 Good to see you. Good morning, everybody. Before we hear from the council, I'd just like to go around the room and see who's here and welcome everybody. There's some new faces. Linda Grevelle, Democratic Chair for Watkinson County. Kale Romanoch, Mott Bachelor of Resources Council and Vermont Conservation Goeters. Jen Duggan, Conservation Health Foundation. Wayne Fisher, Oracle Media. Katherine Oaks from an Illinois student at Vermont Law School and an intern at the Attorney General's Office. Great. Are you getting your environmental degree, the joint degree, or? It's an Illinois Department of Energy and Environmental Law. Great. I'm Laura Murphy from the Vermont Attorney General's Office. I'm a financial from the Agency of National Resources. I'm Robbie Gubel from the Attorney General's Office. Pete Bershwell from Vermont Goeters. I was in Crowley with the alumni from Crowley. Hello. What's your name? Kelly McCracken. I'm a popular citizen. Great. Heather Scholle-Leisling, William Scholle-Leisling Assistant. Luke Marland, Ledge Council. Mike Daley, our assistant and client. Gwen Zacher from Mott Lego City and the House. Great. OK, welcome. Welcome, everybody. OK, so we are starting with addressing climate change. 688. Hopefully everybody has either hard copy or access to it. This is a little different from what we've been doing, but that's the great thing about the judiciary committee. So Luke, welcome. Thank you. Thank you. Good morning, everyone. Luke Marland, the Director of Legislative Council at Chief Counsel General Assembly. It's good to see you. Here today to do a walkthrough of H688 as the chair indicated. And in particular, focus on a section that establishes a cause of action. And what I've done is prepare a PowerPoint. It might be the easiest for you if you simply look at the PowerPoint on the screen. It's meant to give a structure to the presentation and highlight some key points. I don't think you need to follow it on your laptop or iPad. And instead, I would suggest you just listen along. Please always ask questions. But when I get to specific text of the bill, maybe you have that on your iPad. I can tell you what page to look at. And you can read along with me. So I'd like to begin by giving a very quick overview of how the law works. And this is high level. It's now referring to the text of the bill. If you want more detail, if there's any questions, please interrupt me. So this bill would, first of all, establish mandatory greenhouse gas reduction requirements. In Vermont law currently in 10 GSA 578, there's goals. And this converts them to mandatory reductions that must be achieved by the state. And they're paid to three different years. For example, in 2025, the state must reduce greenhouse gases 26% or more compared to 2005 levels. By 2030, the state must reduce greenhouse gases 40% or greater compared to 1990 levels of 1990 benchmark. And by 2050, reduce by 80% compared to 1990 benchmarks. So there's three benchmarks or stages of reduction that are now mandatory under this bill. Secondly, the law establishes a Vermont Climate Council that will have 21 members. Some are from the executive branch. Some are experts in different areas. Some represent different constituencies or points of view. And this Climate Council has different duties. But the most important one is to prepare the Vermont Climate Action Plan. And the idea is that the Climate Council will meet and look at science and data and discuss. And there might be subcommittees for prepare an action plan. The action plan gives the overview or the overarching plan for how the state will accomplish these mandatory greenhouse gas reductions. So this is a plan for the state to achieve those required reductions. That is, according to the bill, supposed to be developed by July 1 of 2021. And the next stage is rulemaking authority that is currently vested in A&R to promulgate rules to achieve the plan, to carry out these specific strategies and objectives of the plan, but also to achieve those mandatory greenhouse gas reductions that now will be in Title 10. So you have Council prepare a plan. Once a plan is prepared, A&R engages in the rulemaking process to give life to that plan and to achieve those mandatory greenhouse gas reductions. I'm sorry. This is the tie in the legislature at this point. And then after that, the authority goes to the climate council and A&R. Sort of. So really what you're doing is you're setting the structure, as it's shown on the screen. And then you're, in essence, delegating authority to A&R to promulgate rules to achieve the goals of the plan and to achieve those reduction requirements. So we could technically override them, but at this point, we're setting something in motion and if we left it undisturbed, would go through without another legislative. That is accurate. It doesn't preclude you from taking action. And there are certain things that you must do and only you can do. That doesn't change. It's a rulemaking authority similar to what you've conferred to other agencies and departments many, many times. So you are correct. And I'll talk about that a little bit when I review the rulemaking process and the role of Elkar, which often comes up as a question. And Elkar is the legislative committee on administrative rules. Thank you. So A&R promulgates rules. And then finally, and this is what I'll focus on today, is there is a section that gives a cause of action in case that rulemaking process breaks down. Either rules aren't promulgated or rules are promulgated, but they're not achieving the mandatory greenhouse gas reduction goals. And so what we'll talk about today, what we'll focus on is those last two green boxes, the rulemaking process, and then the cause of action that's set forth in the bill. Before I go on to begin to go into the more detail on some of these issues, are there any questions so far? So what I want to focus on today is two sections of the bill. First is the new 10VSA593 that gives some detail about A&R's rulemaking obligations. I don't plan to read this section of the bill, but just give an overview of it, and then to talk about the cause of action which we will in a few moments read and discuss in detail. So pursuant to 593, A&R is obligated to develop, to promulgate rules that are consistent with the specific initiatives, programs, and strategies set forth in the action plan. And if you remember the council develops the action plan. To also achieve the mandatory greenhouse gas reductions. And in doing so, A&R is required to develop and file, and we'll talk about the process in a moment, file a detailed record of its process and its decisions. And this record goes beyond what is already required for most rulemaking. A&R is also required to conduct public hearings as it develops its proposed rules. And we'll talk about the stages in that in a moment. The timelines is that it's rules to achieve the 2025 reductions that I just mentioned have to be promulgated by 2022, to achieve the 2030 reductions by 2026, and to achieve the 2050 reductions by 2040. And there's also a required mechanism when A&R comes out with its rules to implement the plan to achieve those benchmark reductions. And then every couple of years it goes back and reassesses its rules and it can modify them or change them if necessary, if the rules that have promulgated are not achieving the required reductions. So for example, you'll see that 2040 develops the rules to achieve the 2050 reductions. There's language that every couple of years it goes back and reassesses whether those rules are on track and can update or modify them as appropriate. 594 is the section to bill. That is the cause of action. That's what we'll focus on today. It is written under two different scenarios. And I'll be the first to admit that those scenarios are a little, there's probably some gray area in them, but as I introduce it to you, I'll talk in terms of two different scenarios just to make it a little easier, but in reality there might be some overlap. The first scenario is that A&R fails to engage in rulemaking. So if the bill becomes law, A&R is required to engage in rulemaking, it just, it doesn't do it. Or what it does is so obviously deficient that it's not carrying out the plan for achieving the greenhouse gas reduction. That's what I call scenario A and that is set forth in subsection A of this part of the bill. The other scenario is that A&R does engage in rulemaking, good faith, but those rules for whatever reason aren't achieving and requiring greenhouse gas reductions. And we'll talk about that in some time. Now, what I'd like to do today before we get into the specifics of these sections is to provide you some background on the standard rulemaking process in current law, the role of L car, and then also talk about remedies under current law. In other words, if there's no cause of action language in this bill, what remedies, if any, would still exist and then drill down on what's in the bill and how it's different in current law. So let's begin before I jump into the rulemaking process. Any questions on what I covered so far? Is it all relatively clear? I know it's a lot. I know I'm talking fast, so please interrupt if anything's left. Thank you. So let's talk, I'll give some background on the rulemaking process. Vermont's rulemaking process is set forth in Vermont's Administrative Procedures Act, which is in Title III, Chapter 25. Remember that this bill is exclusively a Vermont law. There's no Federal Climate Change Solutions Act. In a lot of areas, there's a state law and a somewhat similar federal law or there's a federal program that the state is implementing. So there's some crossover with federal Administrative Procedure Law and state Administrative Procedure Law. In this context, we're talking about a state law that is no federal direct counterpart. So we're talking about Vermont's Administrative Procedure Act. As a background, in Vermont's law, rules have the same force of a statute that you pass. So it's the same force of law. There is no implicit rulemaking authority vested with an agency or department. You have to confer that authority and in this bill that authority is conferred on A&R. And rules cannot provide for penalties, fines, or for that matter, fees that are not authorized in statute. Or for that matter, taxes that are not authorized in statute. In addition, a rule cannot enlarge or expand the authority of an agency or allow an agency to issue permits or licenses unless that is also authorized as well. So those are some of the big picture guardrails as to what a rule cannot do. So for the rulemaking process, there's numerous stages set forth in Title III. First, the agency pre-files a rule with the Inter-Avenue Committee on Administrative Rules, ICAR, as it's often called. That is an executive branch committee where the members are appointed by the governor. And the purpose of ICAR is to review rules for consistency with the governor's policy and objectives and law. So really, ICAR is an executive branch committee that looks at rules before they go to the next step. It's not legislative, it's executive branch. Next step is the rule be filed with the secretary's state and the filing has to include various information, including analysis of potential economic and environmental impact, the text of the proposed rule, any scientific information that underlies that rule, statutory authority for the rule and explanation of why the rule is necessary. And if you have dealt with ICAR, you usually get a very big stack of documents. That's what's required under this file. In addition, remember, under this bill, A&R is also required to go further and develop a detailed record of the basis of its rules and file that with the secretary's state. So under the bill, A&R is required to file even more than is normally required. Did you have a question, Madam Chair? Oh. The secretary's state publishes notice of the proposed rule on its website and in print. And then the agency begins to hold public hearings and is required to provide a reasonable opportunity for parties and stakeholders and members of the public to submit comments and data. How many public hearings are held sometimes depends on the complexity of the interest in the rule. So there's a requirement to hold some public hearings. There's usually a plan to maximize public input. Give it a complex, controversial rule. There might be more public hearings or more public input. Next, the agency will file the, I'm sorry, after holding the public hearings, the agency will file the proposed rule with the secretary's state and with LCAR, with the Legislative Committee on Administrative Rules. So at this stage, they've had the public hearings, they've gotten the public input, they may have incorporated some of that or changed that. They're now filing the proposed rule with the secretary's state and with the legislature. The legislature reviews the rule and we'll talk about that in a moment. And then after that process is finished, the final rule is adopted by the agency and it eventually will become effective. So that only happens after the LCAR process and we'll talk about the stages of the LCAR process in a moment. There's also a ability under Vermont law to do emergency rules. Usually they're only appropriate if there's an imminent threat to health or safety or some other emergency situation. I don't think that applies in this case. So we talked about the general way in which rules are suggested and then the public hearing and then finally adopted. Now let's talk about the process for the Legislative Committee on Administrative Rules. So LCAR can approve a rule, it can approve a rule with modifications that it's agreed upon in a back and forth process with the agency or department. It can also take no action on a rule and it can object to a rule. But the basis for objection is limited and in other words, LCAR cannot object just because it thinks the rule is bad policy. There's only seven grounds upon which LCAR can object and they include things such as the rule goes beyond the authority of the agency, maybe contrary to the legislative intent. It's arbitrary, which we'll talk about later, which is a defined term. The agency failed to maximize public input, the rule wasn't written in the correct style or the economic and environmental impact statements were not sufficient and not carried out in an appropriate manner. Those are the only grounds upon which LCAR can object to a rule. So once again, it can't object to a rule just because it disagrees with the policy set forth in the rule or the decisions made by the agency or department. Now in actuality, there's often a back and forth in which the people on LCAR may express their opinion, the agency may modify the rule accordingly. So often there's a back and forth in modifications to the rule. If LCAR does object on one of those seven grounds, it can recommend that the agency amend or withdraw the rule and then the agency can, I'm sorry, is required to respond to that objection and the agency may revise the rule. It does not have to. The agency may revise the rule or it could withdraw the rule. But once again, it does not have to. And if the LCAR objection is not withdrawn, LCAR can certify that objection. But the rule can still be adopted and this is important. So the agency can proceed with this rule as written. LCAR could decide to certify its objection. All that does is switch the burden of proof in a subsequent court case. So LCAR can prevent the agency from propagating the rule. I'm sorry, it's objection only switches the burden of proof at a subsequent case. And we'll talk about grounds upon which a rule can be challenged in court in a few moments. But for example, if there's a case that alleges or contends that the rule is contrary to legislative intent, normally there'll be presumption that it is indeed in accord with legislative intent. If LCAR had certified its objection on that basis, that presumption is switched. So the burden of proof is switched. But that's the impact of an objection, nothing more. Is that clear to everybody? I wanted to now give an overview of some of the remedies that are available under current law. In other words, if this bill proceeds, but the cause of action language is taken out. So there's nothing new or different in the bill. What if any remedies currently exist for someone to challenge a rule that's propagated by ANR? There's five current remedies under current law. One, you participate in the rulemaking process. And remember that I mentioned that not only are there required stages for the rulemaking process to meet those benchmarks of mandatory greenhouse gas reductions, but there's also every few years that ANR is supposed to go back and assess if the rules are in target, and then you can look at the rules again. So parties, people, interest groups could participate in the rulemaking process if they think the current rules are not adequate. Under three VSAs, ADOS, all time. And what's the timeline by which ANR could be required to revisit those rules? So there's that public process. There's the benchmarks I mentioned earlier that, let me just go back. So those are the reduction years, 2025, 2030, 2050. And here you'll see that by 2022 it's supposed to have the rules to meet the 2025 reductions, 2026 to meet 2030, and 2040 to meet 2050. But under the statute every few years, I think it's every two years, it's supposed to go back and reassess. So there'd be an opportunity to participate on those benchmark years, but also when they go back and reassess to give them money. So that's what would happen if somebody couldn't meet the requirements, it would go back there. They'd reassess to see if it's realistic to meet the goals. So ANR promulgates its rules. If they promulgate the rules, and for some reason two years later they look and the rules aren't having a sufficient impact, they're not achieving those mandatory greenhouse gas emissions reductions. They should reassess and modify those rules to get back on track to achieve those reductions. Because a lot of this stuff will fall on municipalities to go and follow this, so correct? I don't know what the rules will contain. The rules, I don't know what the rules will contain. So the rules might impact me, it's kind of the career reasons. They could impact different sectors. I can't give you more specifics at this point. If it's possible, there might be an obligation for municipalities to do something. Okay, thank you. Sure. So there's participation in the rulemaking process. Secondly, under 3VSA 806, a person can try to start a rulemaking process. A person can submit a written request that an agency adopt a new rule, amend a current rule, or repeal an existing rule. This is in current law. So this is a mechanism for people to have input that they do not like the rules that A&R has promulgated. Third, under 3VSA 846, the person can bring in action based on a procedural failure in the rulemaking process. For example, a failure to file with the Secretary of State as I covered earlier. A failure to file a rule with LCR. I can't believe that would happen, but if they fail to do those procedural steps, you can bring in case. These first three options I'm not gonna focus on, just giving them to you as a background. The next two options are the ones I wanna discuss and give you more detail concerning. The next option is to file an action pursuant to rule 75. This is, I'll call it an action under mandamus, and I'll explain that in a moment. That's an action to compel A&R, in this case, or any governmental, official, or entity to carry out a duty that they're obligated to do under law. And then last, and I think most important, is a declaratory judgment action under 3VSA 807. So these last two options are the ones I wanna focus on. Just very briefly, as to the other prior options that I don't think are as important, I just wanted to point out that I mentioned under 3VSA 806, a person can submit a request to develop a rule, or amend a rule, or repeal a rule. The agency must respond within 30 days. If it doesn't do so, it must respond within 30 days. Now let's talk about the rule 75 action under writ of mandamus. I just explained the writ of mandamus. It's a judicial action to compel a state official or entity to carry out a duty that's obligated to carry out under law. So this is a scenario where A&R under this bill is required to develop rules, to promulgate rules, and they just don't do it. They're just not carrying out their job. You could proceed under rule 75. This, I know it's a little small, a little dense. I tried to highlight the most important parts about it. This is under current law. So under current law, this is a cut and paste of rule 75. It replaces the so-called common law writ of mandamus, but it does the same thing. So if you notice, this provides the opportunity to take action for a failure or refusal to act by any agency in the state. That's the bull text under A. The mode of review. The complaint and summons will be served upon the agency and parties in accordance with another rule of civil procedure. It includes a statement of the grounds upon which the action is being brought and shall demand relief that the plaintiff is seeking. Under time limits, the time in which review may be sought shall be provided by statute, except that if there's no time limit specified in statute, the complaint shall be filed within 30 days after notice of any action or refusal to act upon which review is sought. Within six months after expiration of the time in which action should reasonably have occurred. I'm emphasizing this because we'll talk about the time limits under the bill in a moment. And they're different. This is under rule 75. Then there's language about trial or hearing. I think in almost all these actions and you certainly should hear from the attorney general's office, this would be a judicial, the judge will make the decision. I don't think it would be a jury trial. But under certain circumstances, that might be an option. And then review by the Supreme Court that appeal is to the Supreme Court of Vermont. So it be filed in Washington County, appeal to the Supreme Court of Vermont. Once again, this is rule 75, existing rules, civil procedure in Vermont law. Are there any questions about that? The other potential remedy that I wanted to mention is as I said, the declaratory judgment action. So this is under 3VSA 807 and it entitles an individual to bring an action as to the validity or applicability of a rule. The action for declaratory judgment will be brought to Washington Superior Court. If it's alleged that the rule or its application interferes with or impairs or threatens, et cetera, the legal rights or privileges of the plaintiff, that's somewhat broad planers. This is the vehicle pursuant to which a rule can be challenged and pursuant to which these rules developed by NR would be challenged if the language concerning the cause of action was taken out of the bill. I wanna talk about the standard review that would be imposed under this statute. Did you have a question? I mean, it seems inevitable that certain rules are going to interfere with what people are doing because that's the point of the rule sometimes is to stop behavior that shouldn't be happening or encourage another behavior that needs to happen. So. I think you're right. So as I said, it's sort of broad language. I think certainly if this bill goes forward and the cause of action is taken out, I think you probably could proceed under this existing law. Yes. So not to get into the language that maybe you'll comment on it later, but there seems to be a savings clause. I don't know if I, I guess. You are correct. I want to mention that later. Okay. So you are absolutely correct. That's important. So this can come back. It absolutely can. Okay. And if I guess, I'll get that a few moments and I'll tell you please raise it if that isn't important for you. So these are the remedies under existing law. Are there any questions about anything on current so far? So under existing law, what are the grounds under this section 807 existing law? What are the grounds for the courts and validator rule? It could be that it exceeds legislative authority. It could be contrary legislative intent. I think the most relevant would be this standard that the rules arbitrary, unreasonable or contrary to law. Now, arbitrary is a defined term. It's defined in a separate statute. And I want to read you or summarize for you that definition and talk to you briefly about some relevant case law. So arbitrary is defined as meaning there's no factual basis for the decision made by the agency. The decision made by the agency is not rationally connected to the factual base asserted for the decision. Or the decision made by the agency would not make sense to a reasonable person. This is the definition of arbitrary in 3VSA 801 sub 13. This definition also refers to two Vermont Supreme Court cases. One is called Byers and one is called in RV town of Sherbourne. And these cases are important. I want to read you some language from that. In the Sherbourne case, it states that the court needs to determine whether the board acted arbitrarily in doing so the court must decide whether the decision makes sense to a reasonable person. So same language I just read to you. And even if the reviewing court might have weighed the factors differently, that does not mean it's arbitrary. Because the court recognized that the entity making the rule has wide discretion over what way to give to individual criteria and what conclusions to draw from them. And so long as the decision of the entity making the rules are consistent with legislative and prior agency policy, that rule's probably valid. So even if the record of the board's proceeding contains conflicting evidence, the board's findings will normally be of help. In the Byers Court, the Vermont case, excuse me, the Byers case of Vermont Supreme Court noted that the court will not and should not substitute its judgment for that of the rulemaking body. So I summarize some of that language from the cases because as you can tell, it's a fairly high standard. There's deference given to the rulemaking body. So even if the court disagrees with how certain factors should be weighted or considered, if the ultimate decision of the ultimate rules of the rulemaking body seems to be consistent with law and is reasonable, that rule will probably be of help. What this means as far as proceeding under section 807 is if there's a claim that A&R's rules are somehow unreasonable or not, or are arbitrary or not rationally connected to the objectives A&R is trying to achieve, that it probably will be a case that requires detailed ethics. And in other words, it's a differential standard review so the court may have to really drill down as to the basis for A&R's decision and may require expert testimony. It may require quite a detailed record as to the basis for A&R's decision. So not only is it differential standard review, but if a case is actually brought, it might be a complex case to adjudicate, to litigate. Can such a review be limited to the record? How does Vermont State Courts handle that? Because I'm not certain about that. So I don't want to try to answer because I'm not sure I think maybe that'd be a better question for the jury chosen. Okay. And presumably, if we wanted it to be based on the record, that could be done out of it. If that is different or necessary, you can always add language to that effect. Any questions about what I've covered so far? Because I'm about to jump to the actual bill and the language and the bill and the point on how it's different than existing law and existing principles. Any questions so far? So let's look at the actual language of the bill and I want to actually read you some of the text from the bill. I don't know if you have the proposed bill up on your iPads or copies. If you do, we are jumping to page 20 of the as introduced version. It is section four, I'm sorry, 594, cause of action is the line three. Is everyone with me? Great. I want to read you the beginning subsection A and then pause and then we'll do subsection B. Once again, it's divided under A and B and there's slightly different scenarios but as I indicated earlier, there might be some crossover between them or some gray area between them. So A, on line four. Any person, a person is defined very broadly, it could be a natural born person, you or I, it could be a legal entity, it could be an organization. May commence an action based upon the failure of the secretary of natural resources, in other words, A and R, to adopt or update rules pursuant to the deadlines in section 593 of this chapter. So that is a scenario where A and R has not promulgated rules or they have promulgated rules and they failed to update them as required by the law. One, the action shall be brought pursuant to rule 75 of the rules of civil procedure in the civil division of the Superior Court of Washington County. So it's pulling in rule 75 explicitly. Two, the complaint shall be filed within one year after expiration of the time in which A and R was required to adopt or update rules. However, a person shall not commence an action under this subsection until at least 60 days after providing notice of the alleged violation to the secretary, in other words, A and R. Three, if the court finds that the secretary, in other words, A and R, has failed to adopt or update rules pursuant to the deadlines, the court shall enter an order directing the secretary to adopt or update rules. If the court finds that the secretary is taking prompt and effective action to update or adopt the rules, the court may grant the secretary a reasonable period of time to do so. Couple things point out about this language. It pulls in rule 75, but the time periods are different and under two, a person cannot commence an action unless they give notice to A and R. The remedy if the court finds that A and R has failed to carry out its duties pursuant to law. The remedy is that the court enters an order directing the secretary to do so. However, if the court finds that the secretary is taking prompt and effective action to try to meet the deadlines, it may grant the secretary a reasonable time to do so. What would be a reason that A and R had not met the deadlines set forth in the bill? Maybe the public engagement process takes much longer. Maybe there's many more comments. Maybe they've gone to Elkar and there's a back and forth. Maybe it's tough to achieve all those stages I went through earlier quickly and the process slows down and they weren't able to promulgate the rules on time but they're really trying hard to meet the time period. The court could look at that and perhaps give them an extension of time to do so. You'll notice there's no mention of damages in this text. So the remedy is the court ordering A and R to carry out, to promulgate the rules, there's no mention of damages. So it says the court shall enter an order directing the secretary to adopt or update rules. But then if the court finds the secretary is taking prompt and effective action to adopt or update rules, the court may grant the secretary a reasonable period of time to do so. So it's not required. That would be to some degree at the discretion of the court. The extension is discretionary. You're absolutely correct. Thank you. The court would have to weigh whether the NR is really taking prompt and effective action to meet those deadlines that was trying harder. Any other questions? I guess I'll just, for the sake of it, what would be considered a reasonable period of time? That's not defined in this bill. And that's something that's therefore left up to courts to figure out. I think courts often play with those concepts. What's reasonable, what's prompt, what's effective. I think courts often play with those concepts from what you're doing. But it's not defined. There's no rigid time period for example. And I mean, might that be because, so that then there's the option for this to be case sensitive for judicial discretion. Absolutely. So if there's like a meaningful impediment to having adopted the rules that would provide a different window than if it was clearly just like. I didn't think that's a valid point. Intentiveness, yeah. It's always case and fact sensitive or specific. Also this committee is very familiar with the role of judiciary and that they play with concepts like what's reasonable or burdens of proof. So I think you're familiar with that in many steps. And that's what courts often do in various cases. So as to the language I just read, which is under subsection A, how is it the same as or different from rule 75? In other words, existing law. So as I mentioned earlier, this part of the bill refers and pulls in rule 75. The time to bring the action is a little different. Under rule 75, it's 30 days after notice for her failure to act six months. Under the bill, it's one year. So it gives a longer period of time than under rule 75. There's a notice provision I just mentioned to you that the plaintiff has to give notice to A&R before they commence their action. So question might be asked, well, it's not substantially different. The rule 75 doesn't change anything beyond the timelines. And I think that's a judgment call for you and the other committees that may take up this bill. There is an argument that including this language in the bill gives certainty that you could proceed to bring a cause of action. It doesn't leave any ambiguity by putting the bill makes it clear that you could proceed on this basis. There may be an argument, I'm not sure about it, as to standing in necessity of showing particularized harm. That would have to be shown in any cause of action, but including the language in the bill may make it clear that this is, that you can proceed on these actions it may infer standing. So the language about the prompt and effective and reasonable period, that's not in rule 75 either, or is that just generally what a court would do for a challenge on a deadline type case? Good point. So that's not a rule 75 either, that's unique to this. That seems to be probably one of the more important components of this. That's a valid point. Could you say that again? Well, under rule 75, if somebody brings a case on a rule 75 because of a failure to meet a deadline, it's not clear to me whether the court can decide to extend that deadline. And we've been a rationale for doing that here. I think that's a pretty important difference as well. It certainly makes it explicit that the court could do something. Yeah, it makes it explicit. The court might do that anyway and it's equitable powers, but it makes it explicit. Any other questions or comments? So let's jump now, let's proceed to subsection B of the cause of action language to the bill. So I want to read to you subsection B. This is still on page 20 of the as introduced version. We're starting at line 20. B says, any person may commence an action alleging that the rules adopted, there's a cross reference to another section of the bill. Allowing 21s have failed to achieve the greenhouse gas emissions reductions required pursuant to, there's a cross reference. Under one, the action shall be brought in the Civil Division of Superior Court of Washington County. Two, the complaint shall be filed within one year after the Vermont greenhouse gas emission inventory is published. This is important, the greenhouse gas emissions inventory, you've all heard of it, it's an existing law that's published periodically, but it may not be published till two or three years after these benchmarks. It takes a time for an art process, the data to get the data to develop the report. So there's a lag, or there could be a lag between the year you're trying to reduce greenhouse gas emissions and when you actually know how much those emissions were actually reduced. For example, they came out with the latest version, I think it's referring to 2016 data. It's a couple of years delay. So, in this language, you're referring to when the inventory is published and it might be a couple of years after the year you're looking at it. Is that clear to everybody? All right. So that really narrows the window of being able to address it, given the delay in, not the delay, the length of the process to get them published. Well, it gives you more time to bring an action under this language. It gives you more time to do that. As far as knowing if you're meeting the benchmarks, yes, there would be a delay. And I don't know if A&R gets interim data that can point the way to how they're doing it. I don't know the answer to that. So under two, the complaints follow within one year of the inventory being issued and that inventory indicating that the rules adopted by the secretary have failed to achieve the greenhouse gas emissions reduction pursuant to, there's a cross-reference. I'm now on line nine. The language continues. However, a person shall not commence an action under this subsection until at least 60 days after providing notice of the alleged violation of A&R. So that's a notice provision similar to what we just covered under A&R. Three, now on line 12, if the court finds that the rules adopted by the secretary are a substantial cause of failure to achieve the emissions reductions preceding to line 15, the court shall enter an order directing the secretary to adopt or update rules that achieve the greenhouse gas emissions reductions requirements. If the court finds that the secretary is taking prompt and effective action to comply, the court may grant the secretary a reasonable period of time to do so. So a couple of things about this language. Number one, the court needs to find that the rules are a substantial cause of failure to achieve the mandatory greenhouse gas reductions. Two, just as we did under A, the court then shall enter an order directing the secretary to adopt or update rules to achieve those reductions. And third, similar to A also, if the court finds that the secretary is making prompt and effective efforts, they can grant an extension of time to do so. So some of the language is very similar to A, but the substantial cause of failure language is different. Substantial cause of failure is not a defined term in this bill, but once again, I think courts look at things like substantial and they weigh these factors and it would be, as someone pointed out, very fact-specific and case-specific. Each cause of action might be different. Any questions? Yeah? Can you just do a scenario just because I'm saying, because here's kind of what I'm wondering. What if, I'm not saying this would ever happen, but what if a secretary of this department or commissioner didn't do anything until the final step came out and was published. And of course they're gonna be behind because they didn't do anything. And then they go to court showing that they are doing something. So they sort of got an extension. Well, two answers to that. First is I think you always assume that agency departments will make a good faith that's charged and that's legitimate assumption. So you often give rulemaking authority to an agency department to carry out specifics of some objective and use-establishment statute and you assume that they'll do it in good faith and as quickly and as well as they possibly can. So that's always- The resources that they have. Well, resources is another issue, that's valid too. Secondly, well you're talking about a scenario, A, where they haven't done it. They're just sitting in their chairs and not even trying to promulgate the rules or the efforts they make are so de minimis it's no way they could get to those greenhouse gas reductions. That would be a cause of action under A and you don't need to wait as long. But assuming they did promulgate the rules but still didn't then, I mean, the deadline to promulgate is not much before that first benchmark that they have to meet. So it could be a teeny, tiny bit of time that they have and so they're gonna have to be like ready to go as soon as it's approved or finalized, right? I think there's validity to your point of view. There might be a narrow window, so that's accurate. And one, just to be clear, you might not know the impact. It's a little bit later. Emissions are really being reduced. But then somebody might get an extension. It's possible. Yeah. Any other questions or comments? I don't think you are planning on commenting on this. Just what is the scope of the relief that the court can order? Well, this is, it's a good question and this is under both A and B, the scope of relief is not awarding damages. It is, and we'll talk about attorney's fees and costs in a moment, but not damages. It is to enter an order directing A and R to carry out its duties, either to promulgate rules if they haven't done it or to promulgate new or improved rules if the rules they have promulgated aren't achieving the emissions reductions in taxes. That's the relief. But can the court tell A and R what those rules should be to help achieve the proposed taxes? So as it's currently written, good question. It is to tell A and R to, in essence, do its job or do its job better. But how specific that order could be is not addressed in the language of this bill. So if I didn't want the court to get into freely knowing how to deal with the emissions and such, is there a way to tighten this language a little bit, to make that a little clearer that really it's up to A and R to get the job done. And it's up to them as the experts to figure it out. You certainly can attempt to tighten this language and there very well might be a way to do so. I think what Representative Mulan is getting to is could the court order that A and R with great specificity adopt this rule, this rule, this rule. There's nothing in the language that precludes that. Whether that realistically would happen, I don't know. But you certainly could try to add language to prevent that. And let me leave it at that. Any suggestions on what that language would look like or should I ask the other witnesses or do you have any other ideas of how we might do that? I do. I think you should definitely ask the witnesses or litigate this area. They might have good ideas also. I mean if the court, the committee, wants to add language like that, I'm sure we could draft language that would achieve that goal. Yeah, from the other witnesses, I certainly like to hear the pluses and minuses of how far we let the court go in ordering remedy. I certainly want to hear from the servants. But if you want to try to narrow it, I'm sure we could get you there. So when you were discussing Rule 75, I don't remember you talking about attorneys' fees. I did not. You're correct. And I also have my head don't know if or how attorney fees would be imposed. I'll tell you about what's in this bill in a moment. So I can't answer that question. I'm sorry. Okay. I'm not answering that. Okay. I'm just not sure if this is different from at least currently. I'm sorry, I don't know. Show you. Move on then to, it's now C. I'm on page 21 of the, well I'm sorry. Let me just make sure that I cover all these. I think I did. So this is the differences from B that we just went through and current law that declared our judgment action. There's differences as to the time period to bring the action. The difference, as I indicated earlier, is based on the admissions inventory. So arguably, also as the second bullet point here, the language in the bill is perhaps more limited than under existing law under section 807 action because there's a requirement that the rules be a substantial cause of the failure to achieve those reductions. That's what the court has to find before it tells A&R to change its rules. And there's a prompt and effective, basically extension, language that's in the bill. Is everyone clear on those two points? So let's talk about attorney fees and let's talk about the catch-all, which was raised earlier, which is an important part of this bill. So under C, this now talking about attorney fees says, if an action brought, in an action brought pursuances section, a prevailing party or a substantially prevailing party, and I think you're familiar with this concept of substantially prevailing party, it could be multiple causes of action. You win some, you don't win others. You're still substantially prevailing. There may be a resolution that achieves your goals without going all the way to trial or a verdict. So substantially prevailing is a concept that's in a lot of, you know, other statutes. And I think you're familiar with that. Are there any questions about that? Okay, so a party that prevails or substantially prevailing, number one on top of page 22, the plaintiff who prevails or substantially prevails shall be awarded reasonable costs in attorney fees unless doing so would not serve the interests of justice. So a plaintiff who Susan and I will get costs in attorney's fees unless the court finds that this does not serve the interests of justice and this phrase not serve the interests of justice is something I think you also may be familiar with. It's been commonly used in this context of judiciary and it gives this question to the judge to decide if for some reason those fees should not be awarded. Under two, that the prevailing party or substantially prevailing party is a defendant. That's A&R. They may be awarded costs if the action was frivolous or lack a reasonable basis in law or fact. So if A&R wins and prevails or substantially prevails, they can be awarded costs, not fees, costs. But it's up to the court. It's not mandatory discretionary. If the action was frivolous or lack a reasonable basis in law or fact and that's based on top of rule 11 language which is both state and federal standard for frivolous action. So it's tracking concepts the court should be familiar with. So there's obviously a difference between what the defendant gets and what the plaintiff gets. And I'm just wondering if you can either give me an example of why a court might not award it because it isn't meeting the interest of justice and or why doesn't it say if the plaintiff has a frivolous or lack a reasonable, like why isn't it gruent? So defendant A&R may get costs if the plaintiff's action is frivolous. That's what two says. What would not serve the interest of justice I can't give you a specific example. That's discretionary to the court. It's similar to language in other contexts. Okay. Now I want to see to the catch-all and almost done. And catch-all is indeed was pointed out this is important. D states, I'm now in line, I'm sorry, line five or page 22, nothing in this section. So everything we've talked about cause of action, A and B, nothing in this section shall be construed to limit the rights, procedures and remedies available under any law, including the Vermont Administrative Procedures Act pursuant to, there's a cost reference. So this is the catch-all that this adds to but does not take away from and does not limit any existing right. Whether that's under rule 75 or there's actually another rule 74 but the 807 action. So it doesn't take away any. So going back to the example that you use in response to one of the, there was questions. If the, and I don't assume that this will happen but if they may not, or the rule making that comes out is pretty clear that it's no way gonna reach those goals. The rule says only we will ask everybody to turn their lights off at night or whatever. Again, A and R will do more than that. But I'm just saying if it's pretty clear that the rule making is not gonna be sufficient, there could still be the action under the, under the ATA, the Administrative Procedure Act that it was arbitraining the precious. Yes. Right, so. You're correct. But as far as that the, you haven't met that goal and that's kind of, that's the part that's really quite different. So you've done the rules but the rules aren't achieving the emissions reduction. Right, okay. And that wouldn't necessarily be a pretty, that wouldn't necessarily be a straightforward standard APA type case it seems. And that's, that's important. You would bring that action under 807, the existing. So I'm just saying to you, but under the current statute. Right, under the bill or the current statute? I'm sorry, under the bill. Yeah, that provision B, subsection B is really adding something different that is there's not necessarily a straight path under the Vermont APA in that scenario. I think there is a path. Right. Is it really called straight or not? I think it exists, it's there. But it also doesn't have the substantial language and it doesn't have the. No, actually by Trump. But this is different. You're right. B under the bill is different. And also, even if there's similarities having in the bill makes darn clear that you can proceed under that path and that path is available because of the things. It doesn't have. Thanks. That concludes my walkthrough. Oh, sorry. Is there any questions? If you were, if you were able to sort of sum up what this bill is hoping to accomplish, is it making the rules more specific? Is it loosening some up? Like what, what is the overall compared to other rules? Or I don't know, what's the overall attempt here? I think that people sponsored this bill decided to include this language. I mean, it's possible. I think I've highlighted for you differences from existing law. I've summarized for you what existing pathways there are. I've highlighted for you what's new different but it's a judgment call whether to include or not. And I'm trying to get the whole bill. Oh, okay. Because I guess I'm wondering how often given that I haven't had much to do with LRK. Is it unusual for things to be sort of tailored or are they usually more in line with very specific rulemaking processes like you went over? Because again, there are some variances and I don't know if that's to expedite meeting the outcomes or if it's to give defendants more. Like I guess I'm just trying to figure out. Well, there's no differences in the LRK process. Right. Except for that requirement. David detailed the record. The General Assembly grants rulemaking authority in lots of context to lots of agencies and departments. So that's not unusual in that regard. This is very broad rulemaking authority. That's a little different. Okay. It's really broad. That's great. Okay. Thank you. Do you know what the timeline is on the bill as far as next steps, which committees it's going to after it leaves us or anything? We don't really have, we don't have the session with the bill either. It's just applied by either bless what we see or give them recommendations. I'm not sure what the committees, do you know the committee's timeline upstairs as far as. Well, the question. I don't know when there's no appropriations though. So there's no, so it may not go to another committee? I don't know. It was just a question because if I wasn't sure if I should wait to amend the bill on the floor. Or. What do you think? It depends what, if it pertains to power jurisdiction then this is the place to have that discussion. Maybe it might. Is it related to section four, the cause of action? No. Then probably as you probably should talk to Tim. Okay. And I assume also this is going to go from gov ops or just a five through because there is a commission created. Yeah. Or council I guess it's called. Cool. Thank you. Look, what happens if the, in our adoption rules and the legislature fails to appropriate necessary funds for it. And so therefore even though A&R has fulfilled their part of the process, the funds, necessary funds weren't appropriate. Didn't they couldn't, you're talking about for A&R to engage in the rulemaking process or they adopt rules requiring that someone else to do something, there's not funds to do it. They adopt rules. There's the funds that we require, that appropriation would be required to do it. Funds aren't appropriated. What happens with the people being able to take action. So as I pointed out, there's no appropriation in this bill. So as far as A&R, A&R's rulemaking functions, I guess the assumption is they'll be able to do so with current resources. As to other resources that may be necessary to implement rules, I don't know what would happen if there's no appropriation to do so. I don't know. I guess is the ability still there for someone to bring a, or to make a complaint based on inaction if the inaction is a result of value to appropriate? I think there could be. I mean, there's that substantial cause language under B, so I don't know how the court would decide if that's legitimate reason or not. I don't know. I think you still got to bring the cause of action. I think, because I was going to ask something similar to what you were getting at. And I think from my reading of it in this, I don't know if this is how you would read it, Luke. But if, for example, the legislature didn't appropriate but the rules were in place, the substantial cause of failure would not have been that the rules were not in place. The substantial cause of failure was that there was no funding for it. I don't know if I can say that with certainty. I think it's fact specific, case specific. I think it might depend on a number of factors. You can make that argument, it might be legitimate argument, but I don't know how the court would go on. I can't predict that. Yeah, I was just going to comment. That was the intent for the substantial language. Not just that, but that was one of the scenarios that was thought of. Can you be more logistic when you think that's what was, the intent of having the substantial language, one of the scenarios that was considered as well. What if they require, or what if a fee is required, what if the tax is required, which is out of the jurisdiction of the A&R, it wouldn't be in rulemaking, or if the rulemaking required expenditures to be approved by the legislature, these are the kind of scenarios that at least were kicked around when I was talking about this bill with the other sponsors. Putting that substantial language in there is to try to catch that situation. But, you know, Luke is right, that's not entirely clear what's going on. Legitimate argument, whether it be a lean argument, how about the game against Greg? But if the remedy is specifically additional time, or it sounds like, it could be. I mean, it's, you're a legitimate, what you're saying, legit? It's a legitimate argument, whether it win or not, we can't say. But remember under the bill, regardless of A&R, regardless of resources, regardless of appropriations, under the modifications to the greenhouse gas reductions, making them mandatory as opposed to targets, the state is required to achieve those reductions one way or another. So there's the other countervailing argument. You're obligated by law to achieve those emissions reduction one way or another. Lack of resources may not be good enough. You can make different arguments. Hey, thank you so much. Thank you very much. Thanks, thank you. Thanks, thank you for having us. I'm Rob McDewan, the Chief of the Environmental Protection Division at the Attorney General's Office, and with me is Laura Murphy, one of our Assistant Attorneys General at the Attorney General's Office. The Attorney General wasn't able to make it today, he apologizes for not being able to be here. We also want to thank the committee and the others that have worked on this bill for their work on it. We believe it's a very important issue. The Attorney General is of the firm belief that the climate crisis is real, that this bill is a valuable tool to fight climate change. It makes goals of greenhouse gas reductions and the requirements. It's an opportunity for Vermont to lead. We've fallen behind our neighboring states in our greenhouse gas emission reductions, and this is a chance to get us back where we believe we should be. We also noted when we testified in the House Energy and Technology Committee last week that we can't count on the federal government anymore to do some of the climate change work that they have done in the past. So Vermont really has to take the opportunity to act on its own behalf. It's important in this rule to give the agency of natural resources the resources it needs to comply. It's a very robust rulemaking process, and it's important that the agency have the resources to make this bill work in practice. And then finally, and most importantly, probably for this committee, the Attorney General supports government accountability, and so the idea that there is causes of actions with attorneys fees attached to them is important instead to make sure that the state does its part. So that's something we can talk more about, but more of the firm belief that the attorneys fees kind of put some teeth into this bill to make sure that the state does the job that it's tasked to do under this bill. So with that kind of introduction, I'm happy to take questions. Laura and I both, we can address some of the questions that were asked as well. Laura kept a list, if you wanna go through that. That'd be great. Unless you have anything else that you wanted to... No, I can certainly start. We can start with some of the questions that came up earlier, but just as a starting place, and Luke talked about this, but I think in terms of conceptualizing the three causes of action, there's the existing one where you can challenge a rule after it's written. That's under the APA. You do that within a year, and so that's where the rule comes out, and we really don't think it's gonna work. We don't think it's in line with the statute, so someone might challenge it. The question came up whether that would be a record review case, and the answer is yes. Under 807 and rule 74, it's a record review case. It should be. And there's case law saying that these are record review cases. A plaintiff can't come in and put on all new evidence and say, A&R should have done this with the rule. It's gonna be based on the record that the agency developed when it was developing the rule. So what that means, of course, is that the agency needs to have the record. There needs to be a reasonable basis in that record for the rule that the agency made. So there is case law that these are record review cases. I suppose a court could try to go the other way and say, no, we're gonna have a trial, but I think that would be really unusual and really not in line with the existing law. So there's that APA challenge and then the first cause of action in this, yes. Yes, I have a follow-up question. And I want to get into these too much, but are there some exceptions to record review that are very limited, I understand, where a plaintiff can say, well, they didn't consider these five other factors which have been critical for this and here are documents or here's testimony, whatever, to show that this is something that should have been considered that was absent from the record. I think we'd expect that that would have been raised in the rulemaking process by the plaintiff that it would not be new evidence presented to the court on the rule challenge. So they'd be foreclosed from trying to bring that forward in the court case. So there are provisions for supplementing the record sometimes in rule challenges and there's specific criteria you have to meet. So normally, yes, ideally the relevant evidence would be before the agency during the rulemaking process. There are some exceptions for supplementing the record or in this case, or providing extra record evidence which I guess is what this would have to be. There's specific criteria you have to meet which I can't recall off the top of my head. But the other thing is if the agency failed to consider X, Y, Z, the court can also say because you failed to consider X, Y, Z and I don't have it before me, I'm gonna remand to the agency because as it currently exists, there's not a reasonable basis. Without X, Y, Z materials, there's no reasonable basis. So there's a few different ways the court can approach it. So could you explain just generally a record review case as far as how complicated or versus, how resource intensive, et cetera versus a case that can be brought with testimony to such a de novo review essentially. Just so people understand the realm of what we're providing here versus what people might imagine is a trial and such. No, yeah, as I said, the most recent one that we've dealt with in the environmental protection is some of the rulemaking that Anner did around the people aid contamination in Bennington. So St. Cobain and various points challenged that rulemaking and we were teaming up a rule challenge case that was actually dismissed as part of the settlement. And that would have been a fairly complex record because there was a lot of science involved when you're setting limits on levels of toxins and things like that. So you can speak more, but the rule, it can vary widely how complex a rulemaking process is based on what is being considered. And so that can lead to a very complex case potentially because the record could be so heavy with details. But you would have the record existing, right? So you wouldn't have to be putting evidence on in court and it would be looking at a potentially really lengthy complex record, hundreds of studies about, in our, you know, the PFOA example, PFOA, it's toxicity, documents from the agency, you know, setting the rule and things like that. But you're really just looking at, you know, at this record, are these peer reviewed studies, does this make sense? Did the agency consider these things as a reasonable versus? If you, which I think is the second cause of action in this bill, you would have a trial. Yes, and before you go, I'll just write about this. I just want, I understand the record review cases can be very complicated, but I'm just an example of PFOA. I look at the, another case that's going on right now, seeking medical monitoring, which is not a record review case. It's been going on for months, if not years already. And it's a different level of how much resource-intensive with discovery. I know the record review, but I could imagine a full trial on that issue that you're talking about, would be even uglier. I just think that tomorrow is kind of getting at this, the second cause of action, the second new cause of action in this one, the kind of the rules not working challenge. That case, or a case like you're describing with the medical monitoring, where you're having experts, depositions, a lot of discovery, things like that are absent from a rule challenge on the record. So I can't say that every rule case would be resolved by motion. It may be some working court, you know, in front of a judge on our feet. But it's certainly a lot different than a case that requires a lot of kind of pre-courtroom work in depositions, preparation, witnesses, experts, all the kind of things that might happen when you're bringing in new evidence to a judge that isn't part of the record that's before the judge. So it's not as the cost may be less on a rule challenge than you would have on a kind of open-ended litigation. Agreed. So that's the APA challenge that we currently have. Then when you get to the bill, there's the first cause of action, which I think of as a deadline suit. And Luke kind of talked about that in those terms as well. At the federal level, that's what they're typically called as deadline suits. And it's really did A&R issue the rules on this exact date. And if not, in the 60 days notice, one can bring a suit and it's pretty cut and dry. They met the deadline or they didn't. And the remedy, as Luke was saying, also cut and dry, please go issue the rules, or not please, but go issue the rules. And then the second cause of action under the bill, which is the third remedy that Luke talked about as we, sure, yeah. On that one, could you comment on how the language of the court finds that the secretary's taking proper and effective action to adopt or update the rules the court may grant the secretary reasonable time. That seems to add a little complication to the court, not just saying go back and do it. Or could you just comment on that? I think if, and we, you know, the attorney general's office, we don't write the rules, but we would defend the state in a lawsuit, right? So we're the ones that have to go to court on this working with our agency partners. I think if we were to go into court and say that the agency was 90% of the way there kind of thing, or 80% of the way there, and they're doing a good faith effort to meet these deadlines, you know, it would give the court the opportunity to recognize that good work and maybe give it a little more extension of time so that it's not a drop dead date in some ways. But I think that you can't just go in and say we haven't done anything yet and has to really be that we've been progressing, I think, to make that argument valid in front of the judge and the kind of good faith effort of the state to meet the deadlines. I don't think we read that to give the agency the ability to kind of take a pass and come to court and say, hey, we'll start working on it kind of thing. So I think we have something to add, but I think it's, you know, we have to kind of have made a good faith, reasonable effort to meet the deadlines in any instance for it to present a valid argument in front of the judge. So if that language wasn't here, would you still be in that situation to argue that to the judge and the security? Are you really getting something? Which I like that language, but I'm just... I think it does add something because I think that when it absent that, it can be really read as a line in the sand drop dead date that you either met it or you didn't. And I think that's gonna be the theme of that cause of action anyway. It's really black or white. We either met the deadline or we didn't. But if we're kind of meeting it or almost meeting it, we have a little more ability to argue that let us finish our job. And one thing the language might add is giving the court more comfort that it can, it can say yes, you failed to meet the deadline and A&R, you lose, we lose the lawsuit, but maybe getting the court more comfort in saying I know I can think about what the agency's doing and take that into account in establishing the timeline that I'm gonna make the agency meet. So I think as Luke said earlier, arguably the court could already do that, but I do think this is helpful in providing additional guidance. And then just on the third cause of action, we've already talked about it a little bit. It is different. It's really an after, like sort of think of it as after the fact rule challenge where you have a rule that's probably been out for several years because you have to wait for the inventory to come out. But then there's an opportunity for a person to say, wait, these really aren't working. We really need to go back and make sure we're gonna write better rules that will work. So that's sort of the vehicle for that. And I would agree with the testimony earlier about the substantial cause language and some of the questions around that. That is really helpful in ensuring that if this case is brought, it has to be shown that the rules themselves are really the problem, right? Not a failure of the rules to be followed or some other sort of failure, because otherwise it won't do any good to rewrite the rules. So those are the thoughts on that. And I ask to attorneys fees, you know, those. I'm sorry, 40. Some questions on, so I was asking a question as far as whether we should tighten the language as far as what relief the court could order. And if you could kind of give me input on the pluses and minuses of doing that. Do we want the court to have more discretion to point the agency in a particular way? Why or why not? And if not, what your suggestions might be for narrowing this. So that's a question that came up last week when we were in House Energy and Technology as well. The question was kind of, is the court going to write the rules or is the agency going to write the rules? Or did the court write the rules in that second cause of action instance? And so we found we're finalizing a written response to that question for the House Energy and Technology Committee, but we can preview the thought on that a little bit. And if you could provide us that. Yeah, I'm sure we can send the written same here. We had a couple of language tweaks to that second cause of action that we thought would make it more clear that the remedy is kind of a remand back to the agency to make rules consistent with the goals of this section and the bill. So you don't want the court to go up with the plan? That's not our place to say. It's really, but I think that the thought that we heard in that committee last week was that they want the agency to do their job as the experts and write these rules and not have a judge that's not as familiar to come up with the rule in the court hearing. So we'll have that send it to your work too. And that's typically the court. Oh, sorry. Oh, no, go ahead. That's typically what a court would do, should do anyway. And a typical rule challenge is remand back to the agency because the court is just reviewing for does this comply with the rulemaking standards, not rewriting the rules. But because this new cause of action is different, we do think it might be worthwhile to tweak the language. Are you all set for it? Yeah, thanks. As I read the subsection B here, this cause of action, there's kind of two scenarios. I mean, one is like, you made the rules, you followed the rules, but it turned out the rules didn't work, and you need to go back and rethink the rules. I think the second scenario is closer to what I think represent of, Richardson was talking about earlier where you made the rules, you made the blueprint, but you didn't do the work. You didn't fully implement the roadmap, essentially, that was laid out there. And I'm wondering just if you see how you see the remedy in that second case, like it playing out. That ties obviously to kind of what we said earlier about the resources to the agency too. It's gonna be so important to give the agency the resources it needs to make this work. Because if they could write the greatest rule, or if they don't have the tools to implement it, it's not gonna work and do what we want it to do. So the second example that I think it goes back to that language about is the rule, the substantial cause of the failure to meet the goals or requirements. And if the rule itself is not, I think the defense would be that it's not the rules problem that didn't work, that there's a whole bunch of other factors that came into play, and it could be the resources, and it could be the whole different, that people aren't following the rule. But I think that substantial cause language gives the state the ability to say, we did a rule that would put us on the path to reduce greenhouse gas emissions as required. And so that the rule is not the substantial cause of the failure to meet those requirements. I guess, and then after that, the question is probably a policy question, well now what, right? If there really just, the rules aren't being implemented or there aren't adequate resources, then what? And this doesn't address that. The other thing is the agency natural resources is kind of charged with being the lead agency on this rule making process, but there's gonna be a lot of other agencies and departments that have to kind of do their part to make this work too. So it's tricky to hold A&R accountable if there's another agency that's not doing their part or some other outside piece of this that's not the agencies fall. That's a right and a great rule. It might be that that plays out that way. So actually I have two questions. One, what you just said. So let's say the Department of Human Services is not meeting their part of it. Obviously, what's the remedy there? Like can one department sort of throw another department under the bus? Does one department take action again? Like obviously the state doesn't want to sue itself. I think that the defense to a rule challenge would be that the rule is not a substantial cause of the failure to meet the goals. And that's, I don't think we would throw people under the bus. I guess I'm just, yeah. But the rules have the force and effect of law, right? When they go through the process. And so there may be other actions that could be brought against an agency that's failing to do their part, separate from this bill. So is A&R responsible for the other departments doing their part or they're not really and each department is held accountable on their own, I guess is what I meant. I don't think they could write the rules without input from the agencies and the departments are gonna have to have a part in the process. Again, that's not kind of in this bill. They're gonna kind of be the lead on it, but they have to work with their agency partners to make this work. And so I won't be surprised to those agencies if they have a part to play, I hope. Right, so in the third cause of action, if a business all of a sudden says, wow, we had no idea we would have to put up this much money or we now have to get, we have to build something else. Is that, I mean, would they have a cause of action just based on like a resources at that point? Like I know we're talking about A&R having it now. You're talking about the third cause of action in the existing APA rule challenge. I think that that has a longer timeline. So it's a year from the implementation of the rule when it becomes final. So there's quite a period there. There's also a very robust process for rulemaking. And so there's public views that have to be held around the state. And so you would hope that people that would be affected in that way would have some awareness of it and would have participated. And then the bill sets up these kinds of reviews of the rule every couple of years too. So there may be other chances to kind of come in if that's the case in the secondary or third rulemaking. I think that's a good point. Yeah, I'm here. There was also a question about attorney's fees earlier, existing attorney's fees. Currently under Vermont law, unless a statute provides essentially four attorney's fees, it's each party handles their own fees. And so when it comes to the attorney fee provision here that is adding something to existing law as far as attorney's fees go. There are other provisions of Vermont laws, I'm sure you're aware, that do provide for attorney's fees. But this would be adding that when it comes to the APA rulemaking challenge that currently, actually, no, I take it all back. The attorney's fees doesn't apply to that rulemaking challenge. So we still wouldn't have attorney's fees there, but this does add fees for the other two clauses of action. And just on that point, so you have the deadline suit, that attorney's fees there, that may be an easier case because that probably is a motion case that either did or didn't happen. The second case, the rules in place and it's not working, that's where you're gonna see potentially more significant attorney's fees in play if someone prevails. And that it could be a very legitimate dispute over science in that case. And the agency could have done a great job, but someone else may come in with their science and show the rules not working and the court may agree and there's attorney's fees that could be substantial because we're talking then in that case, potentially about discovery and experts and depositions and all the kind of things associated with litigation. And then the APA case, the existing one, there's no attorney's fees there. And last week when we were in the house energy and technology committee, the attorney general was there and he again supports attorney's fees because it gives teeth to the bill, it holds government accountable and knowing that we have to defend these cases, the best defense to a case like this is to do good rules, make them work, meet the goals, meet the requirements. And that's again, the resource issue too. We wanna make sure that works and then we don't have to, there's no damages here. It's just attorney's fees and we can prevent that by making the rules and meet the requirements. So this may not be a question for you, but I'm just wondering, because I don't know how government works compared to like private organizations. Does the state have the kind of insurance that covers the suit if somebody does sue to help reimburse for lawyer's fees or that's just a surprise in a budget in a year? I don't know the answer to that. We tend to do enforcement work and not the transparency that might be down. And if the state wins and it's Fripples, does the AG's office get reimbursed for the time? Like so you actually would fill out like this is what? The fees in it, the same rules would apply to us as would apply to plaintiffs. And it's important to know that when the court looks at attorney's fees, you have to keep a documented record of your time that you spent on this. And the court also applies a reasonableness standard and that applies kind of a localized value of attorney's time. So you're not looking at like a New York rate, you're looking at a Vermont rate. And so we would track our time if a case were Fripples and we prevailed, we might seek our attorney's costs as well. And again, you don't know where that money goes. Part of the money we get goes to the general fund. Okay, yeah, so I'm assuming the lawsuit money comes out of the general fund but again, short for last, I'm wondering if that's your point of order. Thank you. Take a break and this is part of the story. Yeah, so you talked, thank you. You talked a little bit about how this is a little, is different from the scope and not being an attorney. Do we have any idea of how much we're sort of putting the state on the hook for each one of these based on work that you've done in the past? Just so we can have a rough idea. It's tricky to say, I think last week when that question was asked, it was the idea that this isn't, we're not talking about damages here. The remedy is to do the rule, make the rule work. So it's less than that way than the case where we would have damages in play. But it's tricky to say on the attorney's fees what those might be, except to say that and I'm channeling my boss from last week, he said that this climate change is so important, that we kind of all need to be in on that and that the worry of attorney's fees should not trump the need to move forward with meaningful greenhouse gas emission reductions. And so. So I guess that brings me to the next question. Should we be looking at amending the current law and the way things work so that attorney's fees can be sought in any situation where it's so much challenging of all? Well, the APA, you're saying add that to the APA challenge. I don't think that's our place to say in that the... But the attorney general's office is testifying very strongly in favor of doing it in this case. So why would it not be your place to talk about that in other cases? In other, all the different rule makings that this thing does. You're the ones that... We're not asking for in the APA rule making for this bill. We're only saying for these two new causes of action they're created for the deadline suit and for the does the rule work case. Attorney's fees will be appropriate there. We're not saying that in a rule challenge there should be attorney's fees to these rules. But isn't there an accountability and transparency piece to those as well? I think that's fair point. But I don't think there's so much rule making that goes on in state government on varying levels of significance that I don't know that we're in position to say. I'm not offering to say that they were right. I understand that. Yeah, but I think that... I understand that. Yeah. Just a follow up question kind of relates to the attorney. As far as the number of cases that we can think might be broader than this. My understanding, tell me if I'm wrong on this, is that you have a deadline that's missed if it's missed. And I guess any number of people could bring a lawsuit for that. But presumably that would be all consolidated for one case because it's one challenge. And I would think the same thing would happen if the target's not met. When there's a definitive time when that inventory comes out and if everybody wants to bring a lawsuit on that, once again it would be consolidated into one case. Would it not? So I mean it's limited scope of the number of cases that we're talking about in this bill. And we get those questions last week too was the consolidation question and also kind of what about the class action kind of scenario where you might have multiple. And so in both cases we thought that a court would consolidate similar cases. We probably are not looking at a situation where you're paying five, six, seven attorney's fees. It's really one plaintiff's attorney's fees, reasonable fees that a court would then distribute among multiple attorneys. But that's the way we would envision it. I would see like in the next 10 years if all goes wrong for the government we're talking three cases, maybe big cases. The third case being if there is a challenge for the actual rulemaking which is not necessarily going to happen. That's fair. All right, let's take a break and I think you have more questions. Yeah, it's a one-question. Yeah, okay, so let's take about 10 minutes or so. Thank you. Do you want to touch base really please? Go ahead. So I'm not sure if you had additional comments or what we're looking at so far or otherwise I'll have some other questions. So just by in a preface this all looks great, I think it's coming along really well having the cause of the actions but I'm still concerned that when plaintiffs get to court sometime in the future they have the barrier of having to prove standing to be able to proceed with the case. They have to show their particularized injury. They have to show causation. They have to show redressability. My question for you and it's really not on the particularized injury component of it but is if there's anything, well first of all your view of the bill as it stands right now and if there's anything additional we can do to help individuals be able to establish standing. And I just looked recently at the Juliana case and out in the night circuit that looked at an issue of standing with respect to climate. It's different, it was suing the federal government and such but that's kind of really brings us to the fore for me at least. And so I'm wondering if you could comment on that. And again, if you don't have anything particular right now if you could think further if there's anything in here as far as establishing a redressability through a procedural injury type approach or something. I know that we alone are not gonna solve climate change through this bill and that's so we have to make sure there's still an avenue for having folks proceed. So I'll be quiet just a little bit. So I'm standing at, Laura if you want to answer that you've done some research on the standing piece. Sure and I think the committee may already be aware of this but as currently drafted and the two causes of action in this bill it says any person may bring the cause of action and that language, the federal courts have interpreted to be as broad as possible under article three of the constitution. So under article three and this is both state and federal in order to get into court there has to be a case or controversy and part of what that means case or controversy in quotes part of what that means is that a person has to have standing and of course that's injury that's traceable to the defendant that's redressable by court. So when the language any person is used that typically means and of course I've interpreted it to mean if they have article three standing they get in the door. So there's not any other statutory barrier in this bill to prevent a person from getting into court. So what is that, there's the article three standing and then there's kind of something else that you're referring to. Sometimes for statutory causes of action there may be additional requirements. So for instance it may say any person I'm making this up who lives on Wilson Street can bring a cause of action, right? So any person would be anyone with article three standing but Wilson Street further narrows who can bring a cause of action. This bill doesn't have that. It's broad, right? And it's consistent with the federal similar citizen suit bills that we're familiar with in environmental law. And in terms. This idea that any person can bring in challenges consistent with kind of similar provisions in federal law for different environmental statutes that have citizen suit provisions. It's a model we're familiar with in environmental law. And the environmental court is familiar as well. I understand on the federal side where you'd want to say anyone can, Vermont law, would there be a possibility of limiting it to people within the state or lawyers or groups that are practiced or registered in the state? I think that's kind of getting to her point about kind of that Wilson Street example if you wanted to kind of put those in order. But can we? Is that allowable? I think that there are other examples of that where we've seen similar limitations on what a person, article three standing plus. So that's something that's in law in other places. So the answer I think is yes. So I think that as a commentary on this, if we are going to sort of create a new mechanism for people receiving court costs and attorneys fees back, it may be worthwhile to examine if we want some citizens group in California being able to sue and Vermont courts for this purpose. So yes, we can then ask some of the other folks about that as well, but does article three standing already do that if you could go on? I mean, does it already limit practicality to Vermonters or not necessarily? But if you could describe article three standing, maybe to answer that question in that context as well. I wouldn't say necessarily it has to be Vermonters, but certainly if there's a group out in California that really has no interest in Vermont or is not going to be, would not benefit at all from the rules that Vermont is supposed to promulgate and adopt, that person would not have an injury or that group would not have any injury for what's happening in Vermont. So it could be difficult for that group to get into court. So article three standing is already a gatekeeper in that sense. Even when referring to global climate. Well, that would be a question. So I think the question would be, does a group out in California have a sufficient injury from Vermont's failure to adopt sufficient greenhouse gas reductions to be able to get into the court? That would be a question. Or New Hampshire. Or New Hampshire. Or perhaps there are Vermonters who come here in the summer and they enjoy the lake and now there's more algae blooms. And so that would be an example of something that would probably qualify. Yeah, I guess the question is, would the injury have to be tied to Vermont? And you're saying not necessarily. I suppose one would have to, and this is just hypothetically, one might have to show that Vermont's failure to reduce greenhouse gas reductions actually has an effect on this person in California. And what that would look like for that showing, I think it's hard to say. And just a word on attorney's fees that kind of fits into your question as well. When the court considers reasonable attorney's fees, the guidance that comes from the, in Vermont, it's the Perez case from 2006. And the starting point is called the load star amount, which is maybe something you guys are familiar with. And so that's the number of hours, reasonable number of hours spent on a case multiplied by a reasonable hourly rate. And that is based, so that means that that amount is based on a reasonable market rate, not necessarily was paid to the attorney. So it's not just the attorney showing the court his bill, or her bill, it's based on that kind of calculation. And it requires an accurate record of time showing what you spent on the litigation. And then other factors that can be considered by a court are rates charged by other attorneys for similar services in the same vicinity. The experience of attorneys, the background of attorneys, the novelness of the issue before the court. But when we think about a court considering reasonable attorney's fees, we view it as there's an argument you have to kind of look at the Vermont rates, not the California rate. So regardless of who the plaintiff is, the attorney's fees under that Perez case would seem to be based on kind of what's the going rate in Vermont, knowing that there are some other factors about experience and novelty or the issue and that sort of thing. But there is a role for kind of what's the Vermont rate, so it doesn't matter where the attorney's from necessarily, the kind of what people pay here. So it's not just the bill submitted? It's not just the bill submitted. That's not enough for a court to say, you paid this, here you go. So thank you more to it. So that all sounds good in a world that I don't live in, so to say. But most citizens don't have the money to put up with a lawsuit like this. And yeah, big staff attorneys that come in, it doesn't matter from where they are, they're gonna come in here, they're gonna fight for what they believe in and stuff. So it seems like to me this is right for abuse. Like we're talking like it's not gonna happen. We know it's always the case. So how are we gonna deal with that? Deal with that it doesn't get abused. I mean, we know we have a problem with climate, we know it's the hot topic, the hot button. But how are we gonna keep it from being abused, from monetary, from regular everyday citizens for people that are in this business that are trying to do the right thing? So it's your question, I'm trying to understand. The question is kind of is the impact of the rule gonna be felt on everyday people or is the question about how does the state avoid paying attorney's fees to folks that challenge the war? I think it's going to be most citizens won't have the money to go and deal with these lawsuits, right? So the attorneys fighting these people will just run out of money and bankruptcy or whatever happened, they won't be able to fight it. So last week in the House Energy and Technology Committee we got questions about kind of the ability of the citizens of Vermont to have a say on the rules and kind of have their voice heard. And so if that's kind of where your question is rooted, I think that that kind of robust rulemaking process allows for public participation in the rulemaking process. When a case gets brought, I think that if your question is, will people have the resources to take on the state? I don't know that there's an answer for that, but we can provide it. So can I clarify as well, your concern, can individuals can't be sued under this? Is that the concern? Or businesses can't be sued under this either. This is opening up a lawsuit against ANR, the Agency of Natural Resources. Okay. I mean, I don't know what the rulemaking would somehow create an ability to sue an individual or not. No companies, nobody that's trying to conform to these statues. I think the question goes to kind of what is gonna be the effect of the rule on Vermont as a whole. And I don't know that we have an answer for that because we don't know what the rules are right now. And if I could clarify one other thing and maybe you should do this instead for me. Could you explain how the Clean Water Act works with enforcement where individuals can actually bring the lawsuit against a private citizen and that this is not that? But maybe you could explain a little bit. I'm happy to say that we have a water law expert here with us today. So Laura, we'll be happy to answer that. And here's the boss. No, but it's basically just what you described under the Federal Clean Water Act and lots of other federal environmental statutes. Citizens, not just the state, can bring enforcement actions against persons or entities that are violating the law. So if someone is discharging toxins from an industrial facility into the Wigistri River without a permit, if that's a violation of the Federal Clean Water Act, any person can bring a suit, any person is standing against the violator and get an injunction and penalties, no damages. In Vermont, we don't have a citizen suit provision currently for our environmental laws. And so the state is the only entity that can enforce those provisions. So that's basically what it is. So for this current bill, the cause of action is just creating a cause of action against the state, not against entities that may be subject to the rules that ANR is going to adopt. So there's currently, there wouldn't be a cause of action for citizens to bring for violation of the rules. If that answers the question. Yeah, for right now. Yeah, for, I mean, at the level that we're at, yeah. I mean, I have a lot more to do with money with us. So, digging back to Article 3 and standing, if we describe that briefly for us and also, again, if there's how that works with this bill, if there's anything else we can do to address the barriers that Article 3 standing could possibly raise in this kind of a case. And then if you don't have any ideas, right now you can ponder, but if you could just kind of describe it. Sure, so it's basically to be able to get into court under Article 3 standing, a person or organization, a corporation needs to have an injury. And that's typically can be pretty broad. It does need to be imminent and actual, meaning it's not something hypothetical that may happen in the future. Trying to think of, there's lots of good examples from environmental law that I'm sure some of the other witnesses could testify about as well. But for instance, there was a federal case that's kind of famous where a citizen was trying to bring a case under the Federal Endangered Species Act to protect a species, but the Supreme Court essentially said, well, you don't have an injury. And the species was not somewhere this person lived, right? It was, I believe, overseas. And the court said, far away, you don't have an injury because you don't have any concrete plans to actually ever go back to that place, to ever see the species again or ever enjoy the species again. So that was an example where there wasn't a sufficient injury because it wasn't imminent, it wasn't actual, there were no plans. Things that have qualified, certainly, if you live near a river that's polluted because of an upstream industrial facility, you smell the pollution, you see the pollution, you used to go fishing, you can't go fishing anymore. Those sorts of things qualify as injuries. For the fairly, the next requirement is basically causation, but it's not that stringent. It is your injury fairly traceable to whatever the defendant has done or failed to do. So in the industrial facility example, you would say it's fairly traceable because this is the facility that dumped the toxins into the river that's killing the fish, you can fairly trace that to the defendant. In terms of redressability, and this is the third requirement for standing, the court has to be able to do something about it. So if it's a problem that the court simply cannot fix, if there's nothing the court could do to actually help to fix the problem, there's no redressability and there's no standing. When it comes to the types, certainly the first deadline suit, the first cause of action, those cases in the federal level have certainly helped that citizens do have standing to bring those suits. The redressability, I think, and my initial thought is the bill, I don't have any ideas right now about what can make it more clear that a court could provide redressability because the bill clearly says if A&R doesn't write the rules, the court has to tell A&R to write the rules. Or if A&R doesn't write sufficient rules, the court has to tell A&R to write sufficient rules. So those bills seem to me to be fairly straightforward in terms of, yes, the court can redress these issues. I don't know if you have additional. No, I mean the findings, the important kind of the intent. Of the bill? Yeah. In terms of injury? Setting out an injury. Well, and when it comes to climate, I guess this isn't something that I looked at closely. It's what's sufficient to establish an injury for climate change and greenhouse gas reductions. I think with the deadline suit, it's pretty easy. There's been a failure to, about the rule. The court might look to, as Rob was saying, might look to the legislation to figure out the injury and the injury needs to be tied to the problem that was supposed to be addressed, right? So you can't just have an injury that's not tied to climate. I mean, the right change under this bill. So the findings in the bill might be relevant. The court might look to that to say, oh, climate change is a problem. It's causing XYZ. This person is suffering XYZ, that could be relevant. If the findings in the report refer to, I mean, just reading the findings in the report and all the global issues related to climate change, I'm just wondering how that doesn't open this, wide open for legislative intent. In terms of injuries, showing injuries. I think regardless of the legislature's intent, there would still have to be an injury shown. So I don't think the mere fact that their findings could, per se, establish an injury. And my understanding is the findings are, based on my perusal, reasonable, they're founded in the literature and the science. And so, maybe. Yeah, I think that's the point. The signs of climate change are all around us. Hence, the need for something like this right away. How a court would go about parsing that out, short of saying that anyone subjected to any issue related to climate change would have an injury. I'm just not seeing it, how it's narrow. That this is one of the most broad pieces of legislation that I've ever seen. And I'm not fighting against this, I'm a co-sponsor of this legislation, but I'm just having a hard time finding how someone wouldn't be injured. And the, but article three standing is its own consideration by court. And so, the broadness of the findings and intent doesn't necessarily impact that because someone still has to show that they're injured under article three. Maybe someone argues very broadly that they have standing under article three, but I don't think it's gonna turn on the findings and the intent of this bill, even if it's broad. I have a question that if I'm completely out of base or don't know what I'm talking about, you can dismiss it right away. So when an action is taken against the state under this bill, what potentially, if it was proven that the agency of natural resources did not do what it was expected to do, what would the state potentially have to pay to the people bringing the action? That's difficult to say in the abstract. It kind of goes to that case by case thing. It's up to say that we think the first cause of action the deadline suit one, that's really black or white. The rule was written or it wasn't. And that is probably a case where it's a motion to dismiss or a motion for some of the judgment. It's a legal filing paperwork that may be adhering, but it's not a full scale litigation because it's so black or white. So probably not as much on the first cause of action. The second cause of action does open the door to potentially more in attorneys' views as a payout because that's where you have this kind of science battle. It could be a battle of the experts and you have attorneys' fees, costs, depositions, litigation, expenses. So there's potentially more risk in the second cause of action than the first, but it's difficult to say here's a dollar amount that we might be subject to at this point. But aside from just the costs of working through courts, is there any kind of payout that would be given to someone who's any damages? No, there's no damages in this bill. The remedy is write the rule or revise the rule as we read it. There's no payout for damages and that's an important distinction. But this is just talking about attorneys' fees and the remedy is craft the rule or rewrite the rule. I think that answers my question. If I remember the second half of what I was going to ask, I'm sorry, can we do this? Yeah, yeah, I'm keeping it to the beginning of this section. So I guess in the back of my head looking at this, I'm envisioning someone bringing a suit based on feeling that we didn't go far enough. Is there something in this that allows for us to be some sort of way to bring a case about going too far or litigating climate change as a principle or something like that? If someone felt that the rules were too stringent, yeah, well you have the APA remedy there, right? So you can challenge the rule when it comes out up to one year from the day of its final. That's potentially, I don't know that there's a new cause of action created for what you've described, except to say that that third existing cause of action is where a case like that might happen. And that's what happened in the St. Cobain challenge to the PFOA rule. They felt that the state's standard of 20 parts per trillion for PFOA was too stringent. And they brought a rule challenge where we eventually settled that without a determination. But if their case was that 20s too low, it should be higher. And so they used that APA process to bring that case and people do that with rules. They say they're too restrictive or too stringent. And that's under current law. That's existing law. There's no attorneys fees with that, it's just, yeah. And I know that other states have done this as well. Is this sort of modeled after, do we know if this is similar to the way other states do it? I know it's gonna be slightly different because we have a different process. That might be a question best opposed to the legislative council. We have kind of, yeah. I'll do that at some point, okay. I'll ask you. Just go back and forth. So the costs, cause I don't know, and it's a good question in general. The costs of attorney fees and things through court proceedings. What funds does that come out of? I mean, this comes to be a fairly expensive trial and we'll be in one decent amount of attorney fees paid to the winning side. Where does that come out of state government funds? And that's, we can certainly provide an answer to that as our understanding. I don't have that available to me today. It was similar to the question that was posed earlier about whether there's insurance for this. So we can certainly provide a little more if you'd like on that. As to our understanding. Thank you. Thank you very much. Thanks. My name is Megan O'Toole. I'm the Associate General Counsel for the Air Quality and Climate Division of the Agency of Natural Resources. I have a few things to mention and I'm happy to answer any questions that you might have for A&R to the extent that I can answer when I will and I will find answers for you if I can. Just in general, I think my comments would largely align with the statements made by Laura and Rob from the Attorney General's office to the extent that we agree with the legal answers that they provided in terms of the legal mechanisms that are in the bill and the legal constructs that are within the bill. A&R is in the process of kind of getting feedback to House Energy and Technology Committee regarding the resources that would be needed to participate in the Vermont Climate Council process that is established in this bill and then also the rulemaking activity that would be required of the agency and then the implementation of the rulemaking. So that information is being compiled right now and will be provided to that committee. We certainly are concerned that there would be significant resources associated with the work that needs to be done in this bill and we're, as I said, determining what those needs will be. In relation to the attorney's fees section of the cause of action provision that you all have been discussing today, I think we are concerned and this was alluded to somewhat by Rob and Laura that the second cause of action in particular, the court is really asked to weigh in on a pretty subjective question and consider that question. And so we anticipate that attorney's fees associated with litigation in that cause of action would be fairly significant and we are concerned about the impact on the agency of that particular, attorney's fees associated with that particular cause of action in the bill. So those are just some general statements I wanted to make but otherwise mostly in line with what Rob and Laura had to say to answer questions. So for Martin's question earlier, if we were going to look at language that would further qualify in that second, have you all thought about language that might help clarify the parameters around that second cause of action? In relation to the court's role or? Yeah, in relation to the court's role. So they're not sort of essentially setting policy in the state, is that something here? And we've been talking with the attorney general's office about that language and I think we agree that a remand to ANR to determine how to mitigate if that's what the court decides needs to happen would be appropriate. So the litigation that would proceed that would happen under the subsection B would that that would revolve around whether the rulemaking or the rules were a substantial cause, is that the concern? That is the language in the bill. Oh, regarding kind of the subjective nature of the question? The concept of where this big battle of experts and whatnot would be, because it seems to me that the starting point is you get the inventory and we've either made it or not, and then of course you get into the, was the rulemaking a substantial cause or not? I mean, how do you see that playing out that that would be as complicated as you suggest? And it may be, I'm just curious, I'm just... I think much like Rob and Laura said, it's really hard to predict what exactly that's gonna look like, but I think I would agree with you that it would require a lot of resources in terms of fact witnesses, expert witnesses to answer that very subjective question. And so I think that's where our concern lies is that it would be a very resource-intensive matter that we would need to be engaged in. Is there a fix that you see? But the day of order is... I think we would be in favor of attorney's fees not being allowed for that cause of action. And if that, I'm assuming that the bill has introduced, is the ANRs not supportive of it? My deputy secretary testified last week in House Energy and Technology and I don't believe that he has taken a position on it. So you're neutral on it, and even if the changes are made, it's still a neutral position as far as you know. I can't answer that question. Okay, thank you. Do you have any viewpoints on whether there should be limited language as far as that any person being able to bring this as opposed to any person with some contact or amount? I'm not sure what the limited language would be, but do you have any viewpoints on that? That's something that we're still considering and we haven't really reached a conclusion on whether or not that should be narrowed and to what extent. And then also if you have any input on how you would see a play out as far as the taking prompt and effective action, what that showing would be for the ANR, or just any comment on that? Prompt and effective action in relation to? In relation to getting more reasonable, our reasonable period of time extension for completing the rulemaking or coming up with something that will meet the targets in the second type cause of action? I'm not prepared to answer that question right now, but I can certainly give that some thought and get back to you. All right, thank you very much. Thank you. Thanks for having me. I appreciate the opportunity to come and speak with you. My name is Jen Duggan and I'm the Director of Conservation Law Foundation. Prior to joining CLF, I was the General Counsel for the Agency of Natural Resources. And I don't want to repeat a lot of what has been said, but I thought it, I wanted to sort of underscore a few points that I think are really important to the conversation. One is that this cause of action section is really a backstop. You know, as the Attorney General said last week, you know, the best defense is compliance with the law. And so this cause of action section does not kick in unless ANR has not done the rules that are required by the statute, you know, or they, we haven't met those emission reduction requirements. So it's already sort of narrowed and limited. The other thing to highlight is that the sponsors have been really thoughtful in terms of thinking through how to narrowly draft this accountability measure. There is no financial exposure in terms of penalties for the state. There's not an ability for, you know, private citizens to create, you know, to get a windfall. And the remedy is really limited to a remand back to the agency to do what they're required to do under the statute in the first instance and reasonable fees to support that policy of making sure that there are resources available for government accountability. And the third concept is that, you know, we're here because this is really necessary. We need binding requirements and we need accountability. We are not on track to meet any of our climate commitments or the goals. The, in Vermont, we have the highest per capita greenhouse gas emissions as compared to our neighbors. And we have an obligation to take action to do our part for global climate change, but also to respond to the impacts that our communities are already feeling from climate change. And we've talked a lot about how this bill addresses mitigation of greenhouse gas emissions, but it also requires action to build resilience to make sure that our communities are prepared for climate change. And we know that even mitigation and all of these resilience measures bring about economic benefits for the state, public health benefits, environmental benefits. So this, you know, we've tried the goal route. We've done a lot of small steps to address this crisis, but those have not been sufficient. And so these binding requirements in this bill and an accountability framework that's narrowly tailored is really critical to make sure that we can meet this challenge. The, some of the, I'm just trying to, I don't want to repeat what folks have said and I want to make sure that, you know, my testimony is as helpful as possible, but maybe one of the first places that I'll start and then please interrupt me with questions is the question around standing in any person. And, you know, standing, article three standing is actually a fairly high bar, particularly in the context of climate change. And so your question about can some, you know, interest group in California bring in claim that because, you know, the state of Vermont hasn't done these mitigation rules and they're impacted by climate change, they somehow have standing to sue. There's an injury in fact component to it, but there's also causation, right? And so the, that individual in California may be able to say, I'm being impacted by wildfires. We know this is caused by, you know, climate change, but they also have to say, and it's, this injury of mine is fairly traceable to the state of Vermont's failure to do rules to mitigate GHG emissions in Vermont. And so the standing inquiry is robust and I think we'll really limit who is able to get into the door and the folks that will be able to show those types of injuries are more likely going to be closer tied to Vermont just by nature of that standing test. So I'll stop there in case folks have other questions on standing. So yeah, I'm wondering if there is anything else that could be done in the language with findings, although findings don't necessarily make it all the way through this body or intent or if there's anywhere else, because frankly that is my biggest concern about this bill is that we're gonna have this all laid out and people aren't gonna be able to get into court because it is a very high bar. And I know we can't lower the bar very easily because it's a constitution of federal constitution. But do you have any input on if there's anything else that could be done or if you do think that there is a clear path to establish article three standing although it's a very high bar? Yeah, I think that Laura Murphy started to touch on this. There is case law around procedural causes of action. So where a statute gives a citizen the right to challenge agency action, that's been unlawfully withheld, so a failure to act in compliance of the statute, like in subsection A of this bill. There is a somewhat relaxed standing requirement for redressability and immediacy. And so recognizing that there is a lack of clarity about exactly what those rules might be when they're promulgated, the courts have found that there is standing where the rules are designed to address the injury that the plaintiff is complaining about. So I think that's an important concept is that we are, there is case law that addresses the procedural injury of the kind that a plaintiff would be alleging here. Is it clear enough in here that that's available? That is federal case law and Vermont courts have adopted the article three standing test and frequently look to federal case law when they are making decisions about standing. Is it clear enough in the bill that that avenue is available? I think so because that is the words of the subsection A. Where it's, you know, there's a cause of action when A&R fails to do a rulemaking by a deadline. But how about subsection B? In subsection B, that is a little bit different, although I think that there are some similarities. You know, this is an interesting component of the bill. But I think that the causation component, you know, this, as I mentioned in the opening, the when we reduce greenhouse gas emissions, you know, there's global climate change. You know, that's one of the things that we're trying to get at here. But when we reduce greenhouse gas emissions, we also have very tangible public health and environmental benefits that look more like traditional injuries under environmental law. And so I think that, you know, you can always include additional information and the findings and the purpose of the statute to say that, you know, we are, this bill is intended to mitigate and reduce greenhouse gas emissions. And doing so, and also to get all of the benefits associated with doing that in terms of public health and environmental benefits. So you can always include more robust language in the findings, you know, and a purpose statement in the bill. Is that something that's being done upstairs? Is that energy-clicking? They are considering, you know, I was in there on Friday afternoon when they started discussing potential issues. And so there was at least one of the committee members that had suggested a finding related to the public health benefits and the other benefits associated with. Yeah, I guess it's just one of them. Yeah, this is just a, so given the barriers to the broad term of any person, is there any real reason not to restrict any person a little bit because as to avoid frivolous cases or it's something that won't have any actual, couldn't actually be brought forward with frivolous? I think that there, you know, there already are several deterrents to bringing those types of claims. One is sort of the attorney ethical rules. If, you know, you move forward with a case in bad faith or something that is frivolous or lacks any reasonable basis in law or fact, you can be sanctioned and you can, you know, have ethical challenges going forward as a lawyer. That's a really big deterrent for a lawyer. And then the attorney fee provision, you know, in the statute also, you know, makes clear that if a plaintiff, you know, that a defendant, you know, may be entitled to fees if a plaintiff brings a case in bad faith or that's frivolous. So I think that there are already pretty significant deterrents from a plaintiff that would be acting in bad faith. So what's the argument for maybe, oh, I'm sorry. Great, good. Well, if that's a follow-up question on that. Yeah, just a quick thought. What is the argument for having that broad, for having any person without any qualifiers? I think that if the intent is to hold, is to ensure that there's accountability for government action that may impact an individual, you want to have that be accessible to them. And I think that I would worry about trying to define who is in and who is out in terms of who is a Vermont citizen, you know, who is allowed to bring a case and who isn't. I think that because the article pre-standing test is a fairly high bar and is an important gatekeeper, it's not necessary and it would create, you know, other challenges if you try to start defining who is in and who is out in terms of protection of the statute. I was going to ask just a broader question, which is I know because I was involved in the earlier bill and this bill that part of what we were looking to is what states like Massachusetts did and what the impact of having an enforcement mechanism was. And I know the Conservation Foundation was really involved in the lawsuit that came, you know, I helped bring the lawsuit that came for Massachusetts. And I wonder if you could just talk about the value or impact that that enforcement mechanism had there for somewhat comparable legislation and maybe how what we're proposing here is similar or different from their experience. Sure, there is no express cause of action provision in the Massachusetts Global Warming Solutions Act. And so there was a significant sort of pathway through the courts to establish that, to get to an agreement on what the remedy would be. And here, because there is an express cause of action section, there's a very clear path to court. There's certainty for both the agency, for the plaintiff, it reduces uncertainty around the litigation, you know, to a greater extent. Then there would be otherwise. And it really, you know, this particular provision is really narrowly tailored to focus on making sure that, you know, there is accountability and that ANR does what they're required to do under statute and nothing more. And I think that, you know, without that, there is without a clear procedural pathway, without that certainty around remedy, there is more to, you know, to discuss with a judge. And there's just lack of clarity there. So I think that this sort of gives certainty to everybody about what the rights are and what the remedy is. And can you tell us just in the Massachusetts case a little bit about what the remedy was there and how that may or may not? You know, it's been a long time since I looked at the specifics. And I'd be happy to get you a really detailed summary of that. But basically, you know, there is an order, there was an order to do, to implement the GWSA, their GWSA. But I can get you more specifics on exactly what that order entailed. When you brought this, or when the conservation law found out it's not the first one. Yeah, I wasn't there, so it wasn't me. Do you know if it was under a similar provision to the section two, the cause of action? Or do you have any idea? My understanding was it was under the Massachusetts Administrative Procedures Act or their Declaratory Judgment Act and not, there was not an express cause of action in their Global Warming Solutions Act. Okay. I'm just trying to figure out, you know, I guess it's the history of Appropriations Committee for me, I'm having a hard time getting my head around something that I don't know the cost of and willing to move that forward without using a rough idea of what that costs. Could you comment on Ann Ar's concern about removing that attorney's fees from the second cause of action? Sure, and just in thinking through potential costs, it's very hard to put a number on that. But you know, under subsection A, that case really looks like motions practice. So people are filing a brief papers that say they either did or did not meet that deadline. So that's gonna be really limited in terms of the time for both parties. For B, just as a reminder, this will come into play three times between now and 2050. So this is not something that is accessible at any moment in time. It really is tied to the production of the emissions inventory and the reduction requirements, which are 2025, 2030 and 2050. And so that sort of limits it right there. Except if you're sitting upstairs in the year where that bill hits. Yes, but just in terms of thinking through over the next 50 years and the amount of money that the state might be subject to, the other thing to note is that this is all gonna be based on what the rules did or didn't do. And as part of this bill and as part of the Administrative Procedures Act, the agency is required to develop robust records in terms of why they're doing the bill, how it achieves greenhouse gas emission reductions. So all of this work, a lot of this work has to happen as they're doing the rule makings as part of the rule making process. The other sort of way that this is limited in terms of financial exposure is that the remedy in this particular case directs the agency to go back and do more rules. And a big component of time in a trial or litigation in many cases is a sort of a dispute about what the appropriate remedy is. And so that's just off the table. And so I can't come up with a concrete number for you, but I hope that's helpful in terms of this is how this is limited in many ways. Do you know if the Conservation Law Foundation was able to recover attorney's fees when the Massachusetts suit is brought? I don't know the answer to that question, but I'm happy to find out. As I agree with the access to justice, you wanna make sure that people can do it, can bring in action. But at the same time, I need someone to tell me something that's more concrete. I'll give some thought in terms of how we might be able to provide some information about costs. The other point I wanted to touch on is, and you sort of mentioned this, is this important policy rationale for allowing for fees. There's a pretty significant differential in terms of the balance of power between citizens and government. And so this really attempts to address that imbalance of power while creating the, while balancing against frivolous or bad faith lawsuits, there is a deterrent built in here. So I wanna make sure I understood for the subsection B, the substantial cause of failure of that component, it's your understanding as well that it's just a remand, straight remand that we're intending here. And if I won't have to comment on language that we don't have yet, but we'll certainly, when we see language that hopefully tightens that makes it clearer. Yeah, and I think that it's important to just remember that the separation of powers doctrine applies and judges are not allowed to engage in legislative making or implementation of laws. And so in terms of the rules of the legislature and the executive branch, and so there is some discretion that judges have in terms of remanding for rulemaking, they may give guidance and information to say the rules were deficient because the transportation sector didn't meet X, Y, and Z. That's different from saying you must regulate these things in the transportation sector, right? So there's a little bit of discretion in terms of what guidance they give back to the agency, but the further they drift towards dictating the substance of a rule, there is a higher risk of being overturned on appeal. They're in sort of dangerous territory the closer they get to actual rulemaking. Continue ahead, I'm going ahead. Just trying to see if there's anything else I wanted to touch on. I think the other thing came up that I think we've kind of talked through it, but it's my, in terms of subsection B, it's my understanding and it is the way that I read the bill is that it is not intended to put A&R on the hook where things outside of their control have occurred and are the reason why we have not met the emissions reduction. So if this plan will require a mix of legislative and appropriation and regulatory strategies, if the legislative component of that is 90% of the emissions reductions, A&R does the rules, but the legislature doesn't pass new laws to get there, A&R is able to point to that and say, our rulemaking is not a substantial cause of the reason why we didn't achieve these reductions. And so I think I just wanted to make sure that, that's the way that I read it and understand that. All right, thank you. Thank you very much. Very much. Thank you. All right, so we are adjourned. Should we discuss for just a minute as far as what else is going on? Sure. I'll be right back. Thank you. Thank you.