 It's Thursday, June 18th. It's just after 10. The meeting by the Senate natural resources and energy committee. We are actually waiting pausing for a moment in order to assemble a forum of the committee and then we'll get started. But just for folks who are watching what we're doing this morning is going to be talking with Miss Rush from from our law school about Global Warring Solutions Act as it was enacted in Massachusetts, which is a really excited model for the work we're doing here in Vermont. So let's learn from our neighbors just the idea there. And after that, over the last 24 hours, a technical edit has been suggested to our S237 amendment. So around 1115, 1130, in that timeframe, we'll switch over to reviewing that very brief amendment. And then if we have a little extra time as Senator McDonald suggested, we might be able to have a little committee discussion based on conversations that came up in yesterday's caucus. Thank you. Thank you. I just got a text from Senator Campion saying he's waiting to be let in. I know I have, I just not to believe this, but I have a little problem with my screen right now. I can't get to the, I can't get to the just hang on. I just trying to get out of here. Those window. There we go. Okay. They are back on. He's coming in now. Okay. So. Good morning, Senator Campion. Now we have a quorum assembled and like to go to our agenda for the morning. So with that, I'd like to welcome to the committee. Thank you. Thank you. Thank you very much. And we have Senator Crush left from the Vermont law school. Who is going to be sharing with us for work on. What happened in Massachusetts with their version of a global warming solutions act. And if we have time, maybe you can offer. I don't know how closely you've been following the Vermont version of a global warming solutions act. And maybe we can do some compare and contrast, et cetera. Right. Great. question. Great, thank you so much. So just to introduce myself a little bit more, I'm the associate dean for environmental programs at Vermont Law School. I'm also a professor of law. I teach evidence and air pollution law. And prior to joining academia two years ago, I was practicing law in Massachusetts. And most recently, I was at Conservation Law Foundation where I worked on a variety of issues, including climate change, and I'll talk more specifically about how that related to the Massachusetts Global Marine Solutions Act. And before that, I worked in private practice. So I'm going to focus at least initially on litigation that I was involved with relating to the Massachusetts Global Marine Solutions Act. And then I'd be happy to talk about the bill that's before your committee in Vermont as well. I'm going to try to share my screen. Jude, have you given me permission to do that? You're getting it now. Okay. All right, good. Okay, so my slides should be up. Yep, looks great. Thank you. Okay, good. I have a little bit of experience doing this from, I taught 70 students in my evidence class virtually the end of last semester. So I learned these skills. So what I'll talk about is a bit about the legislation that was passed in Massachusetts, the Global Marine Solutions Act. And I'll focus most of my time on the litigation that I was involved with to enforce the requirement in that legislation that the Department of Environmental Protection promulgate regulations. And then I'll touch on the administrative action to promulgate those regulations that occurred subsequent to the litigation. So some background. At the time that Massachusetts passed its Global Marine Solutions Act, it was the end of George W. Bush's second term. The federal government had totally failed to act on climate. There was an attempt with the Waxman-Markey bill that was unsuccessful. And in the upcoming presidential election climate was rising as a priority for what constituents expect of their candidates. The Massachusetts law was passed in 2008. And that was two years after California passed the First Global Marine Solutions Act in 2006. And it's also helpful to know that concurrently the Massachusetts legislature adopted another law called the Massachusetts Green Communities Act, which did a number of things focused on what municipalities can do, try to drive forward the adoption of renewable energy and promote renewable energy development. And so there is something to be said for the fact that Massachusetts was pursuing those dual goals at the same time. I think Vermont is probably a little farther ahead on that than Massachusetts was at the time when it adopted the mass GWSA. So certainly you're in a different position on that front. What the Massachusetts GWSA required was a 25 percent reduction. Well, I'll backtrack on that. What the statute actually required was that the secretary of energy and the environment in Massachusetts, which in Massachusetts is an umbrella agency that holds the Department of Environmental Protection, the Department of Energy Resources, the Department of Public Utilities, pretty much everything, environment and energy, transportation also. And the secretary had the option to choose which level of greenhouse gas reductions it wanted to. And I think I just said 20 to 25 percent. But I think it was actually 10 to 25 percent. I have a whole binder of this that's trapped inside Vermont Law School right now because we shut down for the pandemic. But the point being, the secretary opted to choose the highest percentage reduction. When push came to shove, he ended up feeling like that was feasible. And that's one of the reasons that the legislature included a range when it wrote the legislation was that there was some concern that it wouldn't be feasible to do a 25 percent reduction by 2020. But the secretary ultimately determined that it was. So he selected the highest percentage by 2020 and then an 80 percent reduction by 2050. And at that point, it was the most stringent law of its kind in the nation. And obviously, a lot of other states have pursued climate change laws, none quite like Massachusetts. And I think it's great that Vermont has included in the House bill some pieces of what Massachusetts did in the Warming Solutions Act in their state. The GWSA in mass included a number of provisions and you can see them listed here. They required a baseline assessment of greenhouse gas emissions and a business as usual projection and emissions registry reporting system and inventory plans to accompany emissions limits each decade. A requirement for interim emissions limits beyond the 2020 and 2050 limits and a requirement to promulgate regulations. And that's what I'll focus on today because that was the core of the litigation I was involved in. This is the language in the Massachusetts GWSA that establishes the requirement for regulation. So when it refers to the department here, that's the Department of Environmental Protection. And of course, each of these words was important and says the department shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions. And the heart of the lawsuit was what does this language mean? I should mention that so I was working at Conservation Law Foundation at the time that CLF filed this lawsuit. And I worked in our Clean Energy and Climate Change program and out of the Massachusetts headquarters office. And prior to litigation, there were long attempts to work with the agency to get these regulations. And there was quite a bit of back and forth. I'm sorry to interrupt you, but I'm wondering, I apologize. Senator McDonald, would you please mute your phone? I think he's doing some kind of conversation with his broker. Senator McDonald, are you there? Yes. Would you mind muting your phone while you chat? Thank you. Good idea. Okay, thank you. For the record, I want to journalize those comments from Senator McDonald. They're the nicest things he's ever said about me. Okay. Thank you. Onward. Okay, thank you. So I was just making the point that litigation was a last resort when this was going on. CLF had a lot of conversations in the offices of DEP about what is this language require? What did the legislature mean? And CLF was very involved in the passage of the legislation in Massachusetts as well. And there was also discussion with the legislators who were part of the passage of the GWC about what did the legislature mean when they included this language? Can I ask just very briefly, can you say what the language here means in terms of sources or categories of sources? Yeah, so that was open for the agency to determine those. I mean, sources, there's language in the definitions of the statute that make clear that we're talking about sources of greenhouse gas emissions. And it says for the end of this sentence here, sources that emit greenhouse gas emissions. But whether that meant, you know, a handful of power plants or whether it meant, you know, the electricity sector and the transportation sector, I mean, that is something that there was debate about and that was part of the lawsuit and interpreting that language. So I can, I'll talk about that a little bit more in the context of the claims in the lawsuit. In those conversations that preceded litigation, the agency really claimed that this language did not require them to promulgate new regulations that established limits on greenhouse gas emissions. They didn't read the language that way, and CLF did. And it became clear that we were at an impasse. That's the point at which litigation was filed. But I do want to make sure to communicate that was not the intention going in. The agency and actually the responsibility for writing the Clean Energy and Climate Plan in Massachusetts was that of the umbrella agency, the energy and environmental affairs. And so that plan was put out a couple of times prior to the 2020 deadline. The one you see here was the 2015 update of the plan. And this was the best source of information that the public had about what the state intended to do to address climate change and to implement the requirements of the state statute. And notably, there was discussion about existing programs for energy and climate. There was discussion of concepts and programs. But there was no reference to new regulations that the agency intended to promulgate in response to the Section 3D language of the global warming solution Act. And what CLF was looking for was regulations that ratcheted down total emissions from a source or category of sources. And the kind of key that we were looking for was that it had that year by year ratcheting down for the totality of emissions for the source or category of sources that it was emitting. And that became the heart of the lawsuit. And I'll give some examples that I think help explain the difference there. But point being, there's regulations and then there's regulations that comply with Section 3D. And it was the lack of the specific type of regulations that the statute required that was the focus of the lawsuit. And I just to understand that a little better. So Massachusetts already had regulations that helped or reducing greenhouse gas emissions that predated the Global Warm Solutions Act. But are you saying that those regulations weren't within a framework that said you need to apply them in such a way as to achieve that sort of ratcheting down that you were talking about? So you may have them, but they're not sort of driven to a target clearly enough. That's right. And when you say Massachusetts had regulations that were reducing greenhouse gas emissions, I mean, they were not globalized climate regulations. They were regulations, and I'll give a few examples of what was brought up in the lawsuit, but regulations that had the effect of hopefully reducing greenhouse gas emissions, but did not guarantee a limit on greenhouse gas emissions for the sources that they were regulating. Thank you. Sure. So to give a bit of background on what the litigation looked like, the plaintiffs in the litigation that ensued were four teenagers, Conservation Law Foundation, and an organization that at the time was called the Mass Energy Consumers Alliance. I think they're now called the Green Energy Consumers Alliance. The four teenagers were among, I think it was hundreds of teenagers that filed a petition for rulemaking with the Massachusetts DEP about this requirement in Section 3D of the statute to pass regulations. So this was a large group of youth that asked the DEP to do the same thing that CLF asked them to do. And CLF was not behind that petition. CLF joined as an organizational signatory for that petition, but this was on the youth's own initiative. And the four teenagers that ultimately became plaintiffs, in this case, were part of that rulemaking. And DEP issued a response to the petition for rulemaking, which we included as an exhibit in our lawsuit. But essentially, they said the same thing that they said to CLF, which is, we don't interpret the law that way. And Mass Energy Consumers Alliance is an organization that promotes access to clean energy for low and middle income consumers. And not a litigious organization. They had never been involved in litigation before, but felt that this was so core to their mission that they needed to join. The defendant in the lawsuit was the Mass Department of Environmental Protection. And that was it. The governor wasn't named. The commissioner wasn't named. It was just the agency itself. And there were two claims, similar in nature. A request for a declaratory judgment that DEP violated the statute, the GSA, by failing to issue regulations compliant with Section 3D. And I'm not sure how many of your members are familiar with language like the declaratory judgment, but that's just where the judge issues a judgment saying that, yes, the agency violated this law. And the second claim was a writ of mandamus compelling DEP to issue regulations compliant with Section 3D. And that is basically what it sounds like, the court saying, you have to issue these regulations. And these are similar claims. They're a bit different in terms of their standing requirements. But essentially, we were asking the court to say, agency didn't do it, and they have to do it going forward. This is the summary of the two core sets of arguments in the litigation. One was focused on statutory interpretation, which I believe was your question, Chairman, and I'll talk about that in some detail. And then the next was whether regulations that DEP had in place satisfied Section 3D. So first, let's talk about the statutory language. Again, here you have the language from Section 3D of the statute. And I'll read it again just because it's a bit confusing and we should have each word in mind. The department shall promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources that emit greenhouse gas emissions. DEP's argument about this language turned on the inclusion of the phrase desired level. And both sides went back to the legislative history to try and understand what the legislature meant by desired level. The legislative history did not provide much guidance on that. But DEP had the opinion that the phrase desired level meant that DEP was only required to establish aspirational goals or unenforceable targets. And that's the language that they used. Even though the language of Section 3D does include the word limits, they were essentially saying that because the phrase desired level was included that it modified what limits means. And it also claimed that because the word limits is used throughout the statute in a way that more clearly means limits, that by including the phrase desired level in this section of the statute, they clearly meant something different. That was their interpretation. Can I ask a quick question on that one too? So Vermont has right now aspirational targets for gas reductions and the bill proposes to actually make them statutory targets instead of aspirational goals. What was the situation in Massachusetts at that point in terms of was it aspirational? Was there a ratcheting down spelled out somewhere in statute? No, there wasn't. And I think the difference is that it was a different time. I mean, this was 12 years ago that this was passed. And so Vermont took the step to start with aspirational goals and now is getting to this point later. But at the point that Massachusetts was getting in here, they just went straight to limits. They didn't take the first step that Vermont took of doing aspirational goals first. But were the 80% or was that in statute that helped achieve this? Not prior to the GWSA. That's what you're asking, right? Yeah. So that was DEP's argument. The plaintiff's argument was that this language in section 3D was a clear mandate for limits, that the regulations that the DEP had to promulgate required limits. And what we said that section 3D language meant is that they had to pass regulations that did the following, that addressed multiple sources or categories of sources of emissions, that imposed a limit on emissions that could be released from those sources or categories of sources, that that limit before the aggregate emissions that were released, and that the regulations set limits for each year that decline on an annual basis toward 2020. And I haven't mentioned this yet, but the requirement for regulations, of course, this was passed in 2008 and then there were a couple years for allowed in the statute for DEP to go ahead and get these regulations in place. But the idea was that DEP would hustle, I mean the idea that the legislature I think had is that the DEP would hustle and get these regulations into place, and then there was actually language that the regulations would sunset by 2020. And so that had a role in understanding what the purpose of these regulations was, the fact that the sunset was included. Sure. And what year was the litigation brought forward? Litigation was filed in, the complaint was filed in 2014. They were required to have the regulations promulgated and in fact by January 1st, 2012. The slide that I pulled up here has the whole timeline. So right, it was six years after passing the law before you filed or before. Yeah, so the regulations should have been in place by 2012 and the conversation was happening not just between 2012 and 2014, but before that in anticipation of the DEP deadline. So DEP had quite a while to do those regulations and didn't. So are there any questions about that language, the way that we interpreted the language of Section 3D and what types of regulations we had in mind? I'm going to talk about the different regulations that were at issue and that might help eliminate it a bit more. So DEP used an in the alternative argument. They said, you know, the GWSA language did not require us to do regulations that established the limits that you plaintiff say we were required to do. But even if you're right, even if the court accepts your interpretation of what Section 3D means, we still have regulations that satisfy the language that you say we had to meet. And they put forward three sets of regulations and asserted that they satisfied the requirements of Section 3D. And those were the low emission vehicle regulations, sulfur hexafluoride regulations, and the regional greenhouse gas initiative regulations. And I can talk briefly about why we felt that each one of those did not satisfy the requirements of Section 3D without getting too much into the weeds. So the low emission, was there a question? So I mean, to overall they're saying, yeah, we didn't write new rules, but we already have rules in place and they're doing a job. Yes. Yep. And then so it became the battle over whether these regulations were doing the job. And I mean, one argument that we made was obviously these regulations were not intended to satisfy Section 3D because they predated the passage of the mass GWSA. And that was true for one and three that you see on the side here. The sulfur hexafluoride regs were passed after the mass GWSA. But so for the low emission vehicle regulations, this is California as an exception to the Federal Clean Air Act, has the authority to establish their own more stringent emissions limits for cars. And the Clean Air Act provides that other states have the opportunity to either follow the federal guidelines or they can adopt the more stringent California guidelines. And a number of states, especially in the Northeast, choose to adopt the California regulation. That's been happening since, I think, 1990. And, you know, every so many years, whenever California updates their regulations, everyone else who follows the California model also has to adopt the new regulations. But to be clear, Massachusetts has to adopt the California regulations exactly. They can't be more stringent than what California does. They're just re-upping their commitment to do what California does. And, you know, Massachusetts could at some point decide that it doesn't want to follow the California standard and go back to the federal standard. But so far, Massachusetts has just continued to follow the California standard, which is great. And they had, I think in the period between 2008 and 2016, adopted, you know, an updated version of those California regs. And so they claimed that because that was in the period, and I can't, I can't actually remember whether it was, you know, just before the mass GWSA or just after, but they felt that that was adequate in terms of timeline. And from a, from a substantive standpoint, the reason that we felt, aside from the fact that obviously these were not promulgated to satisfy the GWSA, even if you just looked at the function of the regulations, they also would not satisfy the requirements of the GWSA. And that's because if you look at this language here on the bottom, the low emission vehicle regulations apply to, you know, multiple sources or a category of sources, they apply to, you know, the vehicles that are regulated. They impose a limit on emissions, but they don't limit the aggregate emissions released. Aggregate emissions released for a category of sources would mean that there was a cap on the total greenhouse gas emissions from the types of cars that are regulated by the left program that would ratchet down year by year on a declining basis. What a what the LEV program does is establish an emissions rate, an acceptable emissions rate for each car or for a fleet of cars. It's actually the average of a fleet of cars that it applies to. But because there's no limit on aggregate emissions, if you add more cars to the fleet, the total emissions go up. So a rate in itself is not a limit. And that was really the core of the issue, the difference between a rate and a limit and whether a rate would limit aggregate emissions. And we said that it couldn't. And, you know, one of the responses of the court at the trial court level was, so are you saying people can't have new cars anymore? And of course, that's not what we were saying, but we were saying these regulations aren't suited to do the job that this statute requires. We're not saying they're bad regulations, they're great regulations, we're glad Massachusetts has them, but they're not suited to do the job that they're charged with for this type of statue, for what Section 3D requires. The Regional Greenhouse Gas Initiative, that argument was similar in that, or actually, sorry, the sulfur hexafluoride argument was similar. So sulfur hexafluoride is a greenhouse gas, a very powerful greenhouse gas. It's used to insulate switchgear equipment. So in electric transmission systems, if work crews need to go in and make repairs, they have to, you know, turn off the electricity to make sure that they're safe in doing that work, and the sulfur hexafluoride insulation assists in that. So it's a very, very few number of sources that this applies to very little sulfur hexafluoride leakage happening in the state, but it is a very powerful greenhouse gas emissions, much more potent than methane even. And the sulfur hexafluoride regulations were the closest in looking like a Section 3D regulation, because unlike the others, they did include a year by year ratcheting down, but it was of the rate of emissions. The rate of emissions had to decrease year by year, because, same thing, because if you added more transmission lines that required sulfur hexafluoride, you'd increase the net total of sulfur hexafluoride, and therefore a decreasing rate would not limit the aggregate emissions from sulfur hexafluoride. The same rate argument as from the LEV regulation. And then finally, the regional greenhouse gas initiative regulations, as I'm sure you're familiar, is a regional program to reduce greenhouse gas emissions for power plants over 25 megawatts. And the way the program works is that it's a cap and trade program. So theoretically, half of the states could increase their emissions if the other half of the state decreased their emissions sufficiently that it offset the states that were increasing. So there was no guarantee under Reggie that Massachusetts would reduce its emissions. Obviously, that's the goal, and CLF played an instrumental role in Reggie becoming Reggie and continuing to advocate for funding for Reggie. And like all the other environmental advocates is very supportive of Reggie. And so it was not a position we wanted to take to have to argue that it didn't do this job. But even though it's a great program, it again wasn't the right kind of regulation for this law, it wasn't going to ultimately limit greenhouse gas emissions. And how can you ultimately get to 80% by 2050 if you don't limit greenhouse gas emissions? Okay, so those were the arguments. The procedural history here was we talked about this timeline before the complaint was filed. The claim was brought in State Superior Court and the State won at the Superior Court level without getting to the point of a trial. The decision was made after some re-judgment motions. After that, the plaintiffs filed a notice of appeal, which would have gone to the Intermediate Court, the Mass Court of Appeals. But we requested direct review by the Supreme Judicial Court, which is the highest court in Massachusetts, which is granted rarely, but in urgent situations or in situations where the Supreme Court knows it's going to want to weigh in. And so that was granted quickly. And so we went up to the highest court and we argued the case in January 2016, and a decision was made in May 2016. And it was it was a total win for the plaintiffs, overturning the Superior Court decision. And this is the key language from that decision. So one of the plaintiff's names is about Cain. So the name of the case now is Cain B. D. E. P. And that's the citation for the Supreme Court opinion if you'd like to read it. But the gist of this language here is that they found the language of Section 3D to be unambiguous in meaning what the plaintiff said that it meant. And furthermore, that the three regulations that D. E. P. put forth to argue that they had satisfied Section 3D, even using our interpretation, that they fell short of complying with the requirements of Section 3D because they failed to ensure the type of mass-based reductions, which is the opposite of rate-based reductions. So that told D. E. P. that they had to go back and they had to do the kind of regulations that the GWSA actually required. And there was a lot of language in the decision about the importance and urgency of addressing climate change. And I'll just share anecdotally, there was one justice on the Supreme Judicial Court that I was particularly concerned about. I argued the case before the Supreme Court. And of course, I had studied up on each of the justices. And there was one who was known to be particularly conservative. And I swear he looked like he was writing his grocery list while I was arguing. It just felt like a lost cause that he just wasn't even interested. And he's the one that wrote this opinion. And it was a unanimous decision. So that just really told me something that even to him, it was a very clear legal argument. I don't know if any of you have been paying attention to the Supreme Court decision that came down, the United States Supreme Court decision that came down this week related to the Civil Rights Act and the rights of LGBTQ community. But that was a similar situation where conservative justice were able to get on board because it was a very clear kind of basic, boring legal argument. It didn't need to be political because it was just a very clear legal argument. And that was exactly the case in our GWSA case. We didn't follow the model of what some other organizations have done with kind of novel legal theories or this was just straightforward. This is what the law says and they didn't do it. And I think that's a big reason why we were able to be successful. And I have a curiosity question. So in the background, so here's Massachusetts passing this progressive law, aspirational law. And the DEP seems like it's resistant to a full implementation of it. So how is it that you passed such a law and was there a change of administration? There wasn't. No, it was Governor Deval Patrick who was, it was his administration when the law was passed. And it was his administration that, and his commissioner at DEP that interpreted Section 3D the way they did. I mean, during the pendency of the litigation, Governor Baker took office. And it's interesting because the mass AG under Deval Patrick, the AG doesn't have to take the position of the administration, but they can. And in rare instances, they won't. And when Mora Healy came into office in the AG in Massachusetts, who's known to be quite progressive, she continued to represent the position that the former AG had taken. And I get asked this a lot, why did they oppose doing the regulations? I don't have a clear answer other than that they must have thought it would be difficult. They may have thought that it would be unpopular with certain parts of the business sector, or they maybe just really believed their legal argument. I mean, I never found their legal argument to be persuasive. I think their statutory interpretation argument was quite tortured. So I just have a hard time believing that that's it, but I don't know. So after the litigation, the agency moved forward with promulgating regulations and really got right on it. And in fact, Governor Baker actually issued an executive order telling the agency by what time they had to have these regulations promulgated. And so they went through, you know, the administrative procedure process and took public comment. And ultimately, they issued six sets of regulations to comply with Section 3D. And, you know, as you pointed out earlier, Chairman, there was some question as to how far they had to go. And we didn't in by that, I mean, how many sources or categories of sources they had to address in their regulations. And in the litigation, we made the strategic decision not to focus too much time on that because we just felt the legal arguments weren't as clear about how far they were required to go. I think the bill that's before you has more detail in that. And I think that that's much smarter, the better way to write the law. But I think because the DEP was so unsuccessful in court in the end that they took that to heart and ended up promulgating regulations that applied to a broad swath of sources, including transportation, power sources of various kinds. And so I think everyone was quite pleased with the regulations that got put out. DEP was sued over some of this from the business sector. And but DEP prevailed. So the private the private sector that sued was unsuccessful in that challenge. Can I have a quick question? So on aggregate emissions for sources or categories of sources, is there an overarching, you know, statewide aggregate for total emissions? That's the umbrella for these individual programs, so that there's no specification as to what kinds of rules need to be written. But they do need to add up so that the state as a whole reduces emissions, emissions according to a schedule. I mean, the schedule would be what's laid out in the statute, the 25% reduction by 2020 and 80% by 2050. The question that came up and one of the justices asked about this oral argument was, do the 3D regulations on their own are they responsible for getting this 25% reduction by 2020? And we said, I mean, we try to avoid answering that question because, you know, it'd be great if they did. I don't think the language requires that. I think it's those regulations in combination with other programs and policies that the state was pursuing. And this plan here had lots of other things that they planned to do that, you know, they stated in combination with ultimately the regulations that they did pass would get them to 25% by 2020. But there was no, I think what you're suggesting is, was there some other cap that applied specifically to the 3D regulations in total? And there was not. Okay. But is there a cap for the state as a whole expressed somewhere? So that no one can say, Oh, that category is excluded. We can admit we don't have to worry about category X or I mean, the category was included. Did you have your say is economy wide? So it's it's everything. Okay, thank you. Yeah. All right. Well, thanks for that. Yeah, I think that's about that's about what I've got on the Massachusetts litigation. I have a question. Sorry. Yeah, can I ask a little more about the rules? Yeah, sure. We've talked about rulemaking in this bill. And there's a, I think, legislative council has pointed out to us that the timelines related to rulemaking under the proposed law are as short as allowable statutorily. So I'm wondering if you've looked at all those timelines, or even if you haven't, if you could say something about how long did it take to put these rules into place? It was quick. It was quick. The agencies can be as quick as they want when it gets to putting regulations out. It's a question of whether the motivation is there, in my opinion. I did look at the the bill and looked at the timelines and I thought that they were realistic that, you know, they were they were ambitious, but doable. Do you know if Massachusetts in terms of getting out there were quickly, was that in part because the writing was on the wall, there was background work going so that once Governor Baker said, through his executive order, that you need to get these rules out by date, a date certain or whatever, that they were ready to go? No, I don't think so. Because frankly, I don't think anyone expected us to win our lawsuit because it's there's a lot leaning in favor of an agency in getting deference from the court and how they interpret their enabling legislation. That's the nature of administrative law. And so I think they thought they were going to win. So I'd be very surprised if if they were putting these things in motion behind the scenes. I obviously can't say for sure, but I doubt it. Right. And are you referring to like the in general sort of the idea of courts giving deference to regulating agencies according to like a reasonable standard, which is not that aggressive, right? Right. It has to have been arbitrary and capricious. And that's what case law requires. And that's a difficult standard for an advocate or whoever is suing the agency to overcome. Okay, great. Thanks so much for that. I don't know if there's committee questions on the presentation. And maybe with that, I don't know. Yes, Senator McDonald, please. How many years was it from when this law was passed to when rules were actually written? I think it was the law was passed in 2008. And I believe these laws, these new regulations were promulgated in 2017 and 2018. So I use World War Two as the measure of time. And that's about two and a half times American involvement in World War Two. Thank you. Sure. Not because it had to take that long, but because you chose for it to take that long. Yeah. And you guys have done well. So one thing before I forget to say congratulations on arguing winningly at the Supreme Court. Thank you. So I don't know. We were asking to get this as sort of a background. What was that next door neighbor doing to maybe take some lessons learned from that point of view as you now you're here. So you're probably pretty aware of what's going on here. Are there lessons learned from Massachusetts that we can apply to the work that we're engaging on Global Warming Solutions Act? Yes. And I'd be happy to talk about the Vermont bill. I do just want to say I shared a law review article with you, Chairman, that is designed to take the lessons learned from Massachusetts and give other states some guidance on how to learn from the experience in Massachusetts and passing their own law. And that was published this month. So it's very fresh off the presses. And I urge not just because I wrote it and I hope someone reads it, but I do think it would be very helpful for the process that you're going through right now. And so I hope that will be circulated. By way of encouragement, there it is. And it was secured to everyone on the committee. And it's on our committee website page. So thank you. You're welcome. My general takeaway is that Vermont has done an excellent job of learning from in the bill that you're considering of learning from the experience in Massachusetts. And I think it's quite artfully put together. I've looked at all of the other states that have Global Warming Solution Acts. And I've had my students do a line by line comparison of what they all do and what they've accomplished. And it is a failure of many states to not include language like Section 3D and their statutes that create a hook and that aren't just aspirational goals. And as you've experienced in Vermont, there's a downside to just having aspirational goals and that you don't do anything. Your greenhouse gas emissions can increase. They don't do anything to ensure that you get where you're trying to go. And I think that the Vermont bill has not only done a good job of learning from the experience in Massachusetts, but also includes a lot of lessons learned from Maine with the creation of a greenhouse gas emissions council. And Maine is a state that has a lot of the same... Well, I'm new to Vermont, so I shouldn't characterize it. But I see some similarities in some of the demographics in Maine and Vermont and some of the political concerns. And so I think that framing a bill that takes the best parts of Massachusetts and the most appropriate parts of Maine and brings those together is very wise. I think it's an excellent bill. My question is a quick question. Yeah, Senator Campion, please. So I just want to get a sense. So in our New England states here, Massachusetts and Maine have already advanced in this area. So we're not at the bottom, but we're, you know, we'll be probably the third. Okay. Well, I had anything more specific about the sort of lessons learned for Vermont? Um, yes. I understand there are a few questions. And Termin, you sent me a few questions that I've given some thought to. And so I could speak to those directly if that would be helpful. Sure. I think if you could repeat the questions while you answer them, because I don't know that we're all going to see, we're still seeing your screen. Sure. Would you like me to put the questions up? Sure. So committee, these are questions we've discussed and I thought while I give Professor Rushlow a head start on seeing them. Yes, I want to be helpful. Okay. So I don't know if you can, if it's too small to read or not, but these are the issues that you said that the committee's wrestling with. So the first one was, is it appropriate for the legislative branch to create a panel of unelected individuals who then write a plan that becomes the basis for rulemaking? And I try to think about this from a couple of different perspectives, first from a legal standpoint and then from, you know, more of a political and substantive standpoint. And from a legal standpoint, I think it's entirely proper unelected officials inform agency decision making all the time. In fact, it's baked into the administrative procedure process and required. And it strikes me that the legislature is delegating authority to the council and that that is permissible through delegating that authority to the council. It's recognizing that there's a lot of different stakeholders with expertise and different viewpoints on these issues and probably more involvement with them day to day than even the legislature has. And there's a lot of value in having them dedicate their time to wrestle with these challenging issues. And my understanding is that it's common for the legislature to create these kinds of diverse stakeholder groups. The rules that would be issued would be consistent with the plan recommendations that would come out from the council but would not be a word for word adoption of what the council requires. And only the agency, as usual, has the authority to promulgate the rules and the legislature would have the opportunity from my understanding to be involved at various points along the way, including before they're promulgated and obviously would have the authority to legislate before, during, and after on anything it so chooses. So I don't see this as problematic in terms of handing that role to this group of stakeholders and experts. From a political standpoint, I don't see any problem with it from that point of view either in my humble opinion and that I think there's a lot to be said for the legislature. I mean, the reason that the legislature turns over rulemaking to administrative agencies is because administrative agencies specialize in the issues that they issue rules on day to day. And the legislature doesn't have the time or opportunity to specialize at that level, being a general assembly. And so I think the same argument is true for diverse stakeholders. And frankly, with something as challenging as regulating economy-wide greenhouse gas emissions limits, I think you'd be very wise to include a diverse set of stakeholders in shaping those regulations in order to have buy-in. And certainly I think that would go very far in avoiding litigation too, because you'd be bringing people along in the process. And from a climate standpoint, of course, it's so much slower to have to go through the legislative process for every step along the way. And this is truly an emergency. And I know the state has acted expediently with regard to the current pandemic. And this requires a similar emergency response. And so anything that slows that down would not be available. So that's what I would say to the first question. For the second question, does the legislature need to ratify the climate council plan before it goes to ANR for rulemaking? I would say no. The process in the bill gives direction to ANR before it undertakes the rulemaking through the delegation to the council. And the legislature is inserting itself quite a bit into that rulemaking process in the sense that it appoints two-thirds of the members of the council. The council has been instructed with clear intent in the language of the bill to shape the direction they take for what the rulemaking will look like. I know there's several requirements for checkbacks with the legislature along the way. And as I mentioned, of course, the legislature can respond. I mean, the legislature has an enormous amount of power and ability to weigh in on these issues with additional legislation if it feels that's necessary. And then the last question was, should only executive branch members of the climate council be able to vote thereby creating the legal basis for holding the plan for achieving the goals? I would say definitely not. I'm not sure why you'd have a council if you weren't going to allow all of them to vote. It would really reduce the buy-in of the ultimate plan, which I think would increase the risk of litigation. And I don't think you want to put all of the power for this decision-making solely with the executive branch. I mean, that's definitely a lesson learned from Massachusetts where imagine if some of the environmental stakeholders had been at the table with DEP, that litigation would have been avoided entirely. But because the executive branch dug its heels in and couldn't keep it moving, things got uglier. So I think having a diverse set of stakeholders is a really artful way of avoiding that and keeping the executive branch moving. Okay, great. Senator McDonald was sharing an example of a council that got stymied because the secretary administration who chaired it did not call meetings. And so one of their sort of safety provision we were considering was that something along the lines of the majority of the council could call a meeting. I saw that. And I also saw that if the council neglects these, the ANR is required to move forward with rules. And I think that's that's also a smart backstop because you want to make sure that nobody's getting hung up along the way if we're going to meet these guidelines. Right. Mr. Chair. Yeah, Senator McDonald, please. It's one of the other ways to meet. I think perhaps meet the test that the witness suggested was whether or not the legislature had an opportunity to intervene during the rulemaking process. And for our state, which meets from January to May, usually, that's the intervening time. Whereas in Massachusetts, there are pretty much a full-time legislature. So the legislature can intervene in rulemaking if it does so by a majority votes. So I think that's another way to resolve the question of what to do when the rulemaking gets off the rails or people believe the rulemaking is off the rails. Cool. So we sort of haven't resolved that yet. Well, in Massachusetts, there's a there's a Senate committee, for example, on global warming. And that I know that committee would call call with the word I'm looking for would call advisory meetings and bring in members of the executive to essentially defend their actions and how they were moving forward with implementing the Legislature's Act. And I do think that there was some helpful accountability there with the legislature being able to keep an eye on what the agency was doing without having to formally pass a bill or take that level of action. That's something that can be easily done without a lot of you know. In a normal year, Mr. Chair, we would be well would have adjourned. And by now, probably a month ago, and any rulemaking that was taking place would would be go unaddressed or reviewed by the legislature until following the next election. So we have a it is more we have a greater challenge in how to structure an opportunity for the legislature to intervene. So I will say, I don't think the Massachusetts legislature for what it's worth side as its role to intervene and what the agency was doing. I mean, they did. It was it was mostly after the litigation that they got involved in making sure that he was moving forward. But I think, you know, the legislature wrote wrote the bill so that the experts could execute the regulations and knew that there were checks and balances like third party lawsuits to make sure that they did it. But I just in Massachusetts, at least I don't I don't think that that was ever a way they were looking at, you know, the separation of powers here really. Well, I suppose it's probably true that the only tool you have is a hammer. Everything starts to look like a nail. So we might, we might be overly inclined to do things a certain way. Senator Campion. I think and share. So I just want to go back to Senator McDonald's question because I'm not sure I follow it. Is Senator McDonald are you proposing that there might it might make sense for the legislature to not interrupt, but get involved with the rulemaking process at a certain point when it feels as though it might not. If you will be moving in the direction that it agrees with. We did that for sewage in the act and the 10 acre loophole 10 years ago, we did it for Vermont Yankee. We said they're right, you know, they can't do an upgrade on their on their plant if the legislature votes not to do it. And low and that was the law and you know, the plant agreed. And then when the legislature didn't vote to do it, they went to court and we got beat. Well, and Mr. Martland shared our the timetable with us last meeting. And I think it does have a rule being completed while we're just about to go home roughly a May, June timeframe. So it's not, we have been, I would say, a little less artfully than Senator McDonald. We've been skunked on having things not issued while we're still around. And then they come out while we're gone. And it just puts us in a place without no mind. We have no tool over and over again, ATV rules or things like that. Lots of things, lots of things. We do have a joint energy committee, although it's been renamed. So that's a that is a whatever a committee that meets you around or at least at some points it does. So we're looking at tools to just stay engaged. All right, well, are there any more committee questions? And I guess while we're all still gathered on this question, Mr. Martland, you've been quietly attending. I don't know if based on this morning's presentation and discussion, if you have any things you want us to keep in mind, big breath, put on a table again. No, thanks. And I don't have any questions. I thought it was a very interesting discussion. So thank you, but I don't have anything to add. Okay, thank you. Well, I'll confess that I started on the article, but with all the things going on, I'm not done yet. So I'll look forward to reading through and following up a little more on one side. Better informed. Start at the end. So make sure you get to that point. At the end and go back to the beginning. Okay, great. Well, thanks very much for joining in this morning. It was very helpful. And with that, I think, unless there's any more committee discussion right now on what we might consider doing, the few things that we had on a list were might we alter the rulemaking timeline in order to help ensure that we were around and saw a rule before it went off to, well, yeah. And another one was might we change the provisions of the conduct of the council in order to make sure it's not stymied by never being called to meet that there was implying that will happen, but it would provide recourse in case things weren't moving as quickly as we all hoped. And then last meeting, our council points out that there's a small technical error just in numbering of sections. So if we're doing anything, we should tidy up while we're in the neighborhood. Script is there, Mr. Chair? Yes, sir. So any other committee discussion on that? Okay. Well, then, thank you again. Thank you very much. So that concludes our work for today on GWSA. And now we will put on our Act 250 hats again. And on our amendment to S239, there's some trails language. There was a meeting yesterday that was examining that language more closely. And, you know, I'm looking to see, yeah, Warren Coleman is in the room. Why don't we, as Warren was the one who was acting as kind of a liaison between that group and this committee, I'd ask Mr. Coleman to just explain what you all looked at and concluded and recommended, which is language everyone in the committee has received. Yep. Thank you for sharing that email around last evening, Senator Bray. It looks like you're up working late judging by the timestamp on the email. So the language that we're talking about is it is provision Z. So this was one of the, this was one of the exemptions in the trail section that previously read, until January 1, 2022, no permit is required for Vermont Trail Systems Trail recognized pursuant to Chapter 20 of this title, if the trail was in existence prior to July 1, 2020. And I think everyone ultimately supported that and understood that that provision was going to deal with any outstanding or prospective jurisdictional questions with regard to any Vermont Trail Systems Trails. Upon talking with Matt Chapman who's A&R General Council and I see him on the on the screen and then later Greg Boebel and Ms. Snelling, what we thought about and quite frankly what Matt helped flag was that we might need to add in this notwithstanding language because there are a couple jurisdictional questions issues that are out there that are out there right now. And as you all know, most legislation is prospective. So I think we were all under the understanding that this language was going to send a clear direction to the NRB in terms of a policy direction that if you're a Vermont Trail Systems Trail there's no jurisdiction, no Act 250 jurisdiction for this discrete period of time. What we're flagging and why we want to add this is we don't we wanted to be sure that it also addressed the issues that are the handful of issues that are out there pending right now. So that's in short the reason for the reasons for the language. I can go into more detail if you want but that's the that's the crux to the name. Thank you. I mean I think the question we explored a number of times in committee was what was the impact of the proposed legislation on any pending JO or so that we didn't we don't want to we do want to misstep within the legal system so or and if we wanted so it sounds like this is a being particularly explicit about the fact that we're putting ourselves into sort of an extraordinary circumstance. During this 18 months we are not using our normal jurisdictional rules we're declaring that a Vermont Trail System Trail that does not exceed 10 or more acres of included land during the 18 month period either through improvement or construction. Let me stop you're going to stop the senator who said you're bringing two issues together that are different. This is really looking at any trail any Vermont system trail is in existence as of July 1 2020 and saying that if there is a question about whether there's Act 250 jurisdiction on something that exists not something new not something that would trigger a permanent amendment but something as it exists on July 1 2020 which is just around the corner that Act 250 somebody somebody wants to ask the question of whether there's Act 250 jurisdiction for this period of time that the answer is no there is not jurisdiction. The rest of the bill what you are starting to describe is what we have said for anything that's new so going forward and remember Senator McDonald we had this discussion a week or so ago. Look at this is sort of a more historic piece and look at the other parts of the bill where you've added clarification on 10 acres public purpose what gets included what doesn't as as as prospective looking forward to control what somebody might do if they're building building something new so I just want to make that make that make that distinction this is really saying whatever's in existence as a July 1 2020 and if you're a Vermont system trail you don't need an Act 250 permit for this for this discrete period of time is that okay um and just to sort of imagine how things could also play out so this is back to the prospective side if I'm a current trail and I say in the coming year I would like to add a mile of trail and the amount of included land is going to be 1.2 acres I'm still allowed to continue to do that work because I'm under the 10 acre included land threshold of our mont trail system trail correct correct that's correct so on the retrospective side no uh we're not under Act 250 going forward we're looking at the the rules as they currently exist as someone would consider any additional improvements to an existing trail that's correct okay I think that's well I'm wondering if if I may so how would this specifically impact kingdom trails and uh victory hills I was anticipating that question senator good um and they are uh they are they are slightly different this is designed to create a path potentially for for both of those um by a path I'll elaborate um so they're in both of those two issues both of those two matters are in different procedural stages um kingdom trails there was a fairly recent jurisdictional opinion request by by third party not a neighbor just somebody that asked for jurisdictional opinion um the the nrb and the district the district coordinator uh have uh any and and kingdom trails have put that request on hold um till I think it's July 1 actually because I think everyone was realizing that um your body the legislature may be taking action on on recreational trails so rather than sort of go deeply into that inquiry they said let's call a timeout and see what the legislature does so that one's at the very early stage where request has been made but no decision by the district coordinator as to whether there is or is not jurisdiction has been rendered so that's that's the status of that one so are you so representing these guys in this or are you representing this trails group I'm trying to get a sense it seems like there are certain things being done here for these two groups specifically so the kingdom trails is a member of the organization which is the Vermont Trail Alliance that I represent and the other so that's I was going to explain that status so and then and then and then that as well so they are currently they're currently not a member of the Vermont Trail system okay they are currently not a member of our organization um the Vermont Trail Alliance which I'm representing just for background and status uh there was a jurisdictional opinion that was uh was rendered um to make a long story short that was appealed that's at the environmental division and the parties to that proceeding have also agreed to uh stay that proceeding until July 1 again uh pending interest in knowing that you guys you that the legislature may take action that would potentially alter uh or inform that uh that appeal so they're currently not a member of the Vermont Trail Systems Trail which is a prerequisite uh under this under this language um so there's I guess a potential that they could ultimately become a Vermont Trail Systems Trail member um but they are currently not and they are currently not a member of of the VTA but that's the status of the two so so the language that we originally had in the bill and now that we're trying to clarify I think does provide clarity with regard to the Kingdom Trails uh situation I would say it's less clear for for the victory hill because they are not currently a Vermont Trail Systems Trail so then I just want to it sounds like there's two things you're distinguishing on Kingdom Trails they're in they are a member of the the Vermont Trail System yes okay and there's uh there's no issue J.O. yet there is request but it's in process the Liberty Hills is there has been a J.O. issued it's under appeal and they're not members of the Vermont Trail System currently they're not currently they're not so if this legislation uh were to pass the the Rube forward for Kingdom Trail seems like they are quote-unquote taken care of by the the the bill for Liberty Hills if they wish to avail themselves of the opportunity offered they would need prior to July 1 of this year to become a member of the Vermont Trail System that's correct okay all right you got it um anyone else in this working group want to weigh in offer a gloss concern consideration whatever okay if not I would like to turn to our council and ask Mr. Kowsky do you have information you want to share with the committee as you have each day to help keep us moving I do okay let me share my screen so um I received the proposal to add the notwithstanding one VSA 213 language only within the last few hours and so I'm feeling a little bit rushed in conducting an analysis but I did want to flag an issue especially just based on that discussion about two different entities going through two different legal processes so the citation to chapter to section 213 uh specifically affects lawsuits so notwithstanding that provision only affects lawsuits in a judicial court whereas section 214b uh that actually refers to non-judicial proceedings and so I think if they're if um we're talking about a jurisdictional opinion I think we also want to cite section 214 uh so that's the first thing the other thing is that as we just as was just discussed we're entering kind of a really complicated area regarding prospective and retro retrospective application of statutes um yes and there is a lot of case law on this um there is a lot of case law uh in regards to using the phrase notwithstanding section 213 or 214 um I have been attempting this morning to sort of analyze based on the precedent and it um the legislature has used that phrase notwithstanding section 213 and 214 before um however there is mixed case law there is a recent ish case that held a separation of powers issue um so I want to just flag that as a potential issue although I don't I haven't fully analyzed whether or not this is a strong risk so the legislature uh the executive branch and the judicial branch all have uh separate powers and under the the doctrine of the of separations of the power you each each branch needs to stick to what their assigned powers are and there is a risk when you are enacting legislation that's affecting ongoing legislation litigation whether or not you are intruding on either the judicial branch or the executive branch's authority to um to interpret or execute the statute so the legislature uh enacts the statute the the executive branch executes the statute and the judicial branch interprets it so um I don't know I I am not certain what the level of risk is here because I am still trying to sort this through but there is a risk and um but I think if you are going to move forward do you want to include the reference to 214 if you're trying to reach uh jurisdictional opinions um and so I'm sorry if you're only seeing that this morning let me start with that I included you in although it's a little late 10 o 1 p.m. email off to the committee since it was arriving late I was trying to keep things moving I don't we have a little window to work in here so thank you for flagging the nuances of where we are um and I guess I would uh so that is very helpful since we're trying to quote-unquote fix something we want to make sure we fix it right um so for the group that met yesterday to bring this issue forward do you have any I don't know if you examined what Mr. Chakowsky is flagging for us and has some or you have some thoughts on it now what's the status I guess I'm I'm reading 214 now and I was uh hoping somebody like Matt Chapman might um might weigh in just given his familiarity with with uh with these provisions he's appreciating your flagging over there I can see sure I mean I'm I'm happy to sort of I mean I guess my thoughts with respect to this are that that while I agree there you know there's certainly theoretical separation of power issues related to this I think it's there's more than several occasions where the Vermont legislature has exempted certain laws from the application of section 213 and 14 to evidence of its intent to have something apply retroactively um you know there's a general presumption both in the court system and in the construction statutes of statutes to not have them apply retroactively if it's your intent to basically um have them apply to either a proceeding that is currently pending in court or a proceeding that is currently pending before a district commission I think the absence of the the notwithstanding clause would prevent us from the law in place on the date those those actions were filed would apply to those proceedings okay so just for my plain understanding here are our youth would you all recommend that we include both 213 and 214 in our notwithstanding provision in order to uh enlarge the scope of application I certainly from my perspective don't see there being an issue adding 214 into the notwithstanding clause okay uh mr poble on behalf of the okay sorry about that uh yeah I know I would agree with Matt on this issue all right so it sounds like not just not a problem to add it but it sounds like we need to add it it's my conclusion based on what I'm hearing this morning just 214 the reference to add 23 that we would need to include both that's not what mr chappan said he agreed no no to be to be clear senator I just I would include both 213 and 14 thank you um okay and for the non-lawyers on the committee so uh is are there any uh for the case of liberty hill is that the one that would be flagged as a suit pending is that what the status of challenging uh the jo constitutes and a legal a suit pending yes yes it is and then on 214 so we're talking about in essence the apply maybe elsewhere but the case I'll just use it as an example maybe not the only one but in the case of kingdom trails where there's there is no we're not at a there is no suit pending there is no formal jo and there's no appeal because there is no jo so this is a more general process and we're saying it's it's also applicable there because we're talking about a proceeding so I guess and again I apologize because I'm probably going to be a little lawyerly in this is that really what we're talking about is is the concept that senator but many of you know from from your administrative proceedings before elcar is the concept of vested rights and I've seen uh judicial tribunals refer to both 213 and section 214 is the basis for what where they make a determination of when someone's rights best in a a regulatory regime and so by notwithstanding both of them I think you have clarified that issue okay and then there's sort of a flip side of this can anybody who uses the provisions that we're creating for the next 18 months declared that during that 18 month period whatever they did they now have a vested right because they were quote-unquote allowed to do that in the 18 month window are we creating so I guess if so going back to the underlying exemption itself you know I read the exemption as being a a two-part analysis it requires the trail to be enrolled in the Vermont trail system and then also it needs to be in existence prior to 2020 so I guess my response would be the quote-unquote things they did um I think that it doesn't authorize the construction or expansion of new trails pursuant to this but it leaves things that are in current in existence alone okay so Matt are we what I guess I'm trying to understand what what deal are we cutting here exactly what exactly are we doing that that's it just you know it's one of those things that smells like a deal I wonder if it's a deal I don't know maybe it's Warren because I know he's been talking uh with Senator Rogers and Senator Kitchell about this maybe he can fill us in a little bit sure I'm happy to deal or what are we doing I don't know that it's I don't know that it's a deal implies there's a bargain or a trade for something I'm looking at this trail section by you know by itself the the whole section here of your amendment that deals with trails and we were trying to make sure that we were addressing the situation the pending situations as well as the as the future situation that if there's if there's a mountain bike trail network that's part of the VTS down in Bennington County that somebody else doesn't somebody can't come in during this period of time and say you know what do you guys need an act 250 permit I hope you don't you're gonna have to go hire an attorney you're gonna have to spend time we we wanted to put uh uh we wanted to put a lid on that so that all these groups could finish working on the rest of uh of creating this alternative program that's that's that's what we're trying to do here so the reason I reached out to Senator Rogers is I heard his uh sorry go ahead I'm sorry oh no so what I said was I'm sorry you go please you know you first okay okay I'll fall let's go I reached out to Senator Rogers yesterday because of the comment he made during caulk is saying that you that your committee had not dealt with this and I disagreed with him and tried to explain to him and that's when this light came to issue I had a further conversation with Mr Chapman who said I don't think we've quite nailed what we think we were trying to do so that's that was that conversation I had with uh uh with him you know sent him a note later saying we do we are going to try and to make a further clarification and I shared the same thing with uh uh with Senator Kitchell and Senator Benning because obviously they have an interest because of the geographic location of those of those trail networks so is there and yeah so is there are there other trails that could be benefiting from this all the other trails that are part of the Vermont trail system that was sort of my example of if uh you know somebody somebody picks any other trail network that's part of the Vermont trail system uh during this period of time there's some stability that they do not need to go and get an act 250 permit nor can somebody somebody can request a jurisdictional opinion uh but the we're basically saying this is what the answer is there is no jurisdiction during this period of time so we're not preventing somebody from making asking the question we're basically saying this is what the this is what the answer is so it it benefits all of the trails the trail networks that are part of the Vermont trail system currently as of July 1 2020 and you're right your definition of a deal is a good one if the others were supporting the entire bill yes then indeed there would be some kind of deal happening so I I take your definition uh as uh as indeed accurate thank you I'm just trying to I'm trying to no pun intended deal with this part of the bill thank you oh we should not be using pathway to something stay away from those trail analogies I'm going to ask my eighth grade question um my neighbor told me that there's a trail seems to be operating on the far reaches of my property and if I go up this tomorrow morning early and find out that there's a trail there um do I have to get that registered before the first of July or can I since it since I have determined that there is one there can I register it after the first of July with the trail system uh I think for this for this before first of all I would ask you or is that trail a legal trail and is it part of the Vermont trail system before July you know by July 1st and I don't know I don't know if it is I don't know what the may I legally uh may I legally register it well it's more than a registration years there's actually an application process commissioner Snyder explained it uh on an earlier hearing that there's a there's actually a formal application process to become part of the Vermont trail system that's not that that can take a while it involves a recommendation from the Vermont trails and greenways council it requires a demonstration of a number of things by that entity that they've got their permits that they have built the system according to their best management practices there's enough that they have the resources to maintain the trail system and so forth so uh were you were you a kind that that someone as wise and thoughtful as myself um would be unable to meet all those criteria by the 1st of July in spite of my great talent um I would never doubt I would never put anything uh I would never answer that question definitively but I think it would be a uh a high uh a high hurdle to to do that quickly even for senator mcdonnell I know he has got hate at kind of other things so I know he has competing interests for his time notwithstanding that the witnesses uh um diplomacy I will take that as I could I would fail thank you so I'm conscious of uh we're going to lose senator mcdonnell sorry senator thank no thank you for the question we need to know what's going to happen or not happen as best we can we're going to but we're going to lose senator campion in eight minutes and so I want to loop back to our council because we need clear instructions for how we're going to resolve this and what a modification to our own amendment we're going to bring um do you have sample language uh mr kowski that includes both the 213 and 214 language that was a genuine question I don't really know okay yes uh it's on your website um under my name it would be draft 9.1 of your amendment okay so to this uh consortium here uh are any further comments on whether we uh this addresses all the all the contingencies that we wanted to address seems like we're there now okay mr chair so now the question is um if you're going to do second reading today would you do second reading um inform the the senators that um that that there's a further um another belt or suspender coming on the issue um that will be offered before third reading or do you want to would you want to go with our legislative councils um what has been crafted and um and run the risk someone would uh punch a hole in it um on the floor today well so we're not going to offer um the pro tem had suggested in order to have people have ample time to read our somewhat complicated amendment that we won't take it up till tomorrow before third reading okay so we do happily we don't have that time crunch but I think I'm I don't oppose adding this further complication complicated amendment not to be taken up until Friday okay so uh so you're staying on as a proposer of the amendment senator campion yes indeed okay senator gray yes so there's us three now I need to re-establish that all the other proposers of the amendment still wish to be on the amendment as amended yeah might even now get senator benning maybe this is an important provision let's see if we can get those on whose not on whose instead we work but uh we're working on everyone's behalf but there's some people who are feeling closer to the heat than others with that then um so if miss chicowski if you would draft a clean version of the amendment without the highlighting thank you for bringing it highlighted uh then we'll have a clean version to circulate and I'll submit it to the senate secretary for tomorrow's calendar great so anything more on the 213 214 thank you I'm you know we have three notwithstandings in this bill so that's the most outstanding bill I've worked on so far in terms of notwithstanding um okay so that completes our our work for this oh I think there was one other um I'm having a moment not remembering was there some other issue a member of the committee wanted to bring up before we broke for today um trying to think if some something was there's a lot of moving parts these days okay just wanted to make sure while we were together mr. kowski are you yes please uh are you is this committee meeting tomorrow morning yes okay am I going to be before your committee tomorrow morning yes please thank you okay thank you I think there we it may only be briefly to just in case uh at this point I'd love to have sort of the safety valve of if the next 24 hours somebody's thinking turns up yet another thing for us to another wrinkle to iron out then it'd be great to have you ready to help us do the ironing out thank you um and as soon as I hear about any wrinkles I will of course get them off to you ASAP um commissioner snider you had you were thanks for joining us the question came up about sort of how quickly readily someone can become a member from our trail system uh yes thanks mr. chair um I uh I've been listening along and I heard Warren's response which was accurate uh it doesn't have to necessarily take weeks and months but there there are legitimate criteria that we require and it takes a little bit of back and forth to to get those so I think Warren answered it well uh there's the determination of you know who are you do you have the capacity is it according to hoyle with regard to environmental concerns and best practices uh commerce non-commercial we need to establish that and that it's open for the public so we we have a little checklist we like to get advice from the we we we seek the advice and counsel from the trails and greenways council that can take a little time I think best case it's a matter of a couple of days frankly you could do it but often it does take significantly longer just because of the the pieces in the back and forth okay and can you help us understand better the money piece of this you know um because it's my understanding that there are it it's pretty natural that people who use something might contribute to it's making it available to themselves and or others so can you say something about the how people who run such trails fund them are they allowed to sell a ticket or a subscription or do you become a member or before finding a file of the public you know free to public kind of thing right that's a that's a great question for that I think people we want to all be clear about because we make a point of this is open to the public and non-commercial yet many of these operations kingdom trails would be a great example where there's a there's a fee this is generally done vast for example same thing they're in the Vermont trail system but there's money involved it's through membership it's so you can't charge for like use of the trail but it's it's a charge to be a member and that goes to stewardship and care of the trail system itself so that's that's how it's kind of handled that way it's non-commercial but it doesn't mean it's free you know there's there are expenses and those are covered basically through membership in these trail organizations but money's not going to the owner of the land correct okay um and if I but they do have the right do they not if I show up at trail system why and there's it's supported by memberships can they say well you can't ride until unless you're a member um I don't think so unless in certain cases where there's other attendant law regulation related to registrations etc for say a snow machine or an atv right but otherwise no I mean there may be some additional things that relate that require you to have to be in a certain place but otherwise no it's the that's the public purpose of the trail system is that it does allow folks to to use it okay all right great thanks for helping us continue to appeal the layers of the onion back here now I hope we're done peeling for today I think we're there all right great so thank you everyone for the extra innings and we'll we'll convene with miss chikowsky first if you would be we could schedule you for first thing tomorrow which would be 10 um that way if anything's come up we all know exactly when we'll address it if it turns out that nothing's come up then that part of the meeting will be very brief great so with the bottom of the 11th it'll be great yeah okay all right with that we have finished our business for the day and we are adjourned