 Why don't we get real, okay? So I am, I was remiss, it's got a link to us to walk through today. Since we've already started talking as a committee about some of the fossil fuel infrastructure bills, for some reason I thought the global warming solutions was a bill that we had to walk through and we haven't. And so look, I appreciate you joining us today. Walk us through this and take us through in some details. Okay, well thank you. For the record, Lugumar Land, the director of Legislative Council and Chief Counsel to the General Assembly. Good afternoon everyone. You've already heard a lot of quality testimony about this bill. You heard from the sponsors. I thought I did a very good job of giving an overview of the bill. You heard from the Conservation Law Foundation that walked through some of the issues in their perspective and you heard the law professor. And I wasn't here for all of that testimony but I was here for much of it and I looked at their handouts. And as a result I intend to focus on other issues. For example, I do not intend to go through the Massachusetts law or litigation in depth. If you have questions I can answer them but I was going to instead focus on a walk through the bill and then discuss some issues legal and otherwise that the bill may raise. Before I get started, two things I'd like to emphasize. First of all, please ask questions. You had some vigorous questions last time I was here and that's fine. I welcome those. So don't hesitate to ask questions and don't hesitate to follow up if you don't think my answer is sufficient. The other thing I want to emphasize is our nonpartisan nature. So when we walk through a bill that raises substantial issues that's a substantive piece of legislation. This bill is. We are obligated to give you a background on legal issues and perhaps point out other things that you should consider if you wish to. But we're nonpartisan and we don't care if you take this bill up. If you pass it without any changes. If you change every single word in it we'll do something in between. When I say we don't care it means we care deeply. I care deeply about doing the best job I can but I don't care about your decisions and your results because I'm nonpartisan. So without further ado I'd like to begin with a walkthrough of the substance of the bill. Any questions before I start? This is H462 and it is modeled on a bill that was introduced in Rhode Island. Section one contains legislative findings about the impact of climate change and the importance of this issue. I don't intend to read through them but are there any questions about those findings? And as you know legislative findings are often put in session law and not reduced to codified law because they get the legislature's perspective but they don't they're not telling a party to do with their actions so they're therefore put in session law. Section two is short title the Vermont Global Warming Solution Act and section three is really where the important substantive part of this bill begins. So currently in title 10 section 478 there's goals that Vermont has committed to to reduce greenhouse gas. What section three does is make those goals mandatory instead of aspirational. So if this bill were to become law it would state that green it'd be titled greenhouse gas reduction and it would state that the state shall in other words a mandate reduce emissions of greenhouse gases from within the geographical boundaries of the state and those emissions outside the boundaries of the state that are caused by the use of energy in Vermont from the 1990 baseline by 25% by 2025, 50% by January 1st 2035 and 75% by January 1st 2050. And Sandra Levine pointed out when she testified you'll see this later on in the bill when we go through what the obligations of A&R are to do under the bill that there's also the 2045 date. So if you proceed with this bill to conform this section with the latter sections you should also probably insert a benchmark for 2045 which is not there currently and I'll explain that when we get to it. Any questions about what I've gone through so far? Going down to E, this is new language because it's underlying this is now really getting into the meat of the requirements for A&R and other state agencies that would be implicated by this bill. I want to read E in its fatality and explain it and then go through the other sections. Not later than one year after the effective date of this act the secretary of the agency of natural resources in consultation with the commissioner of the department of public service and the secretary of the agency of transportation shall adopt and implement rules to achieve the 2025 greenhouse gas reduction requirement established pursuant to and there's a cross-site to the goals that we just went through. So that is the requirement and you'll see there's similar requirements for each benchmark by year. F sets forth what A&R and the other agencies will consider in developing these rules and F states that in developing implementing the rules required above they will evaluate certain things including the potential costs and economic and non-economic benefits of various reduction measures to take into account the relative contribution of each source or category of sources to statewide greenhouse gas emissions. Three conduct public hearings on the proposed rules and I want to go through the rule adoption procedure later in the role of Elkar you'll see that this is also required in the current law for the adoption of any rules. But these hearings would yes. Excuse me. I'm sorry. I just want to make oh I missed a page. Let me answer my question. In these hearings the secretary shall conduct a portion of the hearings in communities that have the most significant exposure to air pollutants. Number four consider and address any reduction in greenhouse gas emissions within Vermont to maybe offset by increasing emissions outside Vermont. So these are some of the criteria factors that should be taken to account in developing the rules. Mr. Chair do you want me to call on the yes please. I'm sorry. Yes. So uh since uh I think and before one in e uh it talks about uh both electricity well electricity transportation and building sectors yep um electricity is under the purview of the Department of Public Service yes on the Katoa commission. Does this present a problem for A&R? I would get to that in a moment. It's a really good question but some of the issues I'll talk about. So if you can just bear with me for a few we will discuss that. Any other questions before I move on to G? G states in developing the rules required by subsection C the secretary may so this is optional not required utilize such market-based compliance mechanisms that are reasonably necessary convenient or desirable for achieving the goals. Consult with other state agencies and departments and other stakeholders and under H every two years the secretary and natural resources will assess whether the rules are achieving their goals and if they are not adjust accordingly. So this is a structure there's the mandate to adopt the rules to achieve the benchmark in a certain year in this case 2025 the factors the secretary is supposed to look at and consider in developing those rules steps they can take for example they could consider a market-based approach consult with other agencies and then reassess every two years to see if it's working you'll see this structure repeats from each other subsequent benchmark in subsection i and j the similar pattern is now repeated for the next yearly benchmark which is 2035 so this states on or before july 31st 2024 the secretary natural resources shall adopt and implement rules to achieve the 2035 greenhouse gas production requirement established insights back to subsection a and in all respects shall observe the requirements that we just went through in f and g about the factors to consider and the process to undertake and then in j the secretary shall notice frequently the ones every two years review and update the regular the rules as required to make sure they're meeting the benchmark so once again it's repeated the same approach yes the 20 again okay k repeats the same approach now we're talking about the 2045 goals but as i indicated earlier in that very first section uh we did not include a specific numerical goal for 2045 excuse me 2045 so if you perceive with this bill you have to insert that target for 2045 is that clear so k and l repeat the same structure on or before july 31st 2034 the secretary shall adopt and implement rules to achieve the 2045 greenhouse gas reduction goals and in all respects follow the same criteria and process that was set forth above and then in l just as with the other sections no less frequently than once every two years review and update the rules as required to meet those benchmarks and then finally m and n repeat the same language in the same approach for the 2050 goals yes okay so i can foresee some circumstances where you're trying to adjust the rules based on the measure results but it may require a legislative action you're asking really good questions i'm asking you to bear with me again oh okay so it gets me uh any other questions that i can answer it's just time so that's really the meat of this bill uh section four is abrogation and what this basically says that is if vermont enters into a binding agreement with five or more states or canadian provinces that achieve the same benchmarks that this these requirements will not go into effect or under b if there is a federal uh federal legislation or federal program that in some way achieves the same benchmarks these requirements will not come into effect so in other words if the feds are doing it the state law wouldn't go into effect if vermont enters a agreement with other states or canadian provinces that would meet the same benchmarks this law would not need to go into effect is that clear uh you know my wi-fi is not working what is abrogation stop and no longer in effect very great it means yeah so if vermont entered into a binding agreement with five other states and canadian provinces this year before anything happens none of this will go into effect but they do it before 2045 you've already implemented and taken steps but you enter into such agreement before 2045 basically this law would stop being in effect okay so it could be before anything started could be halfway through now c is just if such an occurrence happens that the governor would in essence certify that the multi state or multi province agreement or the federal program would be achieved in the same benchmarks section five is enforcement this was a section that raised some questions when previous witnesses testified about this and let me read through most of it for you this would add a new law in title 10 under a the attorney general may investigate violations of sections 578 that's basically all the texts that we went through of this title if the attorney general finds that a person has violated or is violating this law the attorney general may bring an action in the civil division of washington county or in the civil division of superior court of any vermont county where venue lies so the ag has authority to investigate violations of this law and bring actions in civil not criminal civil court now person you say that they can you'll notice that under line 13 says that the ag finds that a person has violated or is violating this law and person is defined in 10 dsa 552 which is the same chapter as any individual corporation legal entity agency or instrumentality of the state so it's a broad definition of person so that means the ag could investigate or bring action against an individual legal entity corporation company instrumentality of the state municipality etc when you say of the state does that mean resides in the state or of the state as it being part of the state apparatus means someone who's in this state violating the law it does mean an agency or department of the state of vermont it means a town or municipality of village school district it's pretty person is pretty broad so it's a pretty broad term and that's throughout vermont law but it is separately defined in this title also in b any person same definition would apply aggrieved by a violation of this law may bring an action in the civil division of the same court or in any civil division of the appropriate venue in the state of vermont so this then gives a right of private enforcement as any person once again the same definition applies so it's a individual it's an organization it's a corporation it's a company could bring action against someone who's violating this law under c it sets forth what they could obtain they could seek damages injunctive relief punitive damages in the case of willful violation and reasonable costs and attorney's fees there's suggestion from one witness to modify this language a little bit but as it's currently written they could seek damages or to be monetary damages injunctive relief which would be an order of the court similar to what happened in massachusetts to do something or for that matter to stop doing something or and or reasonable costs and attorney's fees did you have a question is it and that any person that write your private action was part of the mass massachusetts well i believe in massachusetts uh ceo left brought the suit or was involved in the suit i don't know who else was involved any questions about that yes if you're not the right person to answer for reasons sure but i'm just in terms of this definition of person if i'm reading it but earlier everything the bill it's saying that uh basically this is a responsibility of the state to to see that we meet me yes um that these don't these not that we actually meet the goal so um i'm just trying to imagine how a an individual or a company would be in in violation of that it's a good question so if this bill becomes law and in ours obligated to develop these rules to meet the benchmarks i assume those rules uh might prohibit certain conduct might incentivize certain actions i don't know but it could prohibit certain conduct or require perhaps that somebody has some approval to do something and then if that person in visual companies violating that requirement i could see that you might bring suit against that company or individual okay because i was just more thinking well if we say i just just an example we're going to reduce our heating fossil fuel use it and i don't have my house that would not be because that's an overall well this is what i want to get to is uh i want the request that the committee start thinking about how this would play out on the regulatory level so i don't know what the rules would require okay they might require individuals to engage in certain activities or not engage in certain activities and then maybe maybe you might be violating any other questions before i proceed section six is a reporting requirement and what it basically says is that the secretary of anire will report to the general assembly on or before January 15th of every second year beginning of each biennium the progress made during the past two years towards achieving these benchmarks and include the information set forth in one two and three so it's a reporting requirement back to you the legislature about progress being made or issues being faced the next two sections concern GAC government accountability committee and that process and i'm going to flip through i when i drafted this i kept in all this language about the government accountability committee most of which is not changed because it's not a law that most people are familiar with the new language is all the way here on the top of page 12 and what this basically does is require that the government accountability committee consider progress in meeting the greenhouse gas reduction goals in in their efforts to look at regulation in state programs and then the chief performance officer which is an executive branch individual when he or she is looking at this data they are also supposed to consider whether state efforts and programs are meeting greenhouse gas reduction goals doesn't this committee already go into accountability? yes so what i said is this is existing law yeah it's adding a new factor for them to weigh and consider me aware of i put all the existing law in the bill because it's not a sectional law that most people are familiar with you know let's give it back and then last but not least we have the effective date which will be july 1st of 2019 now this is a relatively short bill 13 pages but it's quite a substantive bill and it raises some issues that the committee should be aware of and i want to talk about them now the first would be the role of rulemaking in vermont and the role of legislature in oversight over rulemaking process i want to talk about some constitutional legal issues and then i want to talk about some potential implementation issues which raises some of the points you raised about how does this intersect with the existing vermont law that also is relevant to greenhouse gas reduction so let's talk about the lcar process and rulemaking process and some of you are familiar with this but some of you are not please interrupt me if there's any questions that are going too fast or too high a level so first of all rules have the force of law under 3 vsa 845 they're binding and they have the force of law so if an agency promulgates a rule it has the same authority as a statute that you may pass under 3 vsa 845 sub section c it states that no agency may use the rule making authority to 1 provide for penalties fines or imprisonment not authorized by other law in other words they cannot impose a sanction of imprisonment or fine unless it's otherwise authorized in law to enlarge the authority of any agency to impose requirements on any member of the public three allow an agency by rule to require permits or licenses or fees unless authorized by other law so any agency that requires a permitting process or a fee to get that permit has to be other that authority has to be otherwise authorized in law for example the statute now the procedure for adoption rules i won't go through it in depth but it has multiple steps the agency or department would develop the proposed rule in many cases they would prefile it with the executive branch committee on administrative rules the interagency committee on administrative rules they then file the proposed rule with the secretary state and that filing includes various information including an analysis of the economic impact and environmental impact of any proposed rule i can go into those requirements in more depth if you want the rules and published online with the secretary state and there's a lot of information that's required in that packet or that publishing they're required to hold public hearings and then it's submitted to the legislative committee on administrative rules elcar and at that point it's called a final proposal i'm going to talk about the elcar process in a moment but once that process is concluded it is finally filed and it becomes effective so there's multiple stages but you are only involved towards the end now what is the role of elcar in other words if this bill becomes law an a and r is tasked with developing rules and implementing rules to achieve these best cards what is the legislature's role the legislature through elcar can only object to a potential rule on seven grounds and they include for example that it was beyond the authority of the agency it was contrary to the intent of the legislature it is arbitrary which is a defined term and elcar can then object and recommend that the rule be modified to meet its objections the agency is required to respond to the objection and it quote may revise the rule in other words it is not obligated to change the rule in response to your objection and you cannot object on the grounds of well there's a better option i think you should try this approach instead of that approach you only can object on those seven grounds and once you reject the agency can is not required to modify the rule in response to your objection if the your objection from elcar let me just get through the last two points and then i'll let me swing back to you okay if elcar's objection is not withdrawn after the agency responds you can certify the objection and file it with the secretary of state and at that point if the agency responds it basically flips the burden of proof so if there's a lawsuit concerning that rule the burden of proof is now in the agency to demonstrate that it satisfied those seven potential grounds that you could object on it does not invalidate the rule they still can proceed with the rule the rule still is binding has the force of law it just means that there's subsequent litigation the burden of proof is switched yes sir so when you say you could object you're referring to the legislative committee yes i am yes with input from the chairs of the committees of jurisdiction yes that's a very good point thank you so i believe a resident chest chest and tangents on elcar i don't know if any of you are right so there is provisions in law and i think it's also matter matter of courtesy that if there's a substantive rule that the agency of jurors sorry the committee of jurisdiction would be consulted in an opportunity way there's also an emergency rule procedure i'm not going to go into that that basically allows an agency or department to do a rule more quickly and that just speeds up the process and they can have the emergency rule and simultaneously have become the become the normal rulemaking process so the takeaways are that rules have the force of law they're binding there's limits to what an agency can do in its rulemaking process that the legislature is involved but elcar has a somewhat limited role for example limited grounds to object and even if they do object the agency or department still could promulgate that rule is that clear to everybody any questions about that so many do you want to ask them now or do you want to ask them right no i just i would like to see where the information that you are reading the statutes yeah yeah one of the statutes i would just so that i could read um i give you a citation right now and i would ask there's a whole chapter on it it would be helpful um if you know your notes from taking us through this today um if you could supply us with those because i'd love to come through some of that as well so just you know three vs 844 845 starts i can give you that chapter there's a whole chapter three vs 845 is 844 845 i think it starts as a whole chapter on it and it would be great if you could get that to sarah yeah um they're my personal notes as long as they're not posted there's nothing mysterious or you know in there but they're sort of ad hoc notes that i wrote up i can't write as fast as you're talking all right sure be glad to so we could talk about rulemaking process now or we can proceed to some of the legal and constitutional issues and then i'll be glad to try to answer any questions you have what do you prefer as far as i'd prefer to go to the next step and kind of more through your outline all right so there's certain legal issues raised by this bill and um in no way does it mean you shouldn't or you can't take up and proceed with this bill i'm nearly highlighting legal issues that you should be aware of because they might be raised in subsequent conversation or you might want to follow up on them and get other perspectives so the first one has to do the separation of powers and the delegation doctor so i think you all of you are aware of the separation of powers but just to base everyone on the same point um there's three branches in our government the legislative executive and judicial and to quote from a case from ramon supreme court the legislative powers of power that formulates and enacts the laws the executive powers of power that um enforces the law and judicial power interprets and applies the laws so there's some overlap is provisional between these three functions and these three branches but it is unconstitutional for one branch to usurp and exercise a core function of another for example you cannot try an adjudicated case that's a responsibility of judicial branch judicial branch can't develop and pass a law that's your responsibility so tied to the separation of powers is a so-called delegation doctor and this doctrine basically states that it is unconstitutional for the legislature the lawmaking branch to delegate its supreme legislative authority to another entity or branch now it's been i'm going to summarize i'm not going to quote a length some statements from various cases but in essence it means that the legislative branch is supposed to formulate the state's policies through law that it enacts and it may confer on other entities for example an agency or a department of the executive branch the power to apply the general provisions of that law and to exercise its discretion in doing so let me let me keep going with two cases and don't please focus on writing down what i'm saying because i think once i get through these two cases and and tie those threads together will be clear and i'll send you my notes but there's nothing that i'm saying that you need to write down i don't think so there's two cases i want to go through uh very very briefly one is called waterberry versus melendi it's a case from 1938 and the other is a more recent case concerning the gremount caribou so in the melendi case from 1938 basically a state law was held unconstitutional under the delegation doctrine i think it may be the only time in vermont that that's been done but the crux of the issue was that the public service commission was ordered and authorized to apportion the expenses of flood control among state agencies and municipalities so there were costs incurred in flood control measures and this agency the public service commission had the power to apportion those costs to towns and villages and various municipalities and the court held that the law was unconstitutional under the delegation doctrine because it did not provide any standards in making that determination any guidance in how to apportion those funds now more recently in a case called nre mvp health insurance company which is a 2016 case from the vermont subpoena court that was actually a challenge to 8vsa 4062 which empowers the gremount care board to approve or deny health insurance rates so it was a fairly recent law and was challenged on multiple grounds including violation of the delegation doctrine and under that statute the board is empowered to determine and approve a proposed rate and it's supposed to look at whether that rate is affordable promotes quality care promotes access to health care protects insured solvency and is not quote unjust unfair inequitable misleading or contrary to the laws of the state that is a criteria set forth in that statute that's a criteria that the gremount care board is obligated to look at when determining where they should approve or deny a proposed health insurance rate increase now the argument was that this statue was unconstitutional because it delegated the legislature's core function to the gremount care board and did not provide sufficient guidance the vermont supreme court rejected that argument and held that the law was constitutional because the gremount care board's discretion was curtailed by the consideration that just summarized the factors and although these standards are quote general and open ended they reflected the practical difficulties of establishing more detailed standards so i believe that this bill may raise delegation concerns but i do believe it is constitutional in other words i think it satisfies the mvp health insurance company test because the there's criteria set forth in this bill number one it sets very clear numerical benchmark based by year and number two it gives the factors that a and r is supposed to weigh in developing its rules and i ran through those four years earlier and some of those criteria some of those factors to look at are somewhat general somewhat open ended but under mvp that is permissible because it's perhaps difficult to be more specific so the takeaway you may hear or maybe raise another testimony that this law raises delegation doctrine concerns i think that argument could be made but i think there's very strong arguments on on the other side that it is constitutional this is probably much more involved answer than you're able to get to but do you see a key way to remedy the potential challenge with the delegation doctrine issue let me talk about separation powers and we can get to that yes i mean in very short right now is if you're proceeding with this bill and you wish to pass on to midi you could always you can modify anything but you could give more guidance if you wish i i think that there's an argument that the guidance already given is sufficient but you could give more you could be more specific i want to talk about separation of powers which i actually began with and is closely tied to the delegation doctrine and this is the one time i take off my non-partisan hat so i began by stressing my non-partisan role well now i'm going to take that off a little bit i'm going to be a little opinionated because i'm chief counsel of the general assembly i'm not chief counsel tenor not chief counsel of the executive branch agency i'm your attorney and so i want to run through some issues that i think this bill raises from that perspective you've heard testimony from various witnesses that over 40 percent of the greenhouse gas emissions of the monitor transportation related and over 20 percent are residential or commercial related in other words thermal efficiency and that electricity is 10 percent that's not my data that's data that's been given to you numerous times to meet the goals set forth in this bill a and r is going to have to address transportation sector we're going to have to address residential commercial thermal efficiency sectors they may well have to address the electric sector also so you're giving huge regulatory authority to the executive branch agencies and departments to regulate very broad swaths of the months economy and society it's going to be transportation it's going to be thermal efficiency could be electric it could be other things also so the question is your chief counsel being somewhat opinionated isn't this a core legislative function isn't this a core legislative function you can hand it off day and hour you can do that that's constitutional you can do that but the question is think of how you would do that and some of the issues it raises so first of all is if you hand it off to the executive branch how do you know what you will get back from them so we went through the rule making authority i'm sure that i undertake a very appropriate process and develop the rules and obey the law but you don't control what they would come back with i mean similar what's happening with tci their negotiation and tci agreement which could have a major impact on transportation in the state and the general assembly is sort of backed off and is not exercising your oversight over that process that is legitimate you can certainly do that so what it means when they come back with the tci agreement it's a fate of complete that ship has sailed it may be a great agreement you may love it you may hate it maybe somewhere in between but it's done and so you have less authority or the end result if you don't participate in the process it's similar to this if you're giving and our the obligation of regulating gloves last of a month's economy and state you don't have as much control over the end product as if you did that yourself so obviously you can't do everything in the weeds and all minutia but if you're setting the guidelines if you're determining the policy if you're making the decisions you're more possible i have a question i'd like so i'm going to be guilty of asking a question i think i know the to what extent can uh i think i know that we can pass a law that obligates future executive branch officers whether it be the governor or an agency to fulfill the obligation under a law so i can see why this bill was drafted to say here's what we're going to do we're going to obligate and are going forward to you know to actually end the the a g although about a may not a shell to fulfill the obligation and so yes so the question that i have i think i know the answer to is to what extent can we pass a law that will obligate future legislatures you can't just think about it because if you do this every year when you pass the budget you uh you sort of say you know so we're considering every other law so what are you doing well i mean you i guess every law obligates someone going forward right so every law you pass fines an executive branch agency or dictates individuals behaviors going forward but the next session the legislature could unwind that's the doctrine of you can't find a future legislature they can always change your mind and pass a law that changes or unwinds what you just did so i don't want to but if they don't do that it it it continues it's so i don't want to solve this problem right now so we don't have kind but uh a question i have is if we are if we are statutorily obligating the through this bill uh the state of vermont to put in place policies that will allow us to reach these goals and we're pointing a figure at the executive branch to come up with the plan to do that and then to enforce it uh i'm trying to figure out how how we can obligate the legislature to follow the law um in terms of playing a playing a part in that process well let me get out i'm actually almost done okay so i don't like it but i think when i try to pull the threads together at the end with some issues for you to think about um that may become a little clearer yeah so um one thing to keep in mind when you're putting a rule making mandate especially very broad rule making mandate on the age of your department is they cannot appropriate funds so they cannot appropriate funds so if you're asking them to engage in activity that's going to cost money potentially a lot of money only you can appropriate funds so be aware of that um i want to talk about putting now taking off my slightly opinionated hat and putting back on my nonpartisan hat i want to just wrap up by talking about potential issues that pertaining to implementation to be very clear it doesn't mean you shouldn't pass this bill you can't pass this bill you can it just means if you're proceeding with this bill these are some of the things to think about and these are some things you may want to hear testimony concerning one is how does the new regulatory approach fit within the existing regulatory approach representative yotashka that was your question going back to the beginning of my presentation there are programs laws already on the books some of which pertain to greenhouse gas reduction there's requirements as to weatherization of existing buildings set forth in title 10 there's um pursuant to um title 30 department of public service establishes uh requirements as to uh thermal efficiency for new construction which they they've adopted international standards um there is the public utilities role in issuing certificates of public good for electrical plans and these are all things that we talked about in this committee a lot there's renewable energy standards on title 30 which you've heard a lot of testimony about vermont's involved in regi vermont may be entering tci a and r already regulates air pollution there's an existing structure whether that works well or not or works sufficiently or not that's a policy call but there's a lot already there this bill doesn't wipe any of that away it keeps it all doesn't change and then it puts an obligation on a and r in consultation with other agencies to develop rules to reach these benchmarks that could create some cross jurisdictions could create some competition could create some confusion so it's time to consider if you're going forward how does the new interact with the old and who's responsible for what it's also an issue of resources and personnel something not i can't give an opinion on but if you're putting a substantial rule making authority or burden on an agency can they do it can they do it in the time frame you've established of only 12 months how should resources be reallocated there's also an issue of what exactly are you asking a and r to do and this goes to what is the legislature's role and i don't these are just questions i'm throwing out but if you think about it you're setting very clear goals very clear they're mandatory um you're giving some factors you're supposed to look at but let's take as an example the transportation sector as i said earlier her testimony that's probably 40 of greenhouse gas emissions in tomorrow so what are you asking a and r to do uh rap came back to you and talked about evian center programs they gave you suggestions from potential programs that you could implement are you asking an argument that decision are you asking them to develop incentives where the where's the money coming from are you asking them to uh ensure that there's sufficient infrastructure for charging how are they supposed to do that how are they supposed to pay for it if these things aren't working whatever they try what else are they supposed to do in other words these are the specifics of not only the goal but what are the steps to get to the goal and those are the kind of things you should think about i certainly don't have an answer to but you should think about either before you codify those steps yourself or you hand that authority off to an agency or department thank you very much for your patience i'll be glad to take questions so it seemed to me that focusing specifically on a and r may not be the best approach but to actually divide the requirement among different agencies and departments which you know we know dps has an electricity agency transportation has transportation and an r has i guess dps also has heating but an r may be responsible for doing the measurements just a thought so um we have some precedent for uh we have addressed an issue environmentally in the state is regard to water if we hadn't been compelled by various parties of the state to deal with clean water issues that we were really coming up short on we would not be dealing with clean water right now i'm not that familiar with that issue area at all but we are doing things in the legislature we're doing the executive branch is doing things right now that they've been compelled to do i would say we've probably gone more slowly than folks doing that compelling would have hoped is there any analogy you can draw there as the work that the legislative body in the general assembly and the executive branch has done in the last three or four years that draws a parallel here i think it's legitimate to draw some of the parallels not my subject area so i'd be reluctant to find i think part of the push in water quality is federal government yep so that's well whatever the push is that's already pushes the legislature and the and the governor yep the executive branch are moving forward on something that had they not been compelled to that's a valid analogy or and uh certainly um it's valid to also say that litigation or gratification and push parties forward too so and i guess what i'm also thinking about is you know the legislature to some extent chickened out a couple years ago and said hey state treasurer we'd like you to tell us you know give us a menu of options here that we then decided not to choose from and then tried to compel the governor to you know make some of the choices but there the point is i would say that through some um kluge decision-making process policy has proceeded yes and move forward i think that's a valid point oh i'm not arguing one way or the other i'm just looking for an example no i think it's valid to draw that connection what i'm conveying is to get to these goals that we have to be a very broad based approach so question is what are the steps to get there who's making those decisions you or an agency or department i would think that there would have to be a lot of steps taken that would impact a lot of everyday life to try to get there yeah so water quality is a pretty big issue and very expensive as you know but in anything comparison it seems a little more constrained yeah go ahead i have a question on a similar line and that's under the enforcement piece yep so i'm going to spout off here and tell me if i'm wrong why would there even need to be a section in the air about any person agreed being able to file a suit when it appears to me that that can happen now anyway basically looking at the massachusetts case where a group sued over wording in current legislation so why why is that necessary if it can happen so i'm going to try to define my answer to the legal question i think you had there so there's some differences between bramon and massachusetts perhaps someone could sue in bramon had a similar result and i don't know this strengthens that because it's the right of private action so what do you think it's good pause here now making no comment but it does it's there for the reason to ensure that private party could bring such a suit it's done in other areas of ramon law not it's called ketam proceeding in other areas so it's not unique to this bill it's it's raised a little different but i don't think it's unique so to follow up on that because this is one of the things obviously we are referred over and over again that they're not meeting these goals so this would put it into law and i guess my question again is the is this possible litigation so i or you know the right to action and it's against not only it would be people would have a right to action against the state for not meaning is that correct and or let me just take a bold dose let me just look at the language again i believe you're right let me just tell the check i don't know a trucking company or a fuel company or something so ag can investigate and bring suit against a person any person agreed may bring an action yeah i think both could bring suit against any person else probably find so a broadly defined it's broadly defined so it's like a state or a department earlier yep or a fuel company or a school or a person or me personally yep yes i believe so so if there are rules in place rules have the authority law yep and so if there are rules in place and somebody were violating a rule that would allow even without the section the ability of someone to bring a lawsuit against one of those in violation of that rule right without this that section yeah i don't know with that session yes without it i don't know i don't know i can check on that but i'm not sure okay well but if somebody's breaking breaking a rule sure i am not sure i can check on that so i don't know if i have a question i want to make sure that i understand the question that representative Sherman was asking in your answer so anyone can anyone who is violating this can be sued or anyone can bring both persons defined broadly so person is i gave you the definition sometimes for you is very broad that is who can bring suit and i think it could be against anyone violating the rules or failing to develop and enforce those rules for that matter so it would have to be someone that has the authority to enforce those rules no so so it's a private right of action person could be individual you or i or municipality or a company or corporation legal entity of any kind could bring suit also the way i read it suit could be brought against any individual legal entity municipality that's violating rules they have to be violating rules i don't know what the rules are so in massachusetts it was the agency violating the law because they weren't developing the rules that certainly seems appropriate in this language once the rules are developed if someone is violating that you could bring suit against them but they have to be violating the rules do that make sense to you yeah i think so can i just walk through what i think i'm hearing which is that so first we would have to develop the rules so if there's no rules then no one's getting suit well the only one who's getting suit is the entity responsible for not making the rules yes that that's what's happened in massachusetts so perhaps that could happen here once we have rules then we open the door to but well again luke if i'm not mistaken a private right of action can be brought if anybody believes somebody is breaking the rules well i mean there's uh well just just hold it there's a heck of a lot of lawyers in the world yeah and there's a lot of lawsuits filed some of the meritorious i'm not being silly or some of the meritorious summer fiddlers that's what i'm sorry here's a lot oh you could file suit yeah yeah but it doesn't mean it's meritorious it doesn't mean it'll go anywhere so no i understand but a private right of action could be brought against an entity um because somebody believes that they're not following the rules and then they would have to go to court and establish that they indeed are behind the rules so there is a burner proof that they would have to satisfy yes but that's no different than any other suit right i understand for this particular yeah i just want to make sure we knew so i'm sorry that i missed everything leading up to this but the uh so private right of action clearly designates that any individual can act are is is it fair to say that in most other lawsuits there one has to establish whether one is a party yes every lawsuit you have to have a standing you have to establish party establish uh you have to prove your case injury but before that you have to prove that you have standing yeah these are all requirements you have to have this basically automatically says you have standing no you tell us no no no you yourself to prove that maybe it's easier to prove every case you have to establish standing injury it's a civil case immediate you have to prove your case so that's no it's no different here it's just saying that there's a broad group of people who could bring a case they would still have to prove that case like any other lawsuit so what is the impact of having that language in there it clearly establishes a private right of action which i'm going to check if um there would be such a private right of action without this language i'm going to double check on that but i don't believe so so what this means is an individual can sue to enforce the rules that a and r promulgates or if an individual is violating requirements under those rules can bring suit against that entity that's not always so under existing law without that language it's a private right of action so private citizen organization entity can in essence enforce the rules that's what's different about the language right so i get what this does i'm not sure of the pre-existing or the current status without the language i will check on that but for argument's sake let's assume not or less so what if b and c were part of us in enforcement their legal question there yeah that's a so it would certainly be a attorney general oh so you still the ag but you don't have the uh well i mean yes you could make that change that's your question well i know we can make that change but but essentially that right of a private citizen oh yes and i'll i'll double check to see if there's an argument that without this language there exists a private right i'll check but for argument's sake let's assume there's not then you take the language out it's only up to lg so this is about the uh going back to the delegation issue so if uh i think i'm right the more the more specific we are in stature in terms of what it is we're asking the rule to do uh the more gotten in other words the more guidance we get the less likely probably that that that would be legitimately raised but the flip side of that is that we could be we the legislature uh citizen legislature could be wondering in way beyond our expertise and into the weeds if we get uh to specifics i guess that's to me that's that's that's the balance that has to be you don't want to just say hey go write some rules um you want to be fairly specific but but we we don't have the expertise or the time uh to be too specific i guess i think that's a legitimate point you know taking off my non-partisan hat putting on my opinionated hat i think the legislature might want to determine some of those steps to get to those benchmarks could you go back to um so it was number two on the rulemaking limits number oh when i was going through the l-bar process and just read that again and maybe explain it sure a little bit more sounded interesting so if this is going backwards and higley is referring when i said that there's limits to what can be done under rulemaking number one was provide for penalties fines not otherwise authorized under law number two enlarge the authority of any agency unless otherwise otherwise authorized or three allow any agency by rules required permits for licenses unless otherwise authorized so number two was largely authority of any agency if you pass this law you are enlarging authority of any in order so we're doing that yes yes you're you're you're telling nr that they need to exercise their authority to pass these rules that will be quite broad so i don't think that's a problem but wouldn't they also be requiring other agencies to enlarge their authority as well well nr seems to be the primary rulemaking authority here they're supposed to consult with transportation and others and i assume they would but they seem to be the ones that would be promulgating or taking the lead of promulgating and this bill it becomes law it does confer on them that authority so you're authorizing them to do that i guess i was thinking in terms of the degree of specificity we can get into here as far as as far as the goals and steps to get there and i was thinking of it in terms of of code because i'm involved with buildings and codes and stuff codes and standards and so i i guess i'm thinking that what we're trying to get at here is more of a i think in code language a performance spec not a prescriptive spec in other words we wanted building to meet a certain in the case of a building we want to build in a certain efficiency metric you know as opposed to saying we'll have you know r38 in the attic so i'm saying so i'm i'm what we're trying to do is is find the balance between those two it seems like what we should be aiming for in law and statute is is a performance spec it's more more like performance spec than a prescriptive spec because of the lack of flexibility that a prescriptive spec would have am i do you understand my analogy is that is that i understand your analogy i don't hear a question you know well um i understand what you're saying i just it's not something i would answer okay well does that make sense to you i guess it is it's one question your statement makes sense to me thank you we could give we could expand the authority of a and r but a and r can't expand its own authority or be too well for yeah i mean i well maybe this isn't the time for the question but you know we are giving a lot of we're giving a lot of authority to a and r um and we have dps and a and t what did i say what no ag actually is not um yet and so you know i just wonder i wonder what my question is is that is there is there a place and i don't think it's a question for luke you know it's a question for peter but i think it's a question we need to ask like is there a point percent well and i think that's what was it point person in the frustration on this this is like a huge um act 46 statewide education plan that's what this is no i actually think this is much bigger than that actually yeah and and i don't say that with prejudice one way or the other we have we have a crisis related to climate change um our state unilaterally is not going to solve that issue um but we do need to be making steps that move us down the path of being part of that solution and the legislature and frankly the executive branch have demonstrated a lack of capacity whether it be moral or political will to address these issues and what this law this bill is is directed at and again this is a draft of a of a bill but what this bill is directed at is compelling the executive branch uh to come up with mechanisms with which to fulfill these obligations and you know i think a question that's definitely arisen here is uh to the extent that legislators would have an interest and i would question capacity to participate in that process in an annual basis and you know to the extent some of that authority should or should not reside with the executive branch but apps and and you know this is one idea a bill that was introduced and co-sponsored by a number of legislators this is one idea as to how to approach this that massachusetts has gone down this path other states have gone down this path as well Connecticut this Luke i think as you introduced is a bill that's based on right but has not is a 2018 bill in a stating committee yeah and in massachusetts there was indeed the uh i think it's called the global solutions act of something similar but there's also other bills passed as one of our i think green communities actually in statue set forth a lot of requirements state requirement to buy cars state requirement um thermal efficiency reggie implementation of reggie so in massachusetts there was certainly this regulatory approach but there also was the Massachusetts legislature put a lot in statue about what else to do but i think i'd also say thinking about this what has um arisen in my mind is that we lack a strategy a coherent strategy as a state as to how to address this issue and you know again we can argue i don't think we can argue about whether we should whether or not we should have a strategy as a state maybe we can that's a pretty easy answer for me we don't have one and uh you know should the legislature be developing one should the executive branch be developing one we need one and um i would say that this is is trying to press us in a direction to you gotta have a strategy and that strategy has got to be um directed at leading these goals mr chair yeah so one of the things that so i'm going to pay for you to check my questions for me right we have one you're chiming on this too thank you thank you thank you one of the things that i you know if we move this bill that i want to make sure is a part of at least a part of our discussions around climate change they're very focused i feel on emissions only and i think it's really imperative that we think about um making sure we're talking about protecting vermonters right now from the impacts from the storms that we know are happening um and that we ensure that those things are really connected um that we're not just talking about um emissions but we're also talking about protecting now right now life and precise whatever we want to call it i think we saw the climate change website that is up there which i would i i know you i know you love that uh that website deputy secretary but i think uh something along those lines is really imperative where we are so that uh vermonters legislators the executive branch knows what is happening what we're doing um to combat what is happening um how folks can protect themselves you know and uh you know these these storms are happening right now and you know we're racing and i think rightfully so to participate in emissions reductions which are important but if we you know go to zero emissions in vermont we haven't mitigated the threat to vermonters which is immediate and so i think we cannot overlook so the question is should these be parallel efforts or should these be one concerted effort and one bill which could possibly become very different uh unmanageable well i would um well if we were if so if the question is is it one or the other or both if we go to one or the other i would go to infrastructure i would go to infrastructure because the threat is immediate to that it's now right now impacting vermonters in vermont and we can do some things about that today so i would actually like to see us do both but if we had to choose i would choose infrastructure i actually do have a question for you um that rate of individual action um if we're talking about storms and their effect in vermont would that allow somebody in vermont to bring suit against somebody outside of vermont for the effect of their actions here well tell me ahead i don't see it because it would be for violation of the rules promulgated by vermont agency let me think about it but i don't see it at first blush i'm sorry i live there in vermont violating vermont rules even their connecticut corporation maybe but if it's a polluter in connecticut it i i i think about that i don't really see it at first blush okay thank you what i was going to say or about your point is that i agree exactly that we ought to be focused on the threats that we're going to face here regardless of what we do about emissions it's not in the future it's not in the future it's it's now and and and and uh and we can see the threats growing and we need to take steps towards addressing those threats and i think those steps don't have to be as i've said before i think that those steps don't have to be looked at strictly as a cost to to us to to society but as an opportunity if if we if we do it the right way so how do we do that we have to transition our economy so it's not to be as vulnerable to changes that are coming down the track that's the big big question it's a big picture sorry but i need to leave have a good weekend we'll get this figured out let me know yeah we'll see you on tuesday morning but so we're done here today people want to talk more if i welcome it but that's our last testimony for today two clementines i don't want to read more do you want immediate action immediate remedy got it go do you need some work well what are you going to do with this we're working on it we're working on it let's take more questions you ready about it at most no changes