what it could do now. And right now, the administration has not chosen, has not moved forward, does not have a plan. So why if we're gonna possibly get to the status quo four years from now, that's an oxymoron, I believe, but getting to the status quo four years from now, we should have a remedy in this bill to at least allow this commission to meet on its own volition if it's not called to meet by the administration. Right, okay. So this has been very helpful. I mean, I think there's definitely room and need for more work in this area, but this has been a good, a deep enough introduction into the topic that I think it will come back to this. So I know we have another provision that we wanted to see if we could get to and we have about 20 minutes. Let me just ask Mr. Martland if that is adequate to talk about the rulemaking information you wanted to share with us today. If it's not, then I think I'd rather adjourn and not have that split over some today and some next Tuesday. I think it is sufficient. I might speed things up a little bit and I think some of you know some of the things I'm going to touch on so that might be just fine. Do you want me to begin and give it a try? Or would you rather wait until next week? Either option is fine with me. Well, let me look at the committee. I'm fine doing 20 minutes more of work before we adjourn with floors at 1130 or next one. Let me check it. Next one. Yeah, that feels good to me. If I could get a possible just 10 minutes before we start on the floor, that would be great. Great, okay. So let's aim to adjourn at 1120. Thanks Mr. Martland, off we go. Thank you. I'll begin to run ahead and if I'm running too fast or if I'm unclear just please stop me and ask a question. So let's look at rulemaking and I'll go through this relatively quickly but the rulemaking is set forth the process at least is set forth in Vermont's Administrative Procedures Act which is title three, chapter 25. And as we just discussed, this bill is exclusively a Vermont law. It's not applying a federal law, for example, it's a Vermont law. And therefore I think that the Vermont Administrative Procedures Act is very relevant, but there's also federal administrative law that I don't think is relevant. So there's in general no applied authority of an agency or department to make rules. An agency or department must explicitly be granted that authority. And of course this bill does that as to ANR. Rules are binding on the person's day impact and therefore have the force of law just like a statute. However, you can see in this slide that there's certain things that rules can't do. For example, they can provide for penalties, fines or imprisonment. That's not authorized in law. It can enlarge the authority of an agency and it can allow an agency by rule to issue permits or licenses unless otherwise authorized. Now the rulemaking process briefly and I'm going through this because it's, as we talked about, ANR has tremendous responsibility in the bill but also there's a tight deadline. So the rulemaking process is that the agency pre-files rules with the Inter-Agency Committee on Administrative Rules, ICAR, and that is an executive branch body staffed by executive branch individuals and that body reviews the rules for consistency with law and the governor's policies, et cetera. Next, the proposed rule is filed with the Secretary of State and there's a requirement that this filing include various information and documents, including an analysis of the economic impact, obviously the text of the proposed rules and various scientific information upon which rule may be based. Now, you'll remember in the bill there's also a requirement that ANR develop and file a detailed record concerning the basis for its rule. Next, the Secretary of State will publish notice of the proposed rules, both online and in print and then the agency will hold public hearings and provide a reasonable opportunity for stakeholders and members of the public to submit their viewpoints or comments or data and how long this process can take and vary widely. When the agency has developed a final proposed rule after that public engagement process, it will file that with the Secretary of State and with Elkar and we'll talk about Elkar's role in a moment and this material is often distributed to the chairs of the relevant committees and the material as you know, who has served on Elkar includes a record of an explanation of how the rule is within the agency's authority, it's why it's not arbitrary, the strategy they follow to maximize public input, et cetera. And then Elkar reviews the rule and can object within 45 days. And finally, once the rule has been adopted and is final it is filed and becomes effective. So that's a very quick overview of the stages of the rulemaking process. I want to next talk about Elkar's role because this is important to understanding connection to the bill and I know some of you know this but I'd still like to go through it and if I'm going too fast, just please slow me down. So Elkar could approve a rule, it could also approve a rule with modifications agreed to by the agency, it could take no action on a rule or it could object to a rule. And Elkar can object to a rule on seven grounds set forth in statute and they include the rule being beyond the authority of the agency, contrary to the intent of the legislature, arbitrary, which is a defined term in statute, the agency failing to have maximized public input or the rule not being written according to the required style or the economic and environmental impact analysis not being sufficient. So there's a list of seven grounds upon which Elkar can object but they're rather limited. And as you can see, simply disagreeing with the policy choices made by the agency is not one of those grounds. Now, if Elkar is considering objecting, it can recommend that the agency amend or withdraw the rule. The agency can certainly respond to that objection and may quote may revise a rule but the agency does not have to revise or change the rule. And if at the end of the process, Elkar's objection is not withdrawn, Elkar can vote to certify its objection and file it with a secretary of state. However, the agency can still proceed and finalize the rule. If the agency still proceeds, the concerns of Elkar have not been addressed. If Elkar still files its objection, all that does, it does not invalidate the rule. It merely switches the burden of proof in subsequent litigation. So if the rule is challenged on any of the grounds I just mentioned, for example, being contrary to the legislative intent of the general assembly or the public engagement process not being appropriately followed, the burden would now be on the agency to demonstrate that it did so. It switches the burden of proof but it doesn't mean the agency can't proceed with the rule and it doesn't invalidate the rule. Any questions about that? Yeah, one quick one. Who is able to file an objection to the rule? You know, you're saying that if there is Elkar, sorry, if Elkar has objected and burden of proof switches to the promulging agency, who might, because they thought some provision of a rule was inappropriate. Who can be a party to objecting to a rule? Oh, that's a good question. And that's something we'll talk about in more depth when we talk about the cause of action and options under current law and under this bill to litigate a rule, but it could be a party contending that it's contrary to the intent of the legislature that could be a claim based upon the rule somehow being unconstitutional, having an impact upon the agreed party, maybe an unconstitutional seizure of property, et cetera. So there's a number of grounds and I think individuals could pursue those or an entity or some kind of organization could pursue a claim. So after the rule becomes final, whether there is an objection or not, then there could be litigation concerning the appropriateness of that rule. Thank you. Proceeding on, I just wanted to highlight for you and I think those of you on Elkar are certainly aware of this. The timeframe under statute is at least four months. Often as you indicated, Mr. Chair, it's much longer and it could depend on the complexity of the rule, the length of the public engagement process. It could depend on a lot of things. Also rules can be quite costly, both staff time, public engagement time, scientific and technical support, et cetera. So it can take time and it can cost money to develop rules. And the final slide I wanted to show you concerning rulemaking is the same slide I showed you earlier. I had simply highlighted and text the circle back provisions in the current bill, but we've already discussed that, how A&R must go to the council and go to certain committees to run the rules by those bodies before they begin the formal process. That was much quicker than I thought and that was my review of the rulemaking process and Elkar's role. Are there any questions? Well done. Yeah, that's very helpful. I'm just looking at that. Oh, can you go back to that? You want to go back? Certainly. Yeah, well, I'm looking at rules file with iCar July and then Elkar process July through December. So the legislature will not be in session under this current timeline. It won't be in a position to review anything before it would move forward. But, and we have asked for in the past, we've tried to set up timelines as Senator McDonald has said where a draft rule would be brought to a committee of jurisdiction. The idea was we'd be in session, we'd have a chance to see where it was going and take legislative action if we said, well, this is contrary to the desires of the legislature. And I think we have mixed results with using that gateway because more than once I've seen us leave and then the rules are presented and we're not in a place to act. So, and there is no part of APA, as I understand it, that says you need legislative approval before continuing. That would kind of undermine. No, Elkar really is the legislative body that weighs in on rules, but they don't have to approve rules for them to proceed. You are correct. Yeah. Mr. Chair. Senator McDonald. In the two cases that I presented, one on the resolving the problem of septic in the state and the other one on resolving the net metering issue when Elkar objected to the rule and the utilities went ahead and did what they did. And we, as a legislature, thought that the remedy to the failure that had taken place was more costly and disruptive than correcting it. And we went along and didn't take an action that would have caused a lawsuit and would have caused great disruption. Following our action in the legislature, when we did that, we received a letter from the Public Utilities Commission apologizing for what they had done and said that what they had done was not correct and that they wouldn't do it again. And this is what happened last time when we put something into motion that was supposed to have a lot of public input and people were supposed to be heard as they would be heard before this council of 22 folks. My only concern with this bill right now is that if that council doesn't meet because it's not called and it doesn't make a recommendation that the administration is free to promulgate the rules that it wishes to promulgate and that we would possibly lead to yet another court action. So I'm repeating myself and I will stop and thank Mr. Martland for having given a clear and concise explanation of the rules process. Okay. Well, it sounds like we all have different points of discomfort around this kind of handoff and process that we'll need to work our way through. You know, in terms of public comment and taking public comment in and developing a plan that then leads to rulemaking, I tend to think we have a legally convened panel of 180 people that call the General Assembly and Senator Campion was saying, hearing from constituents I think and bringing their thoughts and concerns forward into the lawmaking and rulemaking process is an obligation that falls to us is my sense of this at the moment, but we'll keep working. So with that, if there are not any more questions than this, I'd just like to thank Mr. Martland for helping us out. Again, walking through the third leg on the stool of problems we're looking into we'll take up on Tuesday and that's where we'll start off. And now I'm having a moment where I'm not remembering what that issue number three was. It was the cause of action. Oh yes, thank you very much. So we'll start there. And then, so committee members, I'll send out a list of possible witnesses just as a prompt for everyone's thinking. The House had something like 52 witnesses on this bill. I'll send that around as a prompt for thinking. If, and I invite you to always when we're doing bills, if you have witnesses you believe we ought to be hearing from, please let me know and we'll work to build them in the schedule. We don't have an expansive amount of time, but I think we can cover with short, concise visits like today, we can cover some important ground and make good progress. So with that. Mr. Chair, would it be appropriate for us to ask Mr. Martland as a group or individually to provide us with some amendments that might ensure that the appointed committee in this bill meets in the event that the Secretary of Administration doesn't call it to meet? Yeah, well, any, yes. Thank you for being so polite about asking. I would say any member of the committee can ask for some drafting to be done. And I know that that is something we've seen the legislature stymie now before. So it seems prudent to think about getting some language that would help us address that possible then. So perhaps that would be, we could, Mr. Martland could provide a couple options so that at the next meeting, we could hear them. If not, decide on them, at least understand what might be available to move things forward. Thank you, Mr. Chair. I would be glad to work with you, Senator. I don't know if I'll have it for the next meeting. I hope to enjoy the weekend very much. But I can definitely work on it and I can talk to you about options. We'll get there. Maybe it's just not by Tuesday. Thank you, Lou. All right. Okay, great. So again, I'll send that list around. Thanks everyone. We're done for today and see you in 13 minutes on the floor.